CRIPPS v. STATE

2016 OK CR 14, 387 P.3d 906, 2016 Okla. Crim. App. LEXIS 14, 2016 WL 3769476

• Court: Court of Criminal Appeals of Oklahoma
• Decided: June 30, 2016
• Docket: F-2015-209
• Status: Published

Opinions

SUMMARY OPINION

SMITH, PRESIDING JUDGE:

¶ 1 Brian Christopher Cripps was tried by jury and convicted of Manslaughter, Second Degree, Automobile, in violation of 21 O.S. 2011, § 716, in the Distinct Court of Tulsa County, Case No. CF-2012-4519.¹ In accordance with the jury’s recommendation the Honorable Jefferson D. Sellers sentenced Cripps to four (4) years imprisonment and a fine of $1000. Cripps appeals from this conviction and sentence. This court heard oral argument in this matter on June 7, 2016.

¶ 2 Cripps raises three propositions of error in support of his appeal:²

I. It was reversible error for the court to admit Officer Stephens’ opinion that the physical evidence proved Mr. Cripps was driving the vehicle.

II. Mr. Cripps is entitled to a new trial because the District Court should have quashed the blood alcohol content evidence.

III. Mr. Cripps cannot be retried for manslaughter—First Degree or Negligent Homicide as he was acquitted by the jury.

¶ 3 After thorough consideration of the entire record before us, including the original record, transcripts, exhibits and briefs, we find that the law and evidence do not require relief.

¶4 We find in Proposition I that the trial court did not abuse its discretion in admitting expert testimony from the State’s accident reconstruction witness, Stephens. Day v. State, 2013 OK CR 8, ¶ 4, 303 P.3d 291, 296. An abuse of discretion is any unreasonable or arbitrary action made without proper consideration of the relevant facts and law, also described as a clearly erroneous conclusion and judgment, clearly against the logic and effect of the facts. Neloms v. State, 2012 OK CR 7, ¶ 36, 274 P.3d 161, 170. Expert opinion is admissible when it (1) is based on sufficient facts or data; (2) is the product of reliable principles and methods; and (3) the witness has applied those principles and methods reliably to the facts of the case. 12 O.S.2011, § 2702.³ Stephens never testified that Cripps was driving the car at the time of the collision. He said that he would expect Cripps to be on the vehicle’s left side, he would expect the passenger to be on the right side, and that the decedent had been in the back seat. An expert may give an opinion on the ultimate issue, as long as he does not tell jurors what result to reach. 12 O.S.2011, § 2704; Day, 2013 OK CR 8, ¶ 11, 303 P.3d at 297. Stephens did not tell jurors what result to reach.

¶ 5 In making this claim Cripps mischaracterizes Stephens’ expert opinion evidence. Stephens based his conclusion about Cripps’ location on forensic and crime scene evidence. Stephens did not give opinions on physics, forensic pathology, and bio-mechanics. Stephens had specialized training in accident reconstruction and traffic investigation, including homicide accidents. His training included training in mathematics, crime scene evidence and determination of location from wreckage and injuries. This area of expertise requires neither medical nor engineering qualifications. We are unpersuaded by Cripps’ cited authority, which primarily consists of civil cases from other jurisdictions which do not address the issues in this case. Cripps also complains that Stephens’ opinions were based on speculation rather than evidence, and not reliable under 12 O.S.2011, § 2702. The record does not support these claims. This proposition is denied.

¶ 6 We find in Proposition II that the trial court did not err in admitting evidence of Cripps’ blood alcohol content. We review a tidal court’s decision on a motion to suppress for abuse of discretion; where the issue is one of illegal search and seizure we defer to the trial court’s findings of fact unless they are clearly erroneous, and review legal conclusions de novo. State v. Alba, 2015 OK CR 2, ¶ 4, 341 P.3d 91, 92. Officers drew Cripps’ blood under Oklahoma’s implied consent statutes. Any driver who could be cited for an accident resulting in a person’s immediate death shall submit to alcohol testing as soon as practicable after the accident; the fact of the accident serves as probable cause. 47 O.S.2011, § 10-104(B). Section 10-104(B) applies to all drivers involved in fatality accidents, whether or not they are cited for a traffic offense or arrested at the scene. Bemo v. State, 2013 OK CR 4, ¶ 5, 298 P.3d 1190, 1191; Sanders v. State, 2002 OK CR 42, ¶ 11, 60 P.3d 1048, 1050; Guest v. State, 2002 OK CR5, ¶ 8, 42 P.3d 289, 291.⁴

¶ 7 Cripps argues that § 10-104(B) is invalid under a recent United States Supreme Court case, Missouri v. McNeely, — U.S. -, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013). He is mistaken. Missouri had an implied consent statute that provided for a noncon-sensual blood draw whenever an officer reasonably believed an arrested person committed an offense while intoxicated or drugged. Mo Ann. Stat. §§ 577.020.1, 577.041 (West 2011). In McNeely, the Court determined that, where a driver is stopped and police suspect he is driving under the influence, the natural metabolism of alcohol in the bloodstream does not constitute an exigency that always justifies an exception to the Fourth Amendment warrant requirement for non-consensual blood testing. McNeely, 133 S.Ct. at 1556. The Court found that exigency must be determined case by case, based on the totality of the circumstances. Id. The Court’s focus was its rejection of the claim that dissipation of alcohol from the bloodstream is, standing alone, an exigent circumstance in every routine case of driving under the influence. Id. at 1561. For this reason the Court rejected Missouri’s per se rule.

¶ 8 There is a significant difference between § 10-104(B) and the section of the Missouri statute at issue in McNeely. Oklahoma law creates a per se rule requiring nonconsensual blood testing of a driver involved in an accident who could be cited for a traffic offense, where the accident involves either a fatality or great bodily injury of any person, including the driver. 47 O.S.2011, § 10-104(B). Of all the Oklahoma statutes concerning blood tests for traffic offenses, whether consensual, nonconsensual, or with implied consent, § 10-104(B) is the only statute which applies in these very narrow circumstances. The exigent circumstance justifying the per se rule in § 10-104(B) is the existence of great bodily injury or a fatality to persons including the driver. Put another way, § 10-104(B) does not depend solely on the dissipation of alcohol in the bloodstream over time as an exigent circumstance. Missouri’s implied consent statute. contains a similar (though not identical) provision; however, there was neither an accident nor a fatality in McNeely and that provision was not used. The majority in McNeely rejected the claim that states needed a per se rule based on the dissipation of alcohol in the blood in order to promote enforcement of laws against drunk driving. The per se rule found unconstitutional in McNeely is simply a different rule from the per se rule in § 10-104(B), and the difference is material.

¶ 9 Cripps claims he should have had the right to revoke his implied consent when he regained consciousness. He relies on cases in which this Court held that, since an implied consent statute allowed a conscious person to refuse consent, an unconscious person must be afforded that same opportunity. Sartin v. State, 1980 OK CR 65, 617 P.2d 219; State v. Wood, 1978 OK CR 25, 576 P.2d 1181. However, neither of those eases refer to § 10-104(B), which does not contain a provision allowing a defendant, conscious or unconscious, to refuse consent. 47 O.S.2011, § 10-104(B) (drivers subject to the statutory provision “shall” submit to drug and alcohol testing). Under that statute, Cripps had no right to revoke his implied consent. Cripps’ blood was legally taken under § 10-104(B). No warrant was necessary, and it is unnecessary for us to address Cripps’ arguments involving warrantless seizure and the exclusionary rule. The trial court did not abuse its discretion in denying Cripps’ motion to suppress, and this proposition is denied.⁵

¶ 10 We find in Proposition III that, because we found no error in the preceding propositions, there is no question of a retrial. This proposition is moot.

DECISION

¶ 11 The Judgment and Sentence of the District Court of Tulsa County is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2016), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

LUMPKIN, V.P.J.: CONCUR IN RESULT JOHNSON, J.: CONCUR LEWIS, J.: CONCUR HUDSON, J.: CONCUR IN PART/DISSENT IN PART

1 . Cripps was acquitted of the charged crime, manslaughter in the first degree by automobile.

2 . For purposes of this appeal this Court treats the separate issues raised in Cripps’ brief as separate propositions of error, inartfully but correctly raised under our Rules. Rule 3.5(A)(5), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2016).

3 . Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999), govern admissibility of scientific and other technical or specialized evidence. Day, 2013 OK CR 8, ¶ 4, 303 P.3d at 295. In Oklahoma criminal cases, Daubert inquiry is explicitly limited to novel scientific evidence; if the testimony is not novel, the trial court need not hold a Daubert hearing. Day, id. at ¶ 5, 303 P.3d at 295. A thorough review of the record shows that Stephens’ testimony was not novel, and although he received a Daubert hearing, none was necessary.

4 . At the hearing on Cripps' motion to suppress, neither party argued § 10-104(B). Instead, they argued whether exigent circumstances justified the nonconsensual blood draw. The trial court found there were exigent circumstances based on the officer’s testimony that Cripps was so critically injured he believed that, without an immediate blood draw, Cripps would either die or be taken to surgery and become unavailable. The record shows this decision was not an abuse of discretion.

5 . On June 23, 2016, the United States Supreme Court decided Birchfield v. North Dakota, — U.S. -, 136 S.Ct. 2160, 195 L.Ed.2d 560 (2016). While Birchfield discusses blood draws, it does not change our conclusion that 47 O.S. 2011, § 10-104 (B) is constitutional as applied in this case.