State of Louisiana v. Chad M. Vidrine
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Opinion
STATE OF LOUISIANA * NO. 2019-KA-0906
VERSUS * COURT OF APPEAL CHAD M. VIDRINE * FOURTH CIRCUIT * STATE OF LOUISIANA *******
APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 529-048, SECTION “B” Honorable Tracey Flemings-Davillier, Judge ****** Judge Terri F. Love ****** (Court composed of Chief Judge James F. McKay III, Judge Terri F. Love, Judge Regina Bartholomew-Woods) Leon Cannizzaro District Attorney Donna Andrieu Assistant District Attorney Chief of Appeals Irena Zajickova Assistant District Attorney ORLEANS PARISH 619 S. White Street New Orleans, LA 70119 COUNSEL FOR APPELLEE, STATE OF LOUISIANA Michael Paul Ciaccio 320 Huey P. Long Ave. P. O. Box 464 Gretna, LA 70054 AND Frank Gerald DeSalvo Shannon Regeci Bourgeois FRANK G. DESALVO, APLC 739 Baronne Street New Orleans, LA 70113 COUNSEL FOR DEFENDANT/APPELLANT, CHAD VIDRINE CONVICTION AND SENTENCE AFFIRMED; REMANDED APRIL 15, 2020 TFL JFM RBW This appeal arises from the conviction and sentence of defendant for one
count of vehicular homicide.
On appeal, defendant contends that there was insufficient evidence to
support two elements required for vehicular homicide: 1) that he was legally
impaired and 2) that his impairment caused the victim’s death. Our review of the
trial testimony and evidence revealed sufficient evidence to support defendant’s
conviction and sentence for vehicular homicide. As such, his conviction and
sentence are affirmed. However, we noted an error patent, as the trial court failed
to impose a mandatory fine. Accordingly, the matter is remanded for the trial court
to impose the mandatory fine.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On February 4, 2016, Joseph Sunseri was killed in an automobile collision
when a truck, driven by Chad Vidrine, struck the truck in which Mr. Sunseri was a
passenger. Mr. Sunseri was ejected from the truck. Mr. Vidrine’s blood alcohol
concentration was .121. The State filed a bill of information charging Mr. Vidrine
with vehicular homicide. Mr. Vidrine appeared for arraignment and entered a plea
of not guilty. Following a three-day jury trial, Mr. Vidrine was found guilty of one
count of vehicular homicide. Mr. Vidrine filed a motion for post-judgment verdict
of acquittal or, in the alternative, a new trial, which the trial court denied.
1 The trial court imposed “a sentence of fifteen years, with credit for time
served, pursuant to Louisiana Revised Statute 14:32.1, all but three years of that
sentence are suspended, without the benefit of probation, parole, or suspension of
sentence.” The trial court further specified that following Mr. Vidrine’s release, he
would be placed on active probation for a period of three years. He would also be
required to install an ignition interlock device on his vehicle. Thereafter, Mr.
Vidrine filed a motion for appeal, which the trial court granted.
TESTIMONY
Mary Ann Back, Mr. Sunseri’s mother, testified that the victim was her only
son. She described her son as “just a great all around guy.”
New Orleans Police Officer Daniel Oquendo testified that he was assigned
to the Eighth District, which encompasses the French Quarter and the Central
Business District. Specifically, he was assigned to the Eighth District C Platoon,
which he explained is the “night watch.” He stated that on the evening of February
4, 2016, five days before Mardi Gras, he, along with his partner, William Knowles,
were driving on Calliope Street. They were stopped at a red light at the
intersection of Calliope and Annunciation Streets. Officer Oquendo stated that the
light turned green and approximately five seconds later, he heard a loud bang and
saw a vehicle “flipping through the air.” They immediately proceeded to the
accident scene and viewed Mr. Sunseri lying on the ground.
Following the above testimony, Officer Oquendo's body-camera footage was
played for jurors, which depicted Mr. Sunseri lying in the street with his head
bleeding profusely. The footage also showed an overturned truck. Officer
Oquendo proceeded to the truck, assisted the driver out of the truck, and advised 2 him to “stay still.” Officer Oquendo then proceeded to check on the occupant of
the other vehicle involved in the accident; inquiring as to whether he was injured.
He confirmed that the other driver had suffered no injury and returned to the area
where the truck was overturned. At that point, a nurse was attempting to assist Mr.
Sunseri, advising that he had a faint pulse. Officer Oquendo then collected
information from both drivers and secured the scene.
Detective William Knowles testified that on February 4, 2016, he was
partnered with Officer Oquendo on the “night watch,” which encompassed a
twelve-hour shift from 7:00 p.m. to 7:00 a.m. He stated that they were traveling
down Calliope Street, approaching the intersection with Annunciation Street, en
route to gas pumps to fuel up for the night. He testified that he heard a loud bang,
but did not actually witness the crash. Detective Knowles and his partner
immediately went to the crash site, where he began the process of obtaining the
necessary resources “to control the scene.” He explained that it was his duty to
secure the scene. He and his partner were not tasked with the responsibility of
investigating the accident, as that duty “was passed on to the New Orleans Police
Department Fatality Unit.”
On cross-examination, the dashboard camera from Detective Knowles’
vehicle was played for jurors. When questioned regarding what the video
reflected, Detective Knowles testified that he saw “a red stop light controlling the
intersection [of Calliope Street and Annunciation Street].” On redirect
examination, Detective Knowles confirmed that the video also showed a white line
marking the stopping point for the entire intersection. Detective Knowles further
3 stated that on the night in question, there were no other major accidents at the
intersection.
Landon Mark Keathley testified that on February 4, 2016, he was employed
by “New Orleans EMS as a first responder.” On that date, he responded in an
ambulance to the scene of an accident at the intersection of Calliope and
Annunciation Streets. When he arrived, other medics were performing CPR on
Mr. Sunseri, but from EMS Keathley’s perspective, “it was time to terminate
resuscitation.” EMS Keathley contacted a physician so he could relay Mr.
Sunseri’s condition and have the physician declare a time of death. However,
before the doctor made the pronouncement, EMS Keathley was instructed to take
Mr. Sunseri to the hospital.
Officer Ralph Palmer testified that he was employed by the Louisiana
Department of Public Safety. On February 4, 2016, Officer Palmer was “[w]orking
traffic control at Annunciation and Calliope.” He stated that he was “[m]anually
controlling the traffic light.” However, he explained that he could not control how
long the light stayed red, green, or yellow. The length of time the light remained
red, green, or yellow was controlled by a computer. He pushed a button only to
control the cycle of the traffic light. This was done in an effort to ensure that
traffic moved smoothly through the intersection.
Officer Palmer stated that he was stationed behind the traffic box located at
the intersection and witnessed the accident. Officer Palmer saw a white truck enter
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STATE OF LOUISIANA * NO. 2019-KA-0906
VERSUS * COURT OF APPEAL CHAD M. VIDRINE * FOURTH CIRCUIT * STATE OF LOUISIANA *******
APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 529-048, SECTION “B” Honorable Tracey Flemings-Davillier, Judge ****** Judge Terri F. Love ****** (Court composed of Chief Judge James F. McKay III, Judge Terri F. Love, Judge Regina Bartholomew-Woods) Leon Cannizzaro District Attorney Donna Andrieu Assistant District Attorney Chief of Appeals Irena Zajickova Assistant District Attorney ORLEANS PARISH 619 S. White Street New Orleans, LA 70119 COUNSEL FOR APPELLEE, STATE OF LOUISIANA Michael Paul Ciaccio 320 Huey P. Long Ave. P. O. Box 464 Gretna, LA 70054 AND Frank Gerald DeSalvo Shannon Regeci Bourgeois FRANK G. DESALVO, APLC 739 Baronne Street New Orleans, LA 70113 COUNSEL FOR DEFENDANT/APPELLANT, CHAD VIDRINE CONVICTION AND SENTENCE AFFIRMED; REMANDED APRIL 15, 2020 TFL JFM RBW This appeal arises from the conviction and sentence of defendant for one
count of vehicular homicide.
