Welcher v. State

• Decision Date: 27 January 1987
• Docket Number: 5 Div. 147
• Parties: James Darren WELCHER, alias v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 360

504 So.2d 360

James Darren WELCHER, alias v. STATE.

5 Div. 147.

Court of Criminal Appeals of Alabama.

Jan. 27, 1987.

Rehearing Denied Feb. 24, 1987.

Charles R. Gillenwaters, Alexander City, for appellant.

Charles A. Graddick, Atty. Gen., and P. David Bjurberg, Asst. Atty. Gen., for appellee.

TYSON, Judge.

James Darren Welcher, alias, was indicted for manslaughter in violation of § 13A-6-3, Code of Alabama 1975. The jury found the appellant "guilty of the offense of criminally negligent homicide." He was sentenced to 12 months in the county jail and ordered to pay a fine of $2,000 plus the costs of the proceedings. Later, during a separate restitution hearing, the appellant was ordered to pay $4,670.00 in restitution to the mother of the victim. Three thousand seven hundred and ten dollars ($3,710.00) of the total sum represented the funeral expenses incurred in connection with the death of the victim, Donald Eddie Flournoy.

The $960 balance of the total amount represented the lost wages incurred by Mrs. Flournoy in connection with her appearances in court.

Since the appellant does not raise the sufficiency of the evidence as an issue on this appeal, we will only briefly state the facts of this case.

The State presented evidence at trial which tended to show that the appellant was operating a Ford Mustang automobile in which Donald Eddie Flournoy was a passenger immediately before it was wrecked, killing Flournoy. The accident occurred on Tallapoosa Street in Alexander City, Alabama. The automobile, owned by the appellant's brother, skidded down a steep embankment on Tallapoosa Street for a distance of 110 feet and overturned approximately four times. Both Flournoy and the appellant, the sole occupants of the vehicle, were thrown from the vehicle.

Byron Rex Dennis, with the Alexander City Police Department, testified that he followed the appellant to the hospital and directed the doctor to draw a blood sample for alcohol analysis.

Ms. Martha Price, a nurse at the hospital, testified that she drew the blood for the alcohol test. The appellant was unconcious at the time that he was brought into the hospital and was unable to give his consent for the performance of the alcohol test. ¹

Uncontroverted evidence from several sources, including the appellant himself, established that he had been drinking alcohol prior to the accident.

I

The appellant contends that the trial court erred in failing to grant his motion to suppress the results of the blood alcohol test. He argues that the admission of the test results was erroneous because the appellant was not under arrest at the time the blood used for the test was drawn and the appellant did not verbally, or in writing, give his consent for the withdrawal of blood. We disagree.

We find that the admission of the blood results was not erroneous based on Love v. State [Ms. 6 Div. 995, September 9, 1986] (Ala.Crim.App), writ granted, (No. 86-128, December 18, 1986) (Ala.1986), recently decided by this court.

The facts in Love are very similar to those in the present case. In Love, two teenagers were killed in an automobile collision caused by that appellant. Love had been drinking prior to the accident and his blood alcohol level was shown to be .30%. There was no evidence that Love consented to the withdrawal of the blood sample used for the test. The blood was withdrawn while Love was in the hospital pursuant to the direction of a law enforcement officer. The law enforcement officer's probable cause for suspecting that Love was driving while intoxicated and his subsequent request for the taking of the blood sample were based on his personal observations of that appellant and the scene of the accident. The officer smelled the odor of alcohol around the appellant and viewed an open bottle of rum in Love's car at that time. Love was arrested 14 days after the accident had occurred and was charged with murder.

In Love we noted,

"The purpose of the arrest requirement in the implied consent act [to which the appellant, Welcher, refers in the present case] is to meet the requirements of due process for the revocation of the driver's license if the motorist refuses to submit to a chemical test. Schultz v. Macduff, 205 Misc. 43, 127 N.Y.S.2d 116, 125-28 (1954). The arrest requirement does not create a new rule for the admissibility of the evidence at trial....

" 'The administration of a blood alcohol test is a seizure of the person, and a search of his body for evidence,' State v. Curtis, 106 Idaho 483, 680 P.2d 1383, 1388 (1984); i.e., it is subject to Fourth Amendment requirements....

....

