Weaver v. State

• Decision Date: 28 June 1991
• Docket Number: CR-89-772
• Citation: 591 So.2d 535
• Parties: Brent Purvis WEAVER v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 535

591 So.2d 535

Brent Purvis WEAVER v. STATE.

CR-89-772.

Court of Criminal Appeals of Alabama.

June 28, 1991.

Rehearing Denied Aug. 23, 1991.

Certiorari Denied Dec. 6, 1991

Alabama Supreme Court 1901840.

Robert F. Clark of Clark, Deen & Copeland, Mobile, for appellant.

Don Siegelman, Atty. Gen., and James F. Hampton, Spec. Asst. Atty. Gen., for appellee.

PATTERSON, Presiding Judge.

The appellant, Brent Purvis Weaver, was indicted and convicted for the offense of first degree assault, as proscribed by § 13A-6-20(a)(3), Code of Alabama 1975. He was sentenced to 16 years' imprisonment and was ordered to pay $25 victims' compensation assessment, court costs, and restitution of $5,026.47.

The prosecution's evidence tended to show the following: At approximately 3:00 p.m. on Sunday, December 4, 1988, a "pretty day," Billie Parsons was driving her 1986 Chevrolet Blazer vehicle east on Moffat Road, a four-lane highway. Her vehicle was travelling in the right-hand lane when she saw an oncoming Ford Pinto automobile swerve toward her. The Pinto had been travelling west on Moffat Road in the far lane, and Parsons saw no other vehicle in the area when the Pinto started skidding. After the Pinto collided with Parsons's vehicle, Parsons lost consciousness. When she regained consciousness, she saw the appellant standing in front of her car and heard him speaking loudly and "using real bad language."

As a result of the accident, Parsons was hospitalized four days. She was treated for numerous facial lacerations, including a two-inch laceration to the right upper eyelid, and for fractures of the bone surrounding the right orbit and the bone holding the eyeball in the eye socket. She also received bruises; two teeth were damaged; her jaw was misaligned; and she had no feeling in her face. Her eye injuries required an operation to restore and maintain complete eyesight, and at the time of trial, she was anticipating two more operations.

Parsons testified that, when she saw the appellant's car start skidding, she saw no other vehicle in the area; that, prior to the appellant's car's skidding, nothing called her attention to the car; and that she was never face-to-face with the appellant.

John Matthews testified that, as he was driving his automobile in the right lane of the westbound lane of Moffat Road, the appellant's vehicle passed him in the left lane; that, after the appellant's car pulled back into the right lane, the appellant's car started swerving and fishtailing; that the car then crossed the median into the eastbound lane; that he saw no vehicle interfere with the appellant's vehicle before it crossed the median; and that he noticed no reason why the car should have been swerving. He also testified that the speed limit in that area was 45 miles per hour; that he was driving between 40 and 45 miles per hour; and that he could state only that the appellant's car was travelling faster than he was. Matthews further stated that, when the appellant's car passed his, the appellant's car pulled back into the right lane because other cars were ahead in the left lane. Matthews testified that, after stopping at the scene of the accident, he saw the appellant standing in the road by his car, but that he did not approach him and that he did not hear the appellant say anything.

Pearl Matthews, John Matthews's wife, testified that, in her opinion, the appellant's vehicle was travelling over 50 miles per hour and that, when she observed the appellant after the accident, he "seemed to be enraged, upset," but that she could not hear what he was saying. Mrs. Matthews also testified that she did not see any apparent cause for the appellant's vehicle's skidding across the road other than his jerking the wheel as he returned to the right lane after passing their car; that the car just ahead of them and in the left lane was travelling "around" the speed limit; and that the appellant lost control of his vehicle as soon as he steered in front of the Matthews's vehicle.

Trey Oliver, who at the time was traffic accident investigator with the Mobile Police Department, testified that his investigation of the accident revealed the following: the roadway where the accident occurred is a four-lane straight-away with one center turn lane; the minimum speed of the appellant's vehicle prior to impact (the speed of the vehicle to leave the skid marks) was 46.5 miles per hour; and a conservative estimate of the minimum speed that the appellant's vehicle, prior to the skidding and "lock up," was travelling was 50.6 miles per hour. In regard to this last figure, Oliver explained that this speed was based, in part, on the assumption that the victim's vehicle was travelling between 25 and 35 miles per hour; that if he had assumed that the victim had been driving faster, then the estimated speed of the appellant's vehicle would be greater; and, conversely, if he had assumed that she had been driving slower, then the estimated speed of the appellant's vehicle would have been slower. (There was no testimony as to the speed of the victim's vehicle; however, Oliver testified that there was no physical evidence to indicate that the victim had applied her brakes and that he did not talk to her.) However, he further stated that, in his opinion, the appellant's actual speed probably exceeded 50.6 miles per hour, but that the 50.6 miles per hour figure was the figure that could be scientifically proven. Oliver further stated that, on December 14, he interviewed the appellant, who told him that a blue truck had swerved in front of him; that when he applied his brakes, they locked and he "slid" across three lanes and hit the victim's vehicle; that he was driving about 40 miles per hour; and that the last time he had had anything to drink prior to the accident was on Saturday night. Oliver also explained that, based on the theory that another vehicle, slightly ahead of the appellant, had pulled into the appellant's lane, the skid marks "could indicate evasive action steering the vehicle would go in."

Opey Martin, an emergency medical technician who rendered aid at the scene, testified that the appellant was not very stable and could not stand by himself; that he initially would not stay on the stretcher; that he was "becoming somewhat combative"; that he was trying to fight the medical personnel; that he was using "very vulgar language" toward them and the police officers; and that he had a small laceration to his right temporal region. Martin further described the appellant as follows:

"Very belligerent, very vulgar. He smelled very strongly of alcohol. Very strongly. His speech was slurred. The tone of his voice was very loud. He couldn't focus on anything. I would ask him one question and he would babble off about something else. He would answer to questions that I specifically would ask him. ... As we went into the emergency room he acted or ... passed out, semi-conscious. ... Very limp. He closed his eyes. He wouldn't say anything. ... I performed ... a sternum rub on a patient. He responded to that sternum rub, he wiggled, which usually if a person responds, they are not unconscious. [After the appellant was taken to a room,] he became very combative again. [H]e laid down and calmed down after they threatened to tie him down to a stretcher...."

Martin also stated that he "thoroughly believe[d the appellant] was intoxicated" and that the appellant was intoxicated to the point that he could not safely operate a motor vehicle. However, he stated that when he asked the appellant if he had had anything to drink, the appellant responded, "I haven't had a damn thing to drink." On cross-examination, Martin explained that the appellant had no symptoms indicating that he was in shock.

Robert Philips, Jr., a fire department paramedic who rendered aid to the appellant at the scene, also testified that the appellant was very verbal, was using abusive language, and had a "very strong odor of alcohol." He also stated that the appellant refused several times to allow the paramedics to look at the small cut on his head and that, until he had a discussion with the police, he refused to go to the hospital. Finally, Philips concluded that the appellant was under the influence of alcohol, but he could not give an opinion on whether the appellant was under the influence to the extent that he could not safely operate a motor vehicle.

Lonnie Parsons, the victim's husband and a deputy sheriff, testified that, after he arrived at the scene, he approached the appellant, who responded with a lot of profanity and who smelled of alcohol. He also stated that he had to catch the appellant to keep him from falling when the appellant leaned toward Parsons while the appellant was seated in the back of a patrol car.

Officer Leslie Kohn testified that he was the first police officer on the scene; that the appellant was disorderly, so he put him in the patrol car; that, in his opinion, the appellant was "highly intoxicated"; that he smelled alcohol, which was not stale, five feet away from him; and that, upon inquiry, the appellant stated that he had had only two beers.

Officer J.R. Rawles testified that, in filling out an accident report, she had no problem in getting information from the appellant.

Carl Anthony Boutwell, an emergency room nurse, testified that, after the appellant was in the emergency room for approximately five minutes, he became agitated and combative, removed himself from a cervical collar and immobilization device, and left the hospital, despite the attempts of the hospital personnel to talk to him.

On the appellant's behalf, the appellant's roommate's girlfriend testified that, between 10:15 a.m. and 2:15 p.m. on the day of the accident, she was with the appellant and that he did not appear to be intoxicated. The appellant's stepmother also testified that, when she talked by telephone with the appellant at approximately 1:00 p.m. and when she saw...