West v. Com.

• Decision Date: 15 June 2004
• Docket Number: Record No. 1133-03-2.
• Citation: 597 S.E.2d 274,43 Va.App. 327
• Parties: James Darrell WEST v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

597 S.E.2d 274

43 Va.App. 327

James Darrell WEST v. COMMONWEALTH of Virginia.

Record No. 1133-03-2.

Court of Appeals of Virginia, Richmond.

June 15, 2004.

William H. Parcell, III (Parcell, Webb & Wallerstein, on briefs), Richmond, for appellant.

Robert H. Anderson, III, Senior Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.

Present: ELDER, FRANK and HUMPHREYS, JJ.

ROBERT P. FRANK, Judge.

James Darrell West (appellant) was convicted in a bench trial of one count of aggravated involuntary manslaughter, in violation of Code § 18.2-36.1, one count of involuntary manslaughter, in violation of Code § 18.2-36, and one count of driving under the influence, in violation of Code § 18.2-266. On appeal, he contends the trial court violated his Fifth Amendment right against double jeopardy by convicting him of both aggravated involuntary manslaughter and involuntary manslaughter. Appellant also contends the evidence was insufficient to convict him of the three charges. For the reasons stated, we affirm his convictions.

BACKGROUND

At about 9:00 p.m. on April 17, 2002, Tasharanda Gainey was driving her car westbound on Interstate 64 in Henrico County, near the interchange with Interstate 295. Gainey's cruise control was set at 70 miles per hour, and the posted speed limit was 65 miles per hour. An "older model" burgundy car that looked like "some kind of Firebird or Oldsmobile" passed her in the right-hand lane "like [her car] was standing still." Gainey exclaimed to her passengers that the car had to be "doing at least a hundred." At trial, Gainey estimated the car's speed was around 90 miles per hour. Gainey observed the taillights of the red car for ten to fifteen seconds before it disappeared from view. She never saw the car's brake lights activate.

About fifteen seconds after the red car disappeared, Gainey saw headlights in front of her. She saw a vehicle "twisting" and then "go[ing] up in the air and then in the median." She stopped her car on the right side of the interstate and got out. Gainey observed a tan pickup truck and went to investigate, but before she neared the truck, Trooper Eric Kingston arrived. Kingston had also observed "two headlights that appeared to tumble into the center median," so he had called his dispatcher at 9:19 p.m. and stopped to investigate. The driver of the tan pickup, Burlia Gene Jenkins, Jr., died of injuries sustained in the accident.

As the officer walked Gainey back to her car, she saw a burgundy bumper lying in front of her car. They then noticed a burgundy car underneath the overpass for Interstate 295. At trial, Gainey expressed "no doubt" that this car was the same one that had passed her moments earlier. A license plate, still attached to the bumper, matched the remaining license plate on the burgundy vehicle.

The burgundy car proved to be an Oldsmobile with "extensive damage to the front end" and a missing front bumper. The car apparently had run into a support pillar for the overpass. Appellant was the only person in the car, and he was injured. At trial, Kingston explained:

Mr. West was injured and entrapped [sic] in the vehicle, and I detected a strong odor of an alcoholic beverage about his person and began to try and speak to him, but he was very, very groggy, non-coherent, didn't seem to understand what I was saying to him.

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[I]mmediately as I approached the vehicle, I detected a very strong odor of alcohol. The alcoholic beverage odor was coming from his person and the vehicle, being that he was still [sic] in the vehicle, I couldn't separate the two odors at that time. It wasn't until fire and rescue had a significant amount of time working on him to free him from the wreckage that he was put onto a stretcher, and at that time, I was still detecting a strong odor of alcoholic beverage about his person.

People at the hospital who treated appellant also testified that he smelled of alcohol that evening.

Kingston estimated the rescue squad spent at least twenty minutes removing appellant from his vehicle. Before an ambulance took appellant to MCV Hospital in Richmond, Kingston looked to see if any alcoholic beverages were inside the Oldsmobile. Although he discovered nothing at that time, when he examined the car after it was impounded, Kingston found an empty, crushed, twelve-ounce beer can and an empty, broken, 22-ounce beer bottle. Virginia State Trooper Richard Weyant arrived at the scene at 10:18 p.m. Weyant determined, based on accident debris and markings on the road, that the point of impact was in the right lane of westbound Interstate 64. Most of the damage to appellant's car was to the left side, while the damage to the decedent's pickup truck was to its back end. Weyant observed "red paint scrapings all the way to the rear end" of the pickup truck. He concluded the Oldsmobile "forced the back end of the pickup truck up, actually bent the pickup as it more or less submarined up under the pickup truck and struck the rear-end housing." He indicated he found no skid marks from appellant's vehicle, although several "yaw marks, tire scuff marks, [and] curb tire marks" resulted from the pickup truck going sideways and flipping.