"Despite the arguments to the contrary, we find the requirement that an actual arrest must precede the seizure of blood from an injured motorist before blood is withdrawn is unreasonable where there is probable cause to believe the motorist was driving while intoxicated and exigent circumstances are present....

....

"... 'It is the existence of probable cause for the search, not the fact of arrest which is constitutionally significant.' " (emphasis added) (citations and quotations omitted).

Love, supra.

We find that the facts of the case at bar warrant a similar finding of probable cause. Officer Dennis testified that, before he requested that the blood be drawn from this appellant, he detected the odor of alcohol around the appellant.

In addition, we do not believe that the fact that Officer Dennis did not know for sure that the appellant was the driver of the car was fatal to the existence of probable cause. The admission of the blood alcohol test results was, therefore, not erroneous.

II

The appellant contends that the trial court erred in allowing the introduction of a photograph of the deceased which had not been produced prior to trial. He argues that the failure to produce the photograph was a violation of the trial court's order that the State produce "Any and all tangible objects, books, papers, photographs or documents obtained from any other person relating to the charges against the defendant" to the extent that they were exculpatory in nature to the defendant. (Clerk's R. 22, 64)

The disputed photograph was offered into evidence by the State immediately following the appellant's observation of it for the first time.

The appellant relies on Jones v. State, [Ms. 5 Div. 67, May 13, 1986] (Ala.Crim.App.1986) in support of his argument. In Jones, the photograph was a "mug shot" of the appellant used by undercover officers for identification purposes.

The appellant's reliance on Jones here is misplaced. The photo in this case was of the deceased victim in the case, not of the appellant. It was offered for the standard purpose of identifying the deceased in conjunction with the autopsy evidence. Certainly this photo could not be considered as "exculpatory in nature as to the Defendant" and, as such, the State's failure to produce it pursuant to the order did not constitute a violation of that provision. (Clerk's R. 64). We find no error here.

III

The appellant contends that the trial court erred in allowing the State Board of Health Regulations pertaining to the chemical test for intoxication to be admitted into evidence. He argues that the records were admitted without proper authentication, i.e., their admittance was not accompanied by the live testimony of a custodian of the records.

John R. Wible certified that the records were kept in his office, under his control and custody. His certification was sufficient authentication of the records. Bentley v. State, 450 So.2d 197 (Ala.Crim.App.1984). See also Moore v. State, 442 So.2d 164 (Ala.Crim.App.1983) (where court mentions necessity of introduction of "[a] copy of the board's rules and regulations" for proper foundation). No error was committed in admitting the records.

IV

The appellant contends that the judge's actions in instructing the jury to disregard a statement made by appellant's counsel during his closing argument were erroneous. We disagree.

The disputed portion of the appellant's closing statement is as follows, "The State asked y'all to cast the stone. Those among you who are within (sic) sin cast that stone." (R. 355) Although it is true that quotations from the Bible are generally allowed during closing arguments, see, e.g., Wright v. State, 279 Ala. 543, 188 So.2d 272 (1966), it is clear that the statement made here went beyond the "wide latitude" allowed counsel in closing arguments. See Sanders v. State, 426 So.2d 497 (Ala.Crim.App.1982). We find no abuse of discretion in the trial judge's actions here since the statement was clearly made in an attempt to have the members of the jury empathize with the defendant. Montgomery v. State, 446 So.2d 697 (Ala.Crim.App.1983). The trial judge was correct in instructing the jury to disregard counsel's statement.

V

The appellant contends that the trial court erred in failing to give his requested charge number eleven which states:

"I charge you that under the State's chemical test for intoxication act, the presumption that a person was intoxicated where test results show greater than .10 per cent weight of alcohol in that person's blood, is a rebuttable one, and the jury is not compelled to find that person was intoxicated, even though results show an alcohol level in excess of .10 per cent."

(Clerk's R. 95).

The appellant argues that the charge which was given by the judge concerning the presumption of intoxication was a misstatement of the law and confusing to the jury because it omitted an explanation of the rebuttable nature of the intoxication presumption.

The portion of the oral charge concerning which the appellant complains is as follows:

"The law sets certain standards. And ... if the weight of alcohol in a person's blood is more than point one zero per cent, then that person is presumed to be under the influence. And that presumption in and of itself once it's established that that's what it is--if that is established...