IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON
MAY SESSION, 1997
FILED
January 20, 1998
STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9612-CC-00485 ) Cecil Crowson, Jr.
Appellate C ourt Clerk
Appellee, )
) BENTON COUNTY
)
V. )
) HON. JULIAN P. GUINN, JUDGE WILLIAM ROY HOPPER, )
)
Appe llant. ) (VEHICU LAR HO MICID E)
FOR THE APPELLANT: FOR THE APPELLEE:
D.D. MADDOX JOHN KNOX WALKUP MADDOX, MADDOX & MADDOX Attorney General & Reporter 105 East Main Street P.O. Box 430 KENNETH W. RUCKER Huntingdon, TN 38344 Assistant Attorney General 2nd Floor, Cordell Hull Building 425 Fifth Avenue North
Nashville, TN 37243
G. ROBERT RADFORD
District Attorney General
TODD ALAN ROSE
Assistant District Attorney General 111 Church Street
P.O. Box 686
Huntingdon, TN 38344
OPINION FILED ________________________ AFFIRMED THOMAS T. WOODALL, JUDGE
OPINION
The Defendant, W illiam R oy Ho pper, a ppea ls as of r ight from his con viction of vehicular hom icide following a jury trial in the Circuit Co urt of Benton C ounty. Defendant raises five (5) issues in this appeal: (1) whether the trial court erred by denying his motion to suppress the blood alcohol sample and test results from the samp le drawn at Bento n Cou nty General Hospital; (2) whether the trial cou rt erred by denying his motion to suppress the blood alcohol sample and test results from the sample taken at Vanderbilt University Medical Center; (3) whether it was error for the trial court to allow the prosecution to introduce evidence of the testing of a sample of blood drawn at Vanderbilt University Medical Center from the Defendant without consent and while he was unconscious; (4) whether his constitutional rights were violated by the use of blood samples taken while he was unconscious; and (5) whether a comment by the trial court concerning the contractual status of Smith-Klien-Beecham Laboratories with the State of Tennessee was plain error. We affirm the judgm ent of the tria l court.
On Decem ber 15, 1995, State Trooper John Clem was on duty when he came upon a two-car crash on U.S . Highw ay 641 in Cam den, T enne ssee , shortly after 8:00 p.m . At the scene he found a blue Chevrolet Lumina, driven by the Defen dant, facing so uthbou nd and a grey C hevrolet M onte Carlo, driven by the victim, Nelda Johnson, sitting up on a guardrail facing northeast. Trooper Clem radioed for rescue person nel. He th en approached the blue car and heard the Defendant making gurgling noises in his throat, and observed that he was still
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breathing. Troo per C lem w ent ove r to the o ther ca r but did not se e anyo ne in the driver’s seat. He subsequently discovered the victim in the back seat and was un able to loc ate a pu lse in the victim ’s neck.
Medical personnel arrived a short time later and confirmed that the victim was dead. Rick Davidson, an emergency medical technician with Camden Gen eral, noticed a strong smell of alcohol on Defendant. Trooper Clem also noticed a strong odor of alcohol on the Defendant and in his car. Trooper Clem looked in Defe ndan t’s vehic le and discovered a partially consumed six-pack of beer, an em pty twelve-pack beer box, another twelve-pack box containing some beers, two empty beer cans in the passenger side flo orboa rd, and a partia lly full beer bo ttle in the driver ’s side do or com partme nt.
The ambulance took the Defendant to C amd en G enera l Hosp ital.
Thereafter, Troop er Clem called the Benton Coun ty Sheriff’s Office and the Camden Police D epartm ent, and asked them to send o fficers to the h ospital to request a blood sample from Defendant because he needed to continue his investigation at the accident scene. He also told Lori Lessenberry, the paramedic, that he needed a blood test run on Defendant. Dr. T imothy Linder treated Defendant in the Camden General Hospital emergency room. He testified that he noticed the smell of alcohol on Defendant while he was intubating him. At the reque st of Dr. Lind er, Steph anie Floy d, a me dical tech nologist a t Camden Gen eral H ospita l, collecte d bloo d from the De fenda nt. Floyd ran a cross-match of Defenda nt’s blood in order to d etermine the type neede d for a transfusion. Dr. Linder also requested that another sample be taken for the purpose of determ ining the D efenda nt’s blood alcohol lev el. Dr. Linder testified
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that he did not rec all bein g ask ed by a param edic o n beh alf of Troo per Clem to draw blood for a blood alcohol test. Floyd sent that blood sample to the Smith- Klien-Beecham Laboratories to be analyzed for alcohol content because Camden Gene ral did not h ave the e quipm ent to per form this a nalysis.
Dr. Linder d ecided to transfer Defendant to Vanderbilt University Medical Center beca use C amd en G enera l did not have the resourc es to treat D efenda nt. Camden General notified Vanderbilt of the transfer, the Defendant’s injuries, and the fact that he smelled strongly of alcohol. When Defendant arrived at Vand erbilt, a registered nurse drew a blood sample from the unconscious Defen dant. Because of Defendant’s physical condition, he was not asked to sign a consen t form. A m edical tec hnolog ist at Vand erbilt analyz ed the b lood. It showed that Defendant’s blood alcohol level was .16. Dr. John Promes was called as a witness by the defense at trial. Dr. Promes was one of the Defenda nt’s attending physicians at Vanderbilt University Medical Center. During cross-examination, Dr. Promes testified that he was a ware th at a blo od sa mple was taken from the Defendant for blood alcohol analysis. Dr. Promes further testified that he relied on these blood alcohol test results in his care and treatment of Defendant. This sample was destroyed by medical personnel one week la ter.
Trooper Clem arrived at Camden General after Defendant had been transported to Vanderbilt. He asked about the blood sample from Defendant, and was informed that it “had already gone in with his medical records,” so Trooper Clem never received the sample. At this point he requested that a sample of blood be drawn from the victim. This was done and given to Trooper Clem who
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sent it to the TBI crime lab for analysis. The analysis showed no alcohol was present in the victim’s blood. The analysis by Smith-Klien-Beecham of the blood drawn from Defendant at Camden General showed his blood-alcohol level to be .19. The test was done two days after the accident, and the sample was destroyed one wee k later bec ause th e lab wa s not aw are that the test results would b e used in litigation.
W hile ruling on an objection made by Defendant’s counsel, the trial judge stated in the jury’s presence tha t it was his understanding that the State of Tennessee had a co ntract with Smith-Klien-Beecham Laboratories. The Defense made no objection to this statement. However, a later witness from Smith-Klien- Beecham stated to the jury that he was not aware of any such contract with the State of T ennes see. Th e jury con victed the D efenda nt of vehicu lar hom icide.
Defe ndan t’s first two issues can be considered together. The uncontradicted proof in this record is that Trooper Clem asked certain persons to reque st me dical personnel at Camden General Hospital to withdraw a blood sam ple from Defendant for a blood alcohol analysis. However, the medical technologist who drew the sample testified that she did so at the request of D r. Linder. Dr. Linder confirmed that in the normal course of his work as an emergency room physician , he frequ ently requ ests blood alcohol analysis in the treatment of patie nts. Dr . Linde r did no t recall a nyone askin g him to withdraw blood at the request of Trooper Clem. Carol Wells, a nurse in the emergency room at Vanderbilt University Medical Center, testified that she drew blood from the Defendant during the course of his treatment at that facility. The purpose of getting the blood alcohol sample was to know how a patient might react if other
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drugs were administered into his system. She further testified that if a patient cannot give cons ent to draw blood, they do the procedure anyway in order to, if necessa ry, save the patient’s life. There is no question concerning the extensive nature of injuries to the Defendant, and that the Defendant remained unco nscious for thirteen (13) days after being admitted to Vanderbilt. Dr. Promes, the attending physician at Vanderbilt, testified that he was aware the blood sam ple was taken from th e Def enda nt for blo od alc ohol a nalysis , and that he exp licitly relied on the blood alcohol test results from the Defendant in his care and treatme nt of Defe ndant.
Defendant argues on appeal that there is no proof that the blood alcohol test results were a ctually used for medical purposes either at Camden General Hospital or Vand erbilt Unive rsity Medical Ce nter. In fact, it is undisputed that the test results from the blood drawn at Camden General were not available until two (2) days after the blood was drawn from Defendant, during which time he had already been transferred to Vanderbilt University Medical Center. However, in State v. Ridge, 667 S.W.2d 502 (Tenn. Crim. App. 1982), our Court held in a vehicular homicide case that “the sample of blood drawn pursuant to a medical request was analyzed by hospital personnel and the resu lts of that analysis were properly adm itted into evidence.” Id. at 505 (emp hasis adde d).
Even though Trooper Clem attempted to request the hospital personnel to draw blood from the Defe ndant fo r a blood alcohol te st, the record reflects that this request was never com mun icated to the m edica l perso nnel w ho ac tually drew the blood which led to the test results later admitted into evide nce in this case. There is nothing in the cas e law wh ich require s proof tha t the test res ults
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were actually us ed for m edical pu rposes . It is only require d that the blood be drawn pursuant to a m edica l request. Therefore, D efendant’s first two issue s are without m erit.
Defe ndan t’s third issue that the trial court erred by allowing the prosecution to introduce the test results of a blood sample drawn from Defendant while at Vand erbilt University Medical Center without his consent and while he was uncon scious is like wise witho ut merit.
The Defendant argues that since a consent and release form for withdrawal of blood by Vanderbilt was not signed by the Defendant or by anyone else on his behalf, then the use by the State of the test results as evidence was improper. He states in his brief that there is no lawful right for a hospital or medical personnel to draw blood from any patient for medical purposes when the patient refuses, or would refuse, if the patient was able to do so. Ho wever, Defendant does not cite an y authority to this Court for that proposition or how that proposition would prohibit introduction of the evidence in a criminal case during the State’s case in chief. Ridge clearly holds that blood drawn pursuant to a medical request and analyzed for blood alcohol content may be properly admitted into evidence. 667 S.W .2d at 505. While it is correct that Tennessee Code Annotated sectio n 55-1 0-406 (b) pro vides th at the b lood a lcoho l test results of blood drawn from a person who is unconscious or otherwise unable to consent to the test is not admissible without the consent of the person so tested, that statute only applies to situations where a law enforcement officer requests the test to be m ade. Ridge, 667 S.W.2d at 505. It is conc eded by De fenda nt in his brief that law enforc eme nt office rs did n ot requ est withdrawal of the blood at
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Vanderbilt University Medica l Center. Defen dant may o r may not ha ve a valid dispute with Van derbilt Un iversity Medical Ce nter. Howeve r, there is nothin g in the law that prohibits introduction of the evidence of the blood alcohol te st results from Vand erbilt U niversity Medic al Cen ter sim ply because that institution did not obtain a consent form from Defendant to withdraw the blood.
In his fourth issue, Defendant argues that he is denied his equal protection of the law since he was in a class of perso ns wh ere ev idenc e of blo od alc ohol is admitted into evidence when the person is unconscious, but under similar circumstances, blood alcohol test results would not be available against persons who are conscious and able to refuse consent to draw blood.
Defendant cites State v. Tester, 879 S.W .2d 823 (Te nn. 1994) in su pport of his argu ment o n this issue . In essence, the Defendant argues there are two classes of perso ns involve d in his eq ual prote ction argume nt: Those w ho are conscious, and those, like himse lf, who are unconscious when taken to medical facilities for treatment wh ere blo od alc ohol te sts m ight be advan tageo us in treatme nt. We do no t feel tha t the pu rporte d class ifications set forth by Defendant are subject to equal protection analysis. The case law which allows admis sibility into eviden ce of bloo d alcoho l test results ta ken pursuant to a medical request does not distinguish between blood drawn from conscious and unconscious persons. Simply because a conscious person might refuse consent to withdraw blood during me dical treatmen t, and therefore prevent the withdrawal of the blood, does not rise to the creation of two classifications which are treated unequa lly. In his brief, Defendant also makes a passin g argum ent that his rights to due p rocess , his right to be protecte d from s elf-incrimin ation, and his right to
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be protected against unlawful searches and seizures, was violated. However, he cites no authority in s upport o f this argum ent, and therefore it is waived. Tenn. R. App. P. 27(a)(7); Te nn. Ct. Crim. A pp. R. 10(b). In any event, we find these assertion s by De fendan t to be witho ut merit.
In his final issue, Defendant argues that it was plain error for the trial court to make a com ment, while ruling on an objection made by defense counsel, that Smith-Klien-Beecham Laboratories had a contract with the State of Tennessee to do bloo d alcoho l analysis tes ts.
The Defendant argues in his brief that it was an issue during the jury trial as to wheth er or not th e Sm ith-Klien-B eecha m Lab oratories had a co ntract with the State of Tennessee to perform the blood alcohol test for use in criminal proceedings. How ever, h e doe s not c ite to an y portio n of the record where this was a material issue in the case. Tenn. R. App. P. 27(a)(7) and (g); Tenn. Ct. Crim. App. R. 10(b). In any event, our review of the record reflects that whether or not the State had a contract with Smith-Klien-Beecham Laboratories was not a material issue. No objection was m ade b y the D efend ant to th e trial co urt’s comm ent. Neithe r was th is issue included in Def enda nt’s m otion fo r new tr ial. As such, the issue is waived on appeal. Tenn. R. App. P. 36() and 3(c). In any event, we do not feel that the trial court’s comments, if error, rise to the level of “plain error” as it does not affect “the substantial rights of an accused.” Tenn. R. Crim. P . 52(b).
Finding no error in the issues raised by Defendant, we affirm the judgment of the trial cou rt.
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THOMAS T. W OODALL, Judge
CONCUR:
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GARY R. WA DE, Judge
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JOHN H. PEAY, Judge