Paint samples from both vehicles were analyzed. David Toth of the Division of Forensic Science determined that the red paint on the pickup truck came from appellant's vehicle.

Trooper Weyant also examined the rear light assembly of the pickup truck. He found, "All lights, except the running lights [tail lights, side markers] worked. Turn signals and so forth all worked." Then, once Weyant replaced the running light fuse, which had blown, "the lights came on except the right side because I'd unplugged them."

Ann Davis, a forensic scientist, examined the rear lighting assembly of the pickup truck and found "impact shock" on the two lowest running lights, on both the right and left sides of the pickup. She explained how this effect occurs:

[W]hen a lamp is normal, the filament, the coils are evenly spaced and have a certain configuration based on the type of lamp that it is. This type of lamp that we're looking at is a lamp such as this; the normal configuration would look like that. When that filament is incandescent, it's a very, very high temperature. And when impact would hit that lamp or near that lamp, the filament, the metal itself is going to stretch and distort.

She concluded these lights were lit "at the time of impact shock," although she conceded that the accident creating the impact shock could have occurred prior to April 17th.

Several blood samples were drawn from appellant at various times that evening and the next day. A blood serum test concluded at 11:17 p.m. on April 17th found appellant had a blood alcohol level of 1190 milligrams per liter. Julia Pearson, a forensic toxicologist, testified that blood serum "runs 15 percent higher than a whole blood equivalent," and she calculated that this sample of appellant's blood reflected a whole blood alcohol level of .10. A second whole blood sample, taken on April 18th, indicated a .059 blood alcohol level. Pearson also testified that, based upon the blood samples and assuming "all the alcohol he drank that night had been fully absorbed from his stomach into his blood system," appellant's blood alcohol level would have been approximately . 115 at the time of the accident.

Pearson further described the effects of intoxication on an individual:

Alcohol is a central nervous system depressant. The way it acts is once it gets into your brain, it starts to affect various regions of your brain.

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In general, the behavior can also change in the sense they may start to do things they would not normally do if they were sober due to these changes in their brain. Once the alcohol concentration gets a little bit higher, around the .05, alcohol can start to effect your visual acuity, which means at night your ability of your pupils to respond to headlights and glare is reduced. It can also reduce your reaction time or your ability to respond to an adverse event.

Um, once the alcohol gets higher than a .05, we start to see symptoms of clinical intoxication, where their ability to speak may become a little bit slurred, their motor coordination may be a little bit off, they may have a balance problem.

Once the alcohol gets above a .10, typically, there's gross symptoms of intoxication where you can clearly see that someone's been drinking, and your average individual, they may not be able to walk a straight line, may be slurring, stumbling.

Appellant testified he drank a 22-ounce beer shortly before the accident. He also admitted to drinking a twelve-ounce beer at 2:00 p.m. and another at 6:00 p.m. He denied drinking any other alcohol that day. He recalled nothing about the accident.

After the Commonwealth rested, appellant moved to strike the aggravated manslaughter and DUI charges only, based on alleged irregularities in the withdrawal of blood and the toxicology reports. Appellant also argued the evidence was insufficient to show he was driving at an excessive speed.

At the conclusion of all the evidence, appellant made a motion to strike the evidence on all three offenses. He argued no evidence proved that appellant hit the victim's truck or that he was driving at an excessive speed. He again argued irregularities in the blood testing. Appellant never argued that convicting him of both manslaughter offenses constituted double jeopardy.

In responding to the motion to strike, the Commonwealth's attorney made the following reference to double jeopardy:

[T]here is the intoxication evidence, there is the evidence of the gross negligence, so I believe the evidence is sufficient for an aggravated manslaughter. Judge, the laws in Virginia, it is, it's not double jeopardy for aggravated manslaughter and a DUI. And, unfortunately, and I think it's, it's just the way that the law is written, it does not appear

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