On appeal, defendant contends that there was insufficient evidence to
support two elements required for vehicular homicide: 1) that he was legally
impaired and 2) that his impairment caused the victim’s death. Our review of the
trial testimony and evidence revealed sufficient evidence to support defendant’s
conviction and sentence for vehicular homicide. As such, his conviction and
sentence are affirmed. However, we noted an error patent, as the trial court failed
to impose a mandatory fine. Accordingly, the matter is remanded for the trial court
to impose the mandatory fine.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On February 4, 2016, Joseph Sunseri was killed in an automobile collision
when a truck, driven by Chad Vidrine, struck the truck in which Mr. Sunseri was a
passenger. Mr. Sunseri was ejected from the truck. Mr. Vidrine’s blood alcohol
concentration was .121. The State filed a bill of information charging Mr. Vidrine
with vehicular homicide. Mr. Vidrine appeared for arraignment and entered a plea
of not guilty. Following a three-day jury trial, Mr. Vidrine was found guilty of one
count of vehicular homicide. Mr. Vidrine filed a motion for post-judgment verdict
of acquittal or, in the alternative, a new trial, which the trial court denied.
1 The trial court imposed “a sentence of fifteen years, with credit for time
served, pursuant to Louisiana Revised Statute 14:32.1, all but three years of that
sentence are suspended, without the benefit of probation, parole, or suspension of
sentence.” The trial court further specified that following Mr. Vidrine’s release, he
would be placed on active probation for a period of three years. He would also be
required to install an ignition interlock device on his vehicle. Thereafter, Mr.
Vidrine filed a motion for appeal, which the trial court granted.
TESTIMONY
Mary Ann Back, Mr. Sunseri’s mother, testified that the victim was her only
son. She described her son as “just a great all around guy.”
New Orleans Police Officer Daniel Oquendo testified that he was assigned
to the Eighth District, which encompasses the French Quarter and the Central
Business District. Specifically, he was assigned to the Eighth District C Platoon,
which he explained is the “night watch.” He stated that on the evening of February
4, 2016, five days before Mardi Gras, he, along with his partner, William Knowles,
were driving on Calliope Street. They were stopped at a red light at the
intersection of Calliope and Annunciation Streets. Officer Oquendo stated that the
light turned green and approximately five seconds later, he heard a loud bang and
saw a vehicle “flipping through the air.” They immediately proceeded to the
accident scene and viewed Mr. Sunseri lying on the ground.
Following the above testimony, Officer Oquendo's body-camera footage was
played for jurors, which depicted Mr. Sunseri lying in the street with his head
bleeding profusely. The footage also showed an overturned truck. Officer
Oquendo proceeded to the truck, assisted the driver out of the truck, and advised 2 him to “stay still.” Officer Oquendo then proceeded to check on the occupant of
the other vehicle involved in the accident; inquiring as to whether he was injured.
He confirmed that the other driver had suffered no injury and returned to the area
where the truck was overturned. At that point, a nurse was attempting to assist Mr.
Sunseri, advising that he had a faint pulse. Officer Oquendo then collected
information from both drivers and secured the scene.
Detective William Knowles testified that on February 4, 2016, he was
partnered with Officer Oquendo on the “night watch,” which encompassed a
twelve-hour shift from 7:00 p.m. to 7:00 a.m. He stated that they were traveling
down Calliope Street, approaching the intersection with Annunciation Street, en
route to gas pumps to fuel up for the night. He testified that he heard a loud bang,
but did not actually witness the crash. Detective Knowles and his partner
immediately went to the crash site, where he began the process of obtaining the
necessary resources “to control the scene.” He explained that it was his duty to
secure the scene. He and his partner were not tasked with the responsibility of
investigating the accident, as that duty “was passed on to the New Orleans Police
Department Fatality Unit.”
On cross-examination, the dashboard camera from Detective Knowles’
vehicle was played for jurors. When questioned regarding what the video
reflected, Detective Knowles testified that he saw “a red stop light controlling the
intersection [of Calliope Street and Annunciation Street].” On redirect
examination, Detective Knowles confirmed that the video also showed a white line
marking the stopping point for the entire intersection. Detective Knowles further
3 stated that on the night in question, there were no other major accidents at the
intersection.
Landon Mark Keathley testified that on February 4, 2016, he was employed
by “New Orleans EMS as a first responder.” On that date, he responded in an
ambulance to the scene of an accident at the intersection of Calliope and
Annunciation Streets. When he arrived, other medics were performing CPR on
Mr. Sunseri, but from EMS Keathley’s perspective, “it was time to terminate
resuscitation.” EMS Keathley contacted a physician so he could relay Mr.
Sunseri’s condition and have the physician declare a time of death. However,
before the doctor made the pronouncement, EMS Keathley was instructed to take
Mr. Sunseri to the hospital.
Officer Ralph Palmer testified that he was employed by the Louisiana
Department of Public Safety. On February 4, 2016, Officer Palmer was “[w]orking
traffic control at Annunciation and Calliope.” He stated that he was “[m]anually
controlling the traffic light.” However, he explained that he could not control how
long the light stayed red, green, or yellow. The length of time the light remained
red, green, or yellow was controlled by a computer. He pushed a button only to
control the cycle of the traffic light. This was done in an effort to ensure that
traffic moved smoothly through the intersection.
Officer Palmer stated that he was stationed behind the traffic box located at
the intersection and witnessed the accident. Officer Palmer saw a white truck enter
the intersection and strike a dark-colored truck and flip it over on its side. He
stated that at the time of the accident, “Calliope had the red light and the green light
was for Annunciation.” Thus, the dark-colored truck traveling on Annunciation 4 Street had the green light and the white truck traveling on Calliope Street had the
red light. Officer Palmer testified that after the “crash was cleared out,” no one
else had an accident at the intersection.
Donovan Perrin testified that on February 4, 2016, he was an Uber driver
and he witnessed the accident. Mr. Perrin stated that his car was second in line,
waiting to proceed down Annunciation Street when the light turned green. A truck
was in front of his car. The light turned green, the truck moved forward,
proceeded into the intersection, and “got hit, t-boned on the side and flipped over
on the side.” Mr. Perrin stated that there was no doubt in his mind that the light
was green when the truck moved forward and was struck.
David Sintes testified that he was employed by the Louisiana Department of
Transportation and Development and that, on February 4, 2016, he was at the
intersection of Calliope and Annunciation Streets. Mr. Sintes stated that he “was
sitting in the parking lot on Annunciation under the bridge and [he] saw a truck run
an intersection and hit another vehicle.” Specifically, Mr. Sintes testified that the
“truck that was traveling on Calliope ran a red light and struck the truck that was
on Annunciation.” Mr. Sintes did not witness any other vehicle go through the red
light on Calliope Street that night and there were no other accidents at the
Dr. Cynthia Gardner, a forensic pathologist employed by the Orleans Parish
Coroner’s Office, was qualified, without objection, as an expert in the field of
forensic pathology. Dr. Gardner testified that she performed an autopsy on Mr.
Sunseri and determined that the cause of death was blunt force trauma.
5 Detective Dennis Recasner testified that he was assigned to the Traffic
Fatality Unit of the New Orleans Police Department. Detective Recasner
explained that his job was to check the braking systems on vehicles to ascertain
whether a mechanical failure played a role in a fatal accident. Detective Recasner
confirmed that he tested the brakes on Mr. Vidrine’s truck and found that the
“brake system was working fine.”
Kerry Johnson testified that he was employed by “Louisiana State Police
Applied Technology,” which provides the training for officers tasked with DWI
testing. He stated that his employer also maintains DWI equipment. Officer
Johnson was questioned with regard to the maintenance of the specific Intoxilyzer
5000, which was used to test Mr. Vidrine. He stated that, by law, maintenance
testing on the Intoxilyzer 5000 was performed every four months. Officer Johnson
reviewed two certificates of inspection for the pertinent machine: one reflecting
that the Intoxilyzer 5000 had been tested on November 11, 2015, and the second
reflecting that the Intoxilyzer 5000 was once again tested on February 17, 2016.
Officer Johnson explained: “Louisiana law says that any breath testing instrument
that’s operated within the State of Louisiana has to be within a reference, and that’s
plus or minus .010.” That means that, using .100 as a reference point, an
instrument that registers anywhere from .110 to .090 would be considered accurate.
However, the manufacturer of the Intoxilyzer 5000 claimed that its machines were
more accurate and operated within a range of plus or minus .005, which, using .100
as a reference point, would yield an acceptable reading anywhere from .095 to
.105.
6 As evidenced by the certificates of inspection, the Intoxilyzer 5000 used to
test Mr. Vidrine satisfied the above-described standards. The November 2015
testing reflected a readout of .098, placing it at a mark, .002, in Mr. Vidrine’s
favor. The February 2016 testing reflected no discrepancy between the known
value of .100 and the instrument read, which was likewise .100. Thus, in
accordance with Louisiana law, the instrument used to test Mr. Vidrine’s blood
alcohol content was functional.
Officer John Walker testified that from April 2012, until July 2016, he was
assigned to the New Orleans Police Department DWI Traffic Division. On
February 4, 2016, Officer Walker assisted traffic fatality investigators with the
investigation of an accident at the intersection of Calliope and Annunciation
Streets. Officer Walker explained that he assisted by ascertaining whether Mr.
Vidrine was impaired at the time of the accident. Officer Walker transported Mr.
Vidrine from the accident scene to the DWI testing facility.
Officer Walker stated that at the facility, he performed the “Standardized
Field Sobriety Test” on Mr. Vidrine, which consisted of “the Horizontal Gaze
Nystagmus Test, the Walk-and-Turn Test, and the One Leg Stand Test.” The
Horizontal Gaze Nystagmus Test requires the suspect to follow a visual stimulus
without moving his head. Officer Walker explained that during this test, he was
looking for involuntary jerking of the eye (referred to as “lack of smooth pursuit”),
which would indicate impairment. Officer Walker stated that Mr. Vidrine lacked a
“smooth pursuit in both eyes, and distinct and sustained nystagmus at max
deviation in both eyes.” Officer Walker explained that such a result indicated that
Mr. Vidrine had a blood alcohol content above .08.
7 With regard to the Walk-and-Turn Test, Officer Walker stated that Mr.
Vidrine deviated from the instructions in four areas of the test. Officer Walker
explained that two or more errors on the test “is an indicator of someone being
under a .08 or higher.” Mr. Vidrine was unsuccessful in performing the One Leg
Stand Test. Officer Walker testified that Mr. Vidrine failed the test because “[h]e
swayed while he was balancing, used his arms to balance, and put his foot down
twice.” Two or more errors on the test is an “indicator of impairment of a .08 or
more.”
Following Officer Walker’s explanation as to the field sobriety testing, his
body-camera footage was published for the jury. This footage depicted Mr.
Vidrine undergoing the three tests described above.
Officer Walker stated that, during his interaction with Mr. Vidrine, he could
smell the faint odor of an unknown alcoholic beverage emanating from his breath.
Officer Walker stated that, in his opinion, Mr. Vidrine was impaired.
After administering the field sobriety testing, Officer Walker explained the
chemical testing procedures to Mr. Vidrine. Officer Walker stated that because
Mr. Vidrine was involved in a traffic fatality, the law did not permit him to refuse
to submit to the chemical test. Officer Walker then explained that the Intoxilyzer
5000 itself performs diagnostic testing to ensure that it is functioning properly
before testing is undertaken. Thereafter, Officer Walker administered the
intoxilyzer test, which registered Mr. Vidrine’s blood alcohol concentration at
.121. The legal limit in Louisiana is .08.
On cross-examination, Officer Walker was questioned as to whether he
would agree that his body-camera video showed no indications of nystagmus.
8 Officer Walker agreed, explaining that one “can’t see it from the camera.” Officer
Walker stated he was only able to see nystagmus on a body-camera video on one
prior occasion.
Officer Walker was also questioned as to whether Mr. Vidrine’s club foot
would adversely affect his ability to perform the Walk-and-Turn Test. Officer
Walker stated that because he was not a doctor, he did not know whether such a
physical deformity would adversely affect the ability to successfully complete the
test. With respect to the One Leg Stand Test, Officer Walker testified that Mr.
Vidrine balanced himself on his right foot, which was not the foot about which he
complained. Therefore, Officer Walker opined that Mr. Vidrine’s inability to
successfully perform that test could not be attributed to his club foot. Officer
Walker also confirmed, on cross-examination, that he could smell the faint odor of
alcohol on Mr. Vidrine’s breath, that he observed him slur his speech, and that he
swayed.
Sergeant Richard Blackman testified that he had been employed by the New
Orleans Police Department since 1999, and had been assigned to the Special
Events Unit since 2016. Sergeant Blackman explained that he specialized in
collecting “CDR” which stands for Crash Data Retrieval. A Crash Data Retrieval
system allows technicians to download data from vehicles involved in accidents.
A CDR is a monitor that is attached to the airbags in vehicles that determines
whether the airbags will be deployed.
Sergeant Blackman stated that he collected the CDR from Mr. Vidrine’s
vehicle. Thereafter, Sergeant Blackman “processed” the CDR box by “attach[ing]
cables to it to a laptop device,” then entering information into the device such as
9 the VIN number of the vehicle and the date of the crash. Once these acts are
performed, the next step is to retrieve data from the device. At that point, Sergeant
Blackman provided the device to a CDR technician to analyze the collected data.
Sergeant Bernard Crowden testified that he was assigned to the New Orleans
Police Department Traffic Division, the Fatality Section. He stated that on
February 4, 2016, he, along with other team members, was called upon to
investigate the crash, which took place at the intersection of Calliope and
Annunciation Streets. Sergeant Crowden explained that he was certified to review
the CDR File Information collected with respect to Mr. Vidrine’s truck. The CDR
data, set forth on page fifteen of the report, reflected that Mr. Vidrine did not apply
pressure to his brakes until he was one second away from the crash. Sergeant
Crowden stated that this CDR data was corroborated by the evidence he reviewed
from the scene of the accident. Sergeant Crowden did not see any skid marks
extending from before the red light.
On cross-examination, Sergeant Crowden stated that he did not notice how
many traffic lights were at the intersection. He did state, however, that if one of
the traffic lights was removed for Mardi Gras, there were still operational traffic
lights, such that no other major accidents took place at the intersection during the
Mardi Gras season. A photograph of the intersection showing that only two traffic
lights, rather than the usual three, were in service on the night of the accident was
introduced.
On redirect examination, Sergeant Crowden verified, based on the CDR
data, that Mr. Vidrine was traveling at forty-two miles per hour at two seconds
10 before the crash even though the speed limit on Calliope Street was estimated to be
thirty-five miles per hour.1
Cody Friedman, the driver of the vehicle struck by Mr. Vidrine’s truck,
testified that he was a friend of Mr. Sunseri for over twenty years. Mr. Friedman
admitted that in the past, he had received two DWIs, but on February 4, 2016, there
were no restrictions placed on his ability to drive. Mr. Friedman further stated that
when the accident happened, he had not been drinking. He was taken to the
hospital and there was no evidence of intoxication.
Mr. Friedman stated that his vehicle was the first one on Annunciation
Street, waiting for the red traffic light to turn green. He stated that his truck
“cruise[d] through” the intersection, as he did not significantly press down on the
accelerator. Mr. Friedman did not recall if his friend, Mr. Sunseri, was wearing a
seatbelt.
On cross-examination, Mr. Friedman stated that he did not know how the
passenger seatbelt of his truck became buckled underneath Mr. Sunseri. He
testified that he does not ride in his truck with the passenger seatbelt buckled. He
speculated that someone who washed his truck may have buckled it.
Sergeant Kevin Thompson testified that on February 4, 2016, he was with
the Traffic Fatality Unit of the New Orleans Police Department and was assigned
to be the lead investigator of the fatal accident. Based on his investigation of the
scene, including the condition of the two trucks involved in the accident, Sergeant
Thompson concluded that it was a “t-bone collision” with the white Chevrolet
Silverado hitting the dark-colored Ford F-150 with such force as to cause the F-150
1 It was unclear what the posted speed limit was for Calliope Street; therefore, the prosecutor asked the witness to assume the speed limit was thirty-five miles per hour.
11 to flip over, ultimately landing on its passenger side.
After examining the vehicles and acquiring witness statements, Sergeant
Thompson ascertained that when the crash occurred, the light was green for the F-
150 traveling on Annunciation Street and red for the Silverado traveling on
Calliope Street. Sergeant Thompson also obtained, from nearby businesses, video
surveillance footage. The footage was dark, but based on the headlights, Sergeant
Thompson stated that the traffic lights were functioning properly, as cars were
stopping on red. Sergeant Thompson testified that in the light cycles before the
crash, he did not observe any motorists run the red light.
Sergeant Thompson, based on the CDR data, calculated that in the five
seconds before the crash, Mr. Vidrine’s average speed was 38.8 miles per hour.
Sergeant Thompson further calculated that Mr. Vidrine “traveled a distance of 285
feet within those five seconds prior to impact.” So, Mr. Vidrine was 285 feet away
when the light turned red on Calliope Street.
Sergeant Thompson was asked whether there were skid marks demonstrating
that Mr. Vidrine attempted to stop. Sergeant Thompson responded in the negative,
“no skid marks indicating that there was an abrupt attempt to stop or anything like
that. Everything was straight through.”
On cross-examination, Sergeant Thompson confirmed that all the lights at
the intersection of Calliope and Annunciation Streets were functioning properly.
He also confirmed that a light was taken down for Mardi Gras. However, he stated
that when a light is taken down, officials ensure that “a feasible amount of lights”
remain.
12 Defense counsel asked Sergeant Thompson how close a driver in the left
lane would need to be to see the traffic light. He stated that this would vary based
upon the individual driver. Moreover, the intersection had multiple traffic signals.
Sergeant Thompson stated that Mr. Vidrine would have had five seconds of red
light, as well as multiple seconds while the light was yellow, to react. He
reiterated that there was no way to determine exactly how close to the intersection
a driver would have to be to see the left-most red light because it would depend on
a variety of factors. However, Sergeant Thompson testified that the light would be
visible before a vehicle crossed the intersection.
Sergeant Thompson stated that a blood test was not performed on Mr.
Friedman because he was not responsible for the crash. Sergeant Thompson did
not issue a ticket to Mr. Friedman based on the fact that Mr. Sunseri was not
wearing his seatbelt at the time of the crash.
Following Sergeant Thompson’s testimony, the State played for jurors the
body-camera footage worn by Officer Hutchinson, the officer who transported Mr.
Vidrine from the DWI Substation to Central Lockup. The State played sixteen
seconds of the footage, which showed Mr. Vidrine being transported to Central
Lockup following the results of his DWI testing. Thereafter, the State rested.
Claire Hargis, Mr. Vidrine’s aunt and a physical therapist, testified that
when Mr. Vidrine was born, the doctor’s diagnosed him as having “club feet.” She
stated that both of Mr. Vidrine’s feet were afflicted. Immediately after birth,
treatment commenced to correct the deformity which led to “surgical
reconstruction.” Ms. Hargis testified that a “total reconstruction” was performed
on the left foot, and “a partial on the right.” She stated that as an adult, Mr. Vidrine
13 suffered from arthritic pain, which affects his “balance.” She believed that both of
Mr. Vidrine’s feet were adversely affected but that his left foot was worse than his
right foot.
When Ms. Hargis learned of the accident, she was distressed and shared with
a neighbor what occurred. Ms. Hargis then learned from her neighbor that there
was a traffic light missing at the intersection of Calliope and Annunciation Streets.
William Schoen testified that he and Ms. Hargis were neighbors. Upon
learning that her nephew had been in an accident and where the accident occurred,
Mr. Schoen informed her that there was a light missing at the pertinent
intersection. Mr. Schoen explained that he is very familiar with the intersection, as
he drives through it going back and forth to work. He stated that a driver on
Calliope Street could not see traffic traveling from the uptown side of
Annunciation Street, explaining that it was “a blind corner.”
On cross-examination, Mr. Schoen admitted that one can see there is an
intersection at Calliope and Annunciation Streets. Further, one can detect there is
an intersection even if you cannot see the cars on Annunciation Street because
there are traffic lights.
Mr. Vidrine testified that he lived with his family in Geismar, Louisiana, and
his insurance office was located in Metairie, so he did not travel to downtown New
Orleans very often. On February 4, 2016, he had a 5:00 p.m. appointment to meet
a colleague at Ruth’s Chris Steakhouse in downtown New Orleans. Once he
arrived, the colleague cancelled the appointment. Because his next appointment
was scheduled for 8:30 p.m. in Lakeview, he “decided to stay at the casino to kill a
little time.” Mr. Vidrine proceeded to play blackjack and drank two alcoholic
14 drinks while doing so. By the time the waitress brought him a third drink, he had
“doubled [his] money,” so he left the table without finishing his third alcoholic
beverage. Thereafter, he dined at the buffet.
After eating, Mr. Vidrine “went to get [his] truck.” Mr. Vidrine testified that
when he got in his truck, though he had consumed approximately two and a half
alcoholic beverages, he did not feel drunk or even “buzzed.” He did not feel as
though his ability to drive had been compromised. He attempted to travel down
Canal Street, but it was barricaded. At that point, he used his “OnStar” computer
program to provide him with a route to reach his appointment in the Lakeview
area. Eventually, he was directed to Calliope Street. At that point, Mr. Vidrine
explained what happened up until the crash:
I came down Calliope. I stopped at a red light [at Tchoupitoulas Street.] That light turned green. I proceeded forward. I saw the entrance to get on to the interstate, and split seconds before I was approaching the intersection, a truck came and it was in my line of sight. I hit my brakes last second. I think I tried to get out the way and move to the right, but it was too late to do anything at that point.
Mr. Vidrine stated that he did not realize he was approaching an intersection
between Calliope and Annunciation Streets. All he saw was the on-ramp to the
interstate.
Following the accident, the police reached the scene quickly. One of the
officers asked Mr. Vidrine to move his truck out of traffic, but the truck was not
driveable. Mr. Vidrine was at the accident scene for approximately thirty minutes
before he was driven to the DWI testing facility. He recalled telling Officer
Walker, who was administering the DWI testing, that he had club feet, but he did
not decline to take the tests. He stated that he was unaware that he had the option
15 to decline the testing.
With respect to his club feet, Mr. Vidrine stated that he suffers arthritic pain
when the weather is cold. He stated that “[b]alancing is extremely difficult.” It
was Mr. Vidrine’s opinion that his club feet prevented him from correctly
performing the tests, which Officer Walker directed. Mr. Vidrine stated that he
was surprised at the result, .121 blood alcohol content, of his breathalyzer test.
Following the test, Mr. Vidrine was placed under arrest and taken to Central
Lockup.
Mr. Vidrine testified that he was very sorry for what happened. However,
he reiterated that on the night of the accident, “I did not feel that I was impaired …
[a]nd I know when I came up to what we now know is an intersection, there was
nothing showing me that I needed to stop whatsoever.”
On cross-examination, Mr. Vidrine admitted that he lied to Officer Walker
when he informed him that he had not consumed any alcoholic beverages. Mr.
Vidrine admitted that prior to this accident, he paid a ticket as a result of a traffic
violation conviction. Further, Mr. Vidrine admitted that his club feet did not affect
his ability to drive a vehicle.
Upon viewing an enlarged photograph of the intersection at issue, Mr.
Vidrine admitted that there was a white line all the way across the intersection and
that such a line is indicative of an intersection. Mr. Vidrine further admitted that
traffic lights are indicative of an intersection if the traffic lights are visible to the
driver. At that point, the prosecutor acknowledged that the light furthest to the left
was not present on the date of the accident.
16 With respect to the Field Sobriety Tests, Mr. Vidrine opined that his club
feet adversely affected his ability to perform the Walk-and-Turn Test and the One
Leg Stand Test. However, he admitted that his subpar performance on the
Horizontal Gaze Nystagmus Test could not be attributed to his club feet. Further,
his feet played no role in his score of .121 blood alcohol content on the Intoxilyzer
5000.
Dr. Gary Wimbish was accepted as an expert in the field of forensic
toxicology and in the field of administering Standardized Field Sobriety Tests. Dr.
Wimbish explained that with the Intoxilyzer 5000, the intent is to take someone’s
breath to provide a measurement as to their alcohol blood level. Dr. Wimbish
stated that the best method to determine the alcohol content of a person’s blood is
to take a blood sample.
Dr. Wimbish next explained how Intoxilyzer machines work. Specifically,
the machine takes a person’s breath from their lungs and “make[s] a reading as to
what is the actual content of alcohol per unit in the blood.” Dr. Wimbish opined
that unlike with a blood sample, with a breath test there is a “potential for
variability” in the results. This variability comes about because every person is
different, and the ratio of air coming in and going out is different for everyone.
Defense counsel played a portion of the video reflecting Officer Walker’s
interaction with Mr. Vidrine at the DWI testing facility. In watching the video, Dr.
Wimbish noted that Mr. Vidrine was “standing politely and waiting on
instructions. He wasn’t aggressive, he wasn’t obtuse, he wasn’t trying to over
explain.” According to Dr. Wimbish, these are signs that Mr. Vidrine was not
intoxicated. He explained that alcohol “releases inhibitions to where a person will
17 not regard the social graces as much as they would normally, so they’re more
aggressive, offensive, and actually obtuse to the wants of the officer, usually.” Dr.
Wimbish also opined, after watching the video, that he did not find Mr. Vidrine to
be slurring his speech.
Next, the video recorded Officer Walker administering to Mr. Vidrine the
Horizontal Gaze Nystagmus Test. Dr. Wimbish opined that, based on the camera
view, he could not detect the deficiencies to which Officer Walker testified. As for
the Walk-and-Turn Test and the One Leg Stand Test, Dr. Wimbish opined that Mr.
Vidrine’s club feet made him “a non-candidate” for these tests. Further, Dr.
Wimbish determined that Officer Walker did not properly administer the tests
because he failed to demonstrate the “whole test” to Mr. Vidrine before asking him
to perform them.
Dr. Wimbish, upon viewing Mr. Vidrine’s interactions with Officer Walker,
stated that Mr. Vidrine was clearly experiencing stress. However, “[w]ith alcohol
on board,” a person’s stress level decreases. Dr. Wimbish opined that another sign
of alcohol influence is mild euphoria, talkativeness and decreased inhibitions.
However, Dr. Wimbish opined that Mr. Vidrine was being “very cautious.” Dr.
Wimbish elaborated: “With alcohol, you lose the ability to control your speech …
slurred speech will come forward. I didn’t hear any of it.”
Dr. Wimbish concluded that Mr. Vidrine’s breathalyzer test result of .121
blood alcohol content did not correspond to how he interacted with Officer Walker.
Dr. Wimbish stated that Mr. Vidrine’s blood alcohol level, as replicated by the
breathalyzer, was commensurate with a person drinking four alcoholic beverages.
Dr. Wimbish opined that if a person has four alcoholic beverages, there would be
clear signs of intoxication and such signs were not present in this case. 18 On cross-examination, Dr. Wimbish stated that scientifically, it would be a
“blessing” if breath alcohol tests were no longer employed to measure a person’s
blood alcohol concentration. Dr. Wimbish admitted that not everyone reacts the
same to the consumption of alcohol. “Some people get drunk on virtually nothing.
Other people with a lifetime experience of abusing alcohol develop some
tolerance.”
Dr. Wimbish admitted that he owns a consulting firms and he consults on
cases at the request of lawyers. However, he stated that he declines to offer his
opinion in the majority of cases; he only gets involved “if [he] can help.” On re-
direct examination, Dr. Wimbish stated that in the past he has offered testimony on
behalf of both the prosecution and the defense.
Douglas Robert stated that he worked as a traffic engineer for Jefferson
Parish for twenty-nine years and had been qualified in court as an expert in the
field of traffic engineering. At that point, the prosecution stipulated to Mr.
Robert’s qualification as an expert in the field of traffic engineering.
Mr. Robert testified that on the night of the accident, one of the overhead
lights at the intersection of Calliope and Annunciation Streets, was removed. The
vertically-hanging light was removed so that Mardi Gras floats could be
transported under the light. In other areas of New Orleans, specifically, the
intersections of Poydras and St. Charles and Poydras and Baronne, the traffic lights
are hung horizontally. As such, there is no need for the lights to be removed to
facilitate the transportation of Mardi Gras floats.
Mr. Robert stated that in placing traffic signals, one must take into account
“the primary reason for the lane.” One must think about where the driver is
19 “heading” and what purpose the driver has in being in a particular lane. After
taking this into account, one could “signalize appropriately.”
Mr. Robert opined that the signal configuration at the intersection of
Calliope and Annunciation Streets did not give the person driving in the ramp lane
toward the expressway “precise information about what he’s supposed to do at this
intersection.” He explained that a driver is given precise information by placing
traffic signals over the primary lanes.
In the present case, no light signal was above the ramp lane. Further, the
light on the post, to the far right of the intersection, was “out of alignment,” as “it’s
angled away from the driver.” Mr. Robert stated that if the post-traffic signal had
been aligned, the first chance a driver would see the traffic light would be when he
or she was “59 feet from the front of a vehicle to the centerline of the movement of
the lane of Annunciation … [i]t would be 59 feet from the conflicting car.” With
that in mind, Mr. Robert stated that a driver traveling thirty-five miles per hour
would have one second to brake before hitting a car traveling on Annunciation
Street. Based on expert testimony that Mr. Vidrine applied his brakes at one
second prior to the crash, Mr. Robert concluded that Mr. Vidrine “had pretty good
perception reaction time.” It further showed, according to Mr. Robert, that Mr.
