Charles Patrick Goodman (appellant) appeals from his bench trial convictions for driving under the influence of alcohol (DUI) and aggravated involuntary manslaughter, in violation of Code §§ 18.2-266 and 18.2-36.1(B), respectively. On appeal, he contends that (1) the trial court erroneously admitted into evidence the results of blood alcohol concentration *378 testing performed on blood drawn without his actual consent while he was unconscious or incoherent and apparently unable to give actual consent; (2) his prosecutions for driving under the influence and aggravated involuntary manslaughter violated double jeopardy prohibitions; and (3) even if the convictions did not impose multiple punishments for the same offense, contrary to double jeopardy prohibitions, the evidence was insufficient to support his conviction for aggravated involuntary manslaughter because it failed to prove both causation and criminal negligence. [DUI and Involuntary Manslaughter are very serious criminal crimes in Virginia.]
First, we hold the taking and testing of appellant's blood while he was incoherent or unconscious did not constitute an unreasonable search in violation of the Fourth Amendment because the blood was obtained in a manner that substantially complied with Virginia's implied consent law. Thus, admission of the test result was not erroneous. Second, we hold appellant's convictions for both DUI and aggravated involuntary manslaughter did not violate double jeopardy principles because the convictions were obtained in a single proceeding and the legislature intended to authorize the imposition of multiple punishments in these circumstances. Finally, we hold the evidence was sufficient to establish the requisite causal connection between appellant's intoxication and the victim's death and to prove appellant's behavior constituted criminal negligence. Thus, we affirm appellant's convictions. [ Question about Double Jeopardy, ask a Virginia Court Lawyer.]
**558 I.
BACKGROUND
Shortly after 8:00 p.m. on Sunday, August 13, 2000, appellant lost control of the vehicle he was driving and crashed into a pickup truck traveling in the opposite direction. Appellant's passenger, Lisa Wright, died from injuries sustained in the accident. [ A VA Court Lawyer can assist you with a case regarding DUI and Involuntary Manslaughter.]
Appellant had been drinking for several hours prior to the accident. He estimated drinking eight to eleven beers between 4:00 and 8:00 p.m. but admitted he “didn't count” how many beers he drank and “it could have been more.” Between*379 about 6:00 and 8:00 p.m., appellant drank at Erma's bar. Around 8:00 p.m., appellant and Lisa Wright left Erma's bound for an establishment called Rob's. Appellant admitted “stumbl[ing]” as they left. They departed in appellant's car with appellant at the wheel, even though appellant knew he was legally prohibited from driving because he had been adjudicated a habitual offender and knew it was not safe for him to drive because he had been drinking. Appellant had experienced no mechanical problems with his vehicle prior to the accident. [ A Richmond VA Attorney can also assist you with cases around the state.]
The accident occurred on a four-lane, divided road with additional exit lanes or ramps bordering both the north and southbound lanes. Immediately prior to the accident, appellant's vehicle had “just come off the ... ramp” and was traveling north in the right through lane at a speed of at least thirty-five to forty miles per hour. Appellant's vehicle came in contact with the right curb and then veered left across the second northbound lane, across the grassy median, and across the left southbound lane into the right southbound lane, where it collided with a pickup truck driven by Louis Durham. Appellant's car was “coming very quickly” and was airborne, and the impact pushed Durham's pickup into the right exit lane. Appellant's car left an arc of “tire smudges” spanning a distance of 218 feet from the right curb in the northbound lanes to the right curb of the southbound access lane. [ Virginia Court Lawyers can also assist you with a case regarding Reckless Driving.]
Immediately after the accident, appellant, who was pinned in the driver's seat, still had “a beer can clutched to his chest,” and numerous beer cans littered the floor of the car and the ground outside appellant's door. Although appellant appeared to be “passed out,” witness Annette Jeter said she “could hear a loud snoring sound” coming from him. She agreed that appellant had facial lacerations and could have had facial fractures, but she testified that, based on her fourteen years of experience as a nurse, she concluded that he was not unconscious because “normally if you are unconscious you don't have a loud snoring; that reflex is basically silent and so you don't really hear a loud sound.”
*380 When Police Officer Bonnie Oaks responded to the scene, appellant looked unconscious, but he was “gurgling something” indiscernible and was “incoherent.” Oaks watched as emergency personnel removed appellant's unresponsive passenger and then cut appellant from the vehicle. Oaks had observed the beer can in appellant's hand and the cans in his car and on the ground. When Oaks leaned over appellant after he had been placed on a gurney, she “could smell the strong odor of alcohol coming from his person.” Oaks then placed appellant under arrest and stayed with appellant while he was transported to the hospital until his blood was drawn for alcohol testing pursuant to the implied consent law.
Oaks tried to instruct appellant on the implied consent law while en route to the hospital, but he was incoherent. Upon their arrival at the hospital at 9:10 p.m., a registered nurse inserted an angiocath and drew several vials of appellant's blood for treatment purposes. Officer Oaks then requested a “court certified blood tech” to draw appellant's blood for testing pursuant to the implied consent law. Technician Steve Parrish arrived at about 9:15 or 9:20 p.m. and withdrew two vials of blood through the same catheter the hospital's nurse had used. Appellant remained incoherent, but he “curs[ed]” and was “somewhat combative” while his blood was being drawn. The evidence established that no fluids or other substances were administered to appellant before his blood was drawn and that only approved solutions not containing any alcohol were used to clean the site on his arm where the catheter was inserted. [ A Richmond VA Attorney can help you file your appeal.]
**559 Parrish gave the vials of blood to Officer Oaks, who mailed one of the vials to the lab for testing and kept the other in the property vault in case appellant wished to have it tested by an independent lab. On the counter beside appellant in the hospital treatment room, next to appellant's wallet and other possessions, Oaks left an information sheet indicating that the second blood sample would be retained by police for seventy-two hours and that appellant had the right to have the sample tested by an independent lab. Detective Matthew Carter then went to appellant's home, where he told appellant's wife about *381 appellant's right to have an independent lab test the second blood sample, and he left her a second copy of the sheet containing that same information.
Laboratory test results admitted into evidence indicated that appellant had a blood alcohol concentration (BAC) of 0.29%. [ The adult BAC legal limit in Virginia is 0.08.]
At trial, appellant testified in his own defense, claiming for the first time that he thought passenger Lisa Wright had taken his wallet as they bumped into each other while leaving the bar and that she had removed the money and then pretended to have found the empty wallet on the seat of his car once they got in. He said that he confronted her about the missing money while they were driving to Rob's, that she “grabbed his wrist” and “arm ... and jerked [him],” and that he did not remember anything after that until he saw his wife in the emergency room.
Appellant argued at trial that the BAC test results were inadmissible. The trial court ruled the BAC results were admissible as the product of a consensual search because the officer's actions substantially complied with the implied consent law. In the alternative, it held the nonconsensual, warrantless seizure of appellant's blood was reasonable under the Fourth Amendment because the police had probable cause to arrest and reasonably feared loss of evidence and because the blood was taken in a reasonable manner.
Appellant also argued that his conviction for both DUI and aggravated involuntary manslaughter arising out of the same act of driving under the influence would violate double jeopardy prohibitions. The trial court implicitly denied the claim when it convicted appellant of both offenses.
Finally, appellant challenged the sufