State v. Vaughn

759 S.W.2d 98, 1988 Mo. App. LEXIS 1416, 1988 WL 108148
CourtMissouri Court of Appeals
DecidedOctober 18, 1988
DocketNo. 15196
StatusPublished
Cited by3 cases

This text of 759 S.W.2d 98 (State v. Vaughn) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Vaughn, 759 S.W.2d 98, 1988 Mo. App. LEXIS 1416, 1988 WL 108148 (Mo. Ct. App. 1988).

Opinion

PER CURIAM:

A jury found defendant Arthur E. Vaughn guilty of manslaughter in violation of § 565.024.1(2), RSMo Supp.1984. His punishment was assessed at imprisonment for a term of seven (7) years and he has been ordered to pay a fine of $500. Vaughn has appealed. His sole point is that the trial court erroneously and preju-dicially admitted the result of a blood alcohol test which had not been approved by the Missouri Department of Health as required by §§ 577.020 and 577.026, RSMo [99]*99Supp.1984. In the circumstances presented, we affirm.

The automobile collision which gave rise to this prosecution occurred about 9:15 p.m. on June 13,1986. The defendant was driving north on Highway 160 just south of Springfield, Missouri. In the words of one witness, it had “just turned dark.” At the place where the accident happened, Highway 160 is a two-lane highway 24 feet wide with 8-foot shoulders. The highway runs north and south.

Mike Jones was driving south on Highway 160 immediately before the accident occurred. Jones was on his way home. His attention was drawn to a northbound vehicle which was coming “[sjtraight at [him].” Jones waited to see if the driver would return to his own lane, but the other driver — the defendant — made no effort to do so, and Jones was obliged to drive off the road to avoid being struck.

Lawanda Meltabarger and her husband were also traveling south on Highway 160 just before the collision occurred. Mrs. Meltabarger’s husband was driving. As Mrs. Meltabarger related the incident, she and her husband "... had just started down [a] hill and all of a sudden there was another vehicle in our lane going northbound and we swerved to get off the road to keep from hitting him, barely missing him and went off the road and he went past us.” Mrs. Meltabarger was aware there was a “small foreign car” behind her vehicle in the southbound lane. So, after the northbound vehicle (defendant’s automobile) had passed, Mrs. Meltabarger “... turned in [her] car seat. [She] turned to look behind ... to see if [the defendant] was going to get over on his side of the road, but he did not. He kept going straight and then I saw the crash when he hit the other vehicle.” The impact, according to Mrs. Meltabarger, “was like a big explosion.” Other witnesses corroborated the testimony given by Jones and Mrs. Meltabarger. Defendant’s vehicle, a 1971 Ford, struck a Datsun being driven by one Deborah Taylor, the 31-year-old mother of a son 11 years of age. Ms. Taylor sustained a massive skull fracture from which she died instantaneously.

The State had a good deal of evidence indicating that the defendant was intoxicated. Kevin Esterline, a paramedic dispatched to the scene of the accident, observed that the defendant’s speech was slurred and incoherent, and he considered the defendant’s thought processes to be impaired. Esterline believed the defendant was intoxicated. Dan Pruett, another paramedic, noticed the smell of alcohol on the defendant’s breath. He found the defendant’s speech slurred to the point that the defendant was unintelligible. Pruett had the opinion the defendant was intoxicated.

Sgt. Don Richardson, a member of the State Highway Patrol, arrived at the scene of the accident about 9:30 p.m. Sgt. Richardson noticed the “[o]dor of intoxicants” in the defendant’s automobile. The defendant was taken from the scene of the accident by helicopter and Sgt. Richardson “asked Troop D radio to send an officer by the hospital [to] arrest [the defendant] for driving while intoxicated.” Sgt. Richardson’s investigation indicated the defendant had been driving on the wrong side of the road and that several drivers had had to take evasive action to avoid being struck by the defendant’s vehicle. After the defendant had been flown to the hospital, Sgt. Richardson attempted to interview him there. The defendant smelled of alcohol even though his face was partially covered with an oxygen mask. His speech was incoherent. Sgt. Richardson was of the opinion that the defendant was intoxicated.

Trooper Jim Simpson was sent to the hospital where the defendant was taken. Trooper Simpson’s instructions were to determine whether the defendant was intoxicated. Trooper Simpson “smelled an obvious odor of intoxicants about [the defendant’s] person,” found the defendant to be so confused that he stuttered at times, and concluded, on the basis of his observation, that the defendant was intoxicated. At 10:30 p.m. Simpson arrested the defendant, gave him a Miranda warning and asked if he would submit to a blood alcohol test. The defendant agreed and a blood sample [100]*100was taken about 11 p.m. It may be noted, without going into detail, that the defendant offered evidence that he had been to a party before the accident occurred. The defendant testified he drank only one beer at the party. He had no memory, however, of the accident or of being taken to a hospital.

We have the view that the evidence was sufficient to support the judgment of conviction without evidence of any chemical tests. Defendant was convicted, as we have noted, of involuntary manslaughter as defined and denounced by § 565.024.1(2), RSMo Supp.1984. Section 565.024.1(2), RSMo Supp.1984, provided that:

“1. A person' commits the crime of involuntary manslaughter if he:
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(2) While in an intoxicated condition operates a motor vehicle in this state and, when so operating, acts with criminal negligence to cause the death of any person....”

A lay or non-expert witness may give evidence that an accused was intoxicated, and that opinion, if it is based on observation, constitutes substantial evidence. State v. Palmer, 606 S.W.2d 207, 208[1, 2] (Mo.App.1980); State v. Michaels, 543 S.W.2d 245, 250 — 51[7] (Mo.App.1976); State v. Edmonds, 468 S.W.2d 685, 688[6-7] [10] (Mo.App.1971). The testimony of the paramedics and the experienced officers who investigated the accident was sufficient to establish that the defendant was intoxicated when the fatal accident occurred.

The record further indicates that the defendant was driving at a high rate of speed on the wrong side of the road just as it became dark. He made substantially no effort to avoid oncoming traffic; at least two motorists were obliged to leave the roadway to avoid being struck. The evidence was sufficient to establish that the defendant was operating his vehicle with criminal negligence at the time of the collision. See State v. Stottlemyre, 752 S.W.2d 840, 844[4] (Mo.App.1988).

As noted, the sole point briefed in this court is that the trial court erroneously received the result of a chemical test for blood alcohol which had not been approved by the Department of Health. After the defendant had been taken to a Springfield hospital and at Trooper Simpson’s request, a blood sample was drawn and placed in a vial by an emergency room nurse. The sample was sent to Jefferson City, where it was analyzed for blood alcohol content by a chemist employed by the Missouri State Highway Patrol. Using a method of analysis known as gas chromatography, this chemist determined that the alcohol content of defendant’s blood was .20 percent.

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Related

State v. Todd
935 S.W.2d 55 (Missouri Court of Appeals, 1996)
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820 S.W.2d 682 (Missouri Court of Appeals, 1991)
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797 S.W.2d 575 (Missouri Court of Appeals, 1990)

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Bluebook (online)
759 S.W.2d 98, 1988 Mo. App. LEXIS 1416, 1988 WL 108148, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-vaughn-moctapp-1988.