Vidrine did not disregard the light, but rather, tried to stop as soon as he could.
Thereafter, it was brought to Mr. Robert’s attention that Mr. Vidrine,
according to the CDR data, was traveling at a greater speed than thirty-five miles
per hour. His rate, on average, was approximately thirty-nine miles per hour. Mr.
Robert, however, did not fault Mr. Vidrine for going above the speed limit,
explaining:
20 I would probably expect higher speeds in the particular lane to go up the ramp for a couple of reasons. One, simply because it’s a ramp and that’s how we drive when we approach ramps. You know, we see a free movement area ahead of us and we don’t see any problems and we accelerate to go forward. The other reason is simply that’s an uphill ramp, so you don’t want to lose any speed on the ramp going up to I-10.
Mr. Robert testified that he studied a State’s exhibit, which, in his opinion,
showed two individuals, other than Mr. Vidrine, “running the red [light]” on
Calliope Street to get onto the I-10 ramp. Further, based upon his investigation,
Mr. Robert stated that the collision was not a straightforward “t-bone” collision;
instead, Mr. Vidrine’s truck hit Mr. Friedman’s truck at a slight angle. This
differentiation demonstrated to Mr. Robert that Mr. Vidrine attempted to avoid the
collision, turning his vehicle in a rightward direction immediately before impact.
In Mr. Robert’s opinion, this reaction on the part of Mr. Vidrine reflected “very
competent driving” though, at the time he reached this conclusion, he “didn’t know
Mr. Vidrine’s condition.”
Mr. Robert stated that if he had been the traffic engineer for the City of New
Orleans, he would not have allowed the third traffic signal at the intersection of
Calliope and Annunciation Streets to be removed. According to Mr. Robert, there
were four accidents, not including the accident at issue, which occurred at the
pertinent intersection during the period the third traffic signal was removed.
“[T]here were three right angle accidents … and a sideswipe around the ramp….”
On cross-examination, Mr. Robert admitted that the two traffic signals that
were functioning on the night of the accident, were visible from Tchoupitoulas
Street (one block away from the crash site) from the left on-ramp lane if a driver
was looking to his right, taking note of traffic in the adjacent lanes. However, it
21 was Mr. Robert’s opinion that for traffic signaling to be deemed adequate, there
should be a traffic signal over each lane; that would be his “design preference.”
ERRORS PATENT
La. R.S. 14:32.1(B) provides that “[w]hoever commits the crime of
vehicular homicide shall be fined not less than two thousand dollars nor more than
fifteen thousand dollars.” In sentencing Mr. Vidrine, the trial court did not impose
a fine as mandated by La. R.S. 14:32.1(B). This Court has ruled that the failure to
impose a mandatory fine requires that the matter be remanded for the imposition of
that fine. State v. Williams, 03-0302, pp. 3-4 (La. App. 4 Cir. 10/6/03), 859 So. 2d
751, 753. Accordingly, we remand the matter for the trial court to impose the
mandatory fine.
INSUFFICIENT EVIDENCE
Legal Impairment
Mr. Vidrine contends that there was insufficient evidence to support his
conviction on the charge of vehicular homicide because the State failed to prove
that he was legally impaired at the time of the accident. Mr. Vidrine challenges the
accuracy of his breathalyzer test in determining his blood alcohol content. The
result of the testing reflected that he had a blood alcohol content of .121, over the
legal limit in Louisiana of .08. According to Mr. Vidrine, the test could not have
been accurate because he showed no signs of being intoxicated.
When reviewing the sufficiency of the evidence to support a conviction,
Louisiana appellate courts apply the standard enunciated in Jackson v. Virginia,
443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Under the Jackson standard,
an appellate court shall determine whether, after viewing the evidence in the light
most favorable to the prosecution, a rational trier of fact could have found that the 22 elements of the offense were proven beyond a reasonable doubt. Id., 443 U.S. at
319, 99 S.Ct. at 2789; State v. Tate, 01-1658, p. 4 (La. 5/20/03), 851 So. 2d 921,
928. The reviewing court has to consider the whole record, just as the rational trier
of fact considers all of the evidence, and the actual trier of fact is presumed to have
acted rationally. State v. Mussall, 523 So. 2d 1305, 1310 (La. 1988). “If rational
triers of fact could disagree as to the interpretation of the evidence, the rational
trier’s view of all the evidence most favorable to the prosecution must be adopted.”
State v. Egana, 97-0318, p. 6 (La. App. 4 Cir. 12/3/97), 703 So. 2d 223, 228. “[I]t
is not the function of an appellate court to assess the credibility of witnesses or to
reweigh the evidence.” State v. Scott, 12-1603, p. 11 (La. App. 4 Cir. 12/23/13),
131 So. 3d 501, 508, citing State v. Johnson, 619 So. 2d 1102, 1109 (La. App. 4th
Cir. 1993). “Credibility determinations, as well as the weight to be attributed to
the evidence, are soundly within the province of the factfinder.” Id., citing State v.
Brumfield, 93-2404 (La. App. 4 Cir. 6/15/94), 639 So. 2d 312, 316. “Moreover,
‘[c]onflicting testimony as to factual matters is a question of weight of the
evidence, not sufficiency.’” State v. Scott, 15-0778, p. 9 (La. App. 4 Cir. 6/29/16),
197 So. 3d 298, 304 (quoting State v. Jones, 537 So. 2d 1244, 1249 (La. App. 4th
Cir. 1989)). “Such a determination rests solely with the trier of fact who may
accept or reject, in whole or in part, the testimony of any witness.” State v.
Johnson, 09-0259, p. 9 (La. App. 4 Cir. 9/16/09), 22 So. 3d 205, 211. “Absent
internal contradiction or irreconcilable conflict with the physical evidence, a single
witness’s testimony, if believed by the fact finder, is sufficient to support a factual
conclusion.” State v. Marshall, 04-3139, p. 9 (La. 11/29/06), 943 So. 2d 362, 369,
citing State v. Legrand, 02-1462, p. 5 (La. 12/3/03), 864 So. 2d 89, 94.
23 The crime of vehicular homicide is defined by La. R.S. 14:32.1, which
provides in pertinent part:
A. Vehicular homicide is the killing of a human being caused proximately or caused directly by an offender engaged in the operation of, or in actual physical control of, any motor vehicle, aircraft, watercraft, or other means of conveyance whether or not the offender had the intent to cause death or great bodily harm, whenever any one of the following conditions exist and such condition was a contributing factor to the killing: (1) The operator is under the influence of alcoholic beverages as determined by chemical tests administered under the provisions of R.S. 32:662.
(2) The operator’s blood alcohol concentration is 0.08 percent or more by weight based upon grams of alcohol per one hundred cubic centimeters of blood.
* * *
(4) The operator is under the influence of alcoholic beverages.
In support of his claim that the State failed to prove that he was impaired at
the time of the accident, Mr. Vidrine highlights the testimony, or lack thereof, of
the initial responders to the accident scene. Mr. Vidrine asserts that if he had been
intoxicated, the officers would have made note of it and relayed that in their
testimony.
A review of the testimony of the first responders, Officers Oquendo and
Detective Knowles, reflects that contrary to Mr. Vidrine’s suggestion, the officers
did not have significant contact with him, as he was not injured as a result of the
accident. Instead, the officers were focused on the occupants of the other vehicle,
both of whom were injured, one fatally. Further, as Detective Knowles testified, it
was not their job to investigate the accident, as that was a duty left to the New
24 Orleans Police Department Fatality Unit. Instead, the first responders were
focused on securing the accident scene.
Mr. Vidrine also questions the reliability of his breathalyzer test. In State v.
Winstead, 16-217 (La. App. 5 Cir. 5/26/16), 193 So. 3d 565, the defendant raised
such a challenge. The Winstead Court, in finding that “a rational trier of fact could
have found the evidence was sufficient with respect to establishing the validity of
the Intoxilyzer 5000 test results,” took note of the strict regulations imposed to
ensure the integrity and reliability of breathalyzer tests and emphasized that the
machine at issue had been tested both before and after the defendant’s test and
found to be in perfectly good working order. 16-217, p. 11, 193 So. 3d at 573.
Further, on the date the test was administered, the machine itself performed a
diagnostic test to verify it was in good working order. Id., 16-217, pp. 10-11, 193
So. 3d at 572-73. The same is true in the present case.
Mr. Johnson, employed by the Louisiana State Police, testified with respect
to the rigorous testing requirements to which the Intoxilyzer 5000 machines are
subjected. The machines are tested every four months. The machine used to test
Mr. Vidrine was inspected on November 11, 2015, and again on February 17,
2016. It was found to be functioning well within the plus or minus .010 range
acceptable under Louisiana law. Additionally, Officer Walker testified that prior
to administering the test to Mr. Vidrine, the Intoxilyzer 5000 performed a “self-
test,” confirming that it was functioning properly. As in Winstead, a rational
factfinder could have found, based on the above testimony, that the Intoxilyzer
5000 test result, showing Mr. Vidrine with a blood alcohol content of .121, was
valid.
25 Mr. Vidrine, in support of his contention that he was not impaired when he
ran red lights and collided with the truck, relies heavily on the testimony of Dr.
Wimbish, accepted as an expert in the field of forensic toxicology and in the field
of administering Standardized Field Sobriety Tests. Dr. Wimbish, in opining that
Mr. Vidrine was not intoxicated, did not directly state that the Intoxilyzer 5000 test
result was inaccurate. Instead, Dr. Wimbish stated that there was a “potential for
variability” in the results of breathalyzer tests, and that Mr. Vidrine’s test result of
.121 did not correspond to the manner in which Mr. Vidrine was acting.
Dr. Wimbish’s assessment of Mr. Vidrine’s condition on the night of the
accident was not based on first-hand knowledge. Dr. Wimbish did not observe Mr.
Vidrine in real time; he was not at the crash site. Instead, his opinion was based on
Officer Walker’s body-camera footage, footage taken when Officer Walker
interacted with Mr. Vidrine at the DWI testing center. According to Dr. Wimbish,
because Mr. Vidrine was “standing politely,” was “waiting on instructions,”
“wasn’t aggressive,” “wasn’t obtuse,” and “wasn’t trying to over explain,” that
means Mr. Vidrine was not impaired.
Dr. Wimbish’s assessment of Mr. Vidrine also runs counter to Officer
Walker’s impression. Again, it was Officer Walker who was with Mr. Vidrine for
a prolonged period of time following the crash. It was Officer Walker, not Dr.
Wimbish, who administered the Horizontal Gaze Nystagmus Test and determined
that Mr. Vidrine’s eye movement was deficient. Dr. Wimbish questioned Officer
Walker’s finding based on body-camera footage, which cannot be categorized as
clear for the purpose of tracking Mr. Vidrine’s eye movement. Officer Walker
specifically testified that one generally cannot detect a problem with eye
movement based on a review of body-camera footage. Officer Walker explained 26 that on only one prior occasion was he able to make a proper evaluation based on
such footage.
Further, Officer Walker was the one who actually spoke with Mr. Vidrine
and testified he could smell the faint odor of alcohol on his breath. Dr. Wimbish
could not contradict this assessment based on a viewing of body-camera footage.
Moreover, Officer Walker’s assessment that Mr. Vidrine was impaired was based
upon being in Mr. Vidrine’s presence, which included Officer Walker questioning
Mr. Vidrine about whether he had been drinking and hearing him untruthfully state
that he had not consumed alcoholic beverages. Officer Walker, rather than Dr.
Wimbish, was in the better position to make an accurate assessment of Mr.
Vidrine’s sobriety. The law is clear that the testimony of a single witness, if
believed, is sufficient to support a factual conclusion. Marshall, 04-3139, p. 9, 943
So. 2d at 369. In this case, Officer Walker’s conclusion that Mr. Vidrine was
impaired is supported by the result of Mr. Vidrine’s Intoxilyzer 5000 test.
The validity of Dr. Wimbish’s assessment was further undermined by his
acknowledgement that different people react differently when they consume
alcohol. On cross-examination, Dr. Wimbish testified: “Some people get drunk on
virtually nothing. Other people with a lifetime experience of abusing alcohol
develop some tolerance.” Thus, the fact that Mr. Vidrine did not act “drunk”
following the accident did not necessarily mean he was not impaired under the law.
As Dr. Wimbish opined, a person may have a high tolerance for alcohol, yet his or
her alcohol consumption would be reflected in a breathalyzer test as it was in this
instance. Accordingly, we find Mr. Vidrine’s assertion that the evidence was
insufficient for a reasonable factfinder to determine that he was legally impaired at
the time of the accident lacks merit. 27 Contributing Cause
Mr. Vidrine avers that the evidence was insufficient to support his
conviction because even if he was legally impaired at the time of the accident, the
State failed to prove that his impaired condition was a contributing cause of the
accident.
The Louisiana Supreme Court has held “that under the vehicular homicide
statute, the state, in order to convict, must prove that an offender’s unlawful blood
alcohol concentration combined with his operation of a vehicle . . . cause[d] the
death of a human being.” State v. Taylor, 463 So. 2d 1274, 1275 (La. 1985). “It is
insufficient for the state to prove merely that the alcohol consumption ‘coincides’
with the accident.” State v. Archer, 619 So. 2d 1071, 1074 (La. App. 1st Cir.
1993) (quoting Taylor, 463 So. 2d at 1275).
Generally, with respect to causation, in State v. Kalathakis, 563 So. 2d 228,
231 (La. 1990), the Louisiana Supreme Court noted:
A causal relation between the defendant’s conduct and the harm for which the prosecutor seeks to impose criminal sanctions is an essential element of every crime. Causation is a question of fact which has to be considered in the light of the totality of circumstances surrounding the ultimate harm and its relation to the actor’s conduct. M. Bassiouni, Substantive Criminal Law, §§ 5, 5.2 (1978). A defendant should not be held responsible for remote and indirect consequences which a reasonable person could not have foreseen as likely to have flowed from his conduct or from those consequences which would have occurred regardless of his conduct. Id.
According to Mr. Vidrine, the evidence presented at trial failed to prove that
his operation of the vehicle was “subpar.” Mr. Vidrine maintains that “[t]here was
no light signal visibly observable to Chad Vidrine, and it is impossible to
reasonably conclude that he disregarded what he did not know existed.” Mr. 28 Vidrine states that his “experts scientifically established that it was impossible for
[defendant] to have been attentive to those other lanes of travel’s light[] signals and
at the same time properly navigate his lane of travel.” However, a review of the
testimony of Mr. Robert, Mr. Vidrine’s “traffic engineering” expert, reveals that
Mr. Vidrine mischaracterized Mr. Robert’s opinion in this regard.
Mr. Robert’s testimony, regarding Mr. Vidrine’s alleged inability to see the
traffic signals, was in connection with the traffic signal on the post, to the far right
of the intersection. Mr. Robert stated that the first opportunity Mr. Vidrine,
traveling in the far left lane, would have had to see that particular traffic signal
would be when he was “59 feet from the front of a vehicle to the centerline of the
movement of the lane of Annunciation … [i]t would be 59 feet from the conflicting
car.” Accordingly, Mr. Robert opined that a driver traveling the speed limit of
thirty-five miles per hour would have only one second to brake before hitting a
vehicle traveling on Annunciation Street. Thus, Mr. Robert concluded that the
accident did not occur because Mr. Vidrine failed to see the light because of his
impairment. Instead, the accident occurred because Mr. Vidrine could not possibly
have seen the light until one second before impact.
Mr. Robert’s testimony reflects he did not testify that Mr. Vidrine could not
have seen the overhead traffic signal, which was closer to the lane in which Mr.
Vidrine was traveling. In fact, Mr. Robert signified that a driver aware of his
surroundings and looking at adjacent lanes of traffic, could see both of the traffic
signals that were properly functioning on the night of the accident. The visibility
of those signals was reflected in a blown-up photograph of the intersection. The
lights might have been unnoticed by an impaired driver solely absorbed in reaching
the expressway on-ramp, with no care for the cars in his adjacent right lanes. Mr. 29 Vidrine essentially admitted that he was such a driver, testifying: “[W]hen I came
up to what we now know is an intersection, there was nothing showing me that I
needed to stop whatsoever.”
Mr. Vidrine makes much of evidence that once he realized, a mere second
before impact, that he was on a collision course with Mr. Friedman’s truck, he
acted appropriately, applying his brake and swerving to the right. However, if Mr.
Vidrine had not been impaired, he, like other drivers in the left lane of traffic,
might have seen the red lights and stopped. There would have been no need for
last-second action to attempt to avoid what, by that point, was an unavoidable and
fatal collision. Driving requires dividing attention to make sure one is aware of all
traffic lights, signs, and potential hazards, including those in a driver’s peripheral
vision.
According to Mr. Vidrine, “[t]he critical fallacy underlying the entire
prosecution is that no light was there to have been disregarded by Mr. Vidrine.”
This allegation is simply false. While three traffic lights were not operating at the
intersection, it is undisputed that two traffic lights were properly functioning.
Further, the traffic lights were visible from the lane in which Mr. Vidrine was
traveling. That evidence was not refuted. It was also undisputed that at the time of
the accident, the lights on Calliope Street were red; while Mr. Friedman, traveling
on Annunciation Street, had a green light. Under these circumstances, the
proximate cause of the accident was undisputedly Mr. Vidrine running the red
lights on Calliope Street.
Mr. Vidrine contends that “there is no evidence in the record to support the
crux of the State’s argument,” i.e., that Mr. Vidrine should have seen the red lights
and stopped. Again, however, Mr. Vidrine is mistaken. First, the traffic lights 30 were visible. Second, there was the testimony of defense witness, Mr. Schoen,
who stated that he drove across the intersection frequently, including during Mardi
Gras season. Mr. Schoen, on cross-examination, admitted that one can see the
intersection at Calliope and Annunciation Streets because there are traffic signals.
Third, while Sergeant Thompson could not state with certainty precisely when a
driver traveling in the left, on-ramp lane would see the overhead traffic signal, he
was certain that the light would be visible before his or her vehicle crossed the
intersection. Sergeant Thompson was describing the unimpaired driver, the driver
aware of his surroundings, using his peripheral vision to note traffic and a traffic
signal in the adjacent lane. Once again, however, Mr. Vidrine, under the influence
of alcohol, missed it, stating that “there was nothing showing me that I needed to
stop whatsoever.”
Mr. Vidrine relies upon Mr. Robert’s testimony to the effect that it was his
“design preference” to have traffic signals over each lane of traffic and that the
absence of a light over each lane failed to provide the driver with “precise
information about what he’s suppose[d] to do at [the] intersection.” Optimally,
perhaps, there should have been three traffic signals at the pertinent intersection.
However, that Mr. Robert’s “design preference” was not followed, does not
absolve Mr. Vidrine. Sergeant Crowden provided unrefuted testimony that no
other major accidents took place at the intersection during the Mardi Gras season.
Sergeant Crowden further testified, based on the CDR data, that Mr. Vidrine was
speeding at the time of the crash.
Mr. Robert testified that four other accidents occurred during the Mardi Gras
season at the intersection of Calliope and Annunciation Streets, though, admittedly,
none were major accidents. According to Mr. Vidrine, three of the four accidents 31 “occurred in the exact same way that Chad Vidrine’s and Cory Friedman’s
occurred: right angle collisions between a vehicle from the on-ramp Calliope lane
with no light signal and a vehicle with a green light traveling on Annunciation.”
Because the accident reports for these alleged other incidents were not submitted
into evidence, there is no way to verify the accuracy of Mr. Vidrine’s account.
In the present matter, evidence demonstrated that Mr. Vidrine was impaired;
his breathalyzer test reflected that his blood alcohol content was .121; and Officer
Walker opined that Mr. Vidrine was impaired. Evidence also showed that Mr.
Vidrine was speeding at the time of the crash. Finally, the photograph of the
accident site reflected that the traffic signals were visible to drivers in the on-ramp
lane.
Next, Mr. Vidrine highlights evidence that Mr. Sunseri was not wearing his
seat belt at the time of the collision. Mr. Vidrine maintains that if Mr. Sunseri had
been wearing his seat belt, he likely would not have been ejected from the truck’s
sun roof and would not have suffered multiple blunt force traumas that resulted in
his death. Thus, Mr. Vidrine concludes that “the jury could have reasonable doubt
that the proximate and direct cause of [the victim’s] death was Chad Vidrine’s
operation of his vehicle, rather than that [the victim’s] failure to wear a seatbelt
was the proximate and direct cause of his death.”
It is well-established that to convict a defendant for vehicular homicide, “the
state does not need to prove that the defendant’s intoxication was the sole cause of
the accident; rather, the defendant’s intoxication need only be a contributing factor
that led to the killing.” State v. Beene, 49,612, p. 8 (La. App. 2 Cir. 4/15/15), 164
So. 3d 299, 304, citing State in the Interest of R.V., 11-138 (La. App. 5 Cir.
32 12/13/11), 82 So. 3d 402; see also State v. Dock, 49,784, p. 10 (La. App. 2 Cir.
6/3/15), 167 So. 3d 1097, 1103.
In the present matter, a rational juror could find that Mr. Vidrine’s
intoxicated condition was a contributing factor that led to Mr. Sunseri’s death. Mr.
Vidrine admitted to having consumed two and a half alcoholic beverages and the
State established that he had a blood alcohol content of .121. Evidence was
presented that Mr. Vidrine sped through a red light.
In this case, Mr. Vidrine was speeding shortly before impact, focused on the
expressway and was traveling at forty-two miles per hour in a thirty-five- mile-per-
hour zone. More importantly, Mr. Vidrine, in his impaired condition, failed to
notice traffic lights that were visible from the lane in which he was traveling. By
his own admission, Mr. Vidrine did not see the traffic lights; failed to recognize
that he was at an intersection; and concentrated solely on ascending to the
interstate. Mr. Vidrine’s actions are sufficient to support the jury’s finding that he
proximately caused Mr. Sunseri’s death and that his .121 blood alcohol content
was a contributing factor to the killing.
DECREE
For the above-mentioned reasons, we find the testimony and evidence
presented at trial was sufficient to support Mr. Vidrine’s conviction and sentence
for vehicular homicide. However, as the trial court did not assess the mandatory
fine, the matter is remanded to the trial court for the imposition of the mandatory
fine.
CONVICTION AND SENTENCE AFFIRMED; REMANDED
Related
Cite This Page — Counsel Stack
State of Louisiana v. Chad M. Vidrine, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-of-louisiana-v-chad-m-vidrine-lactapp-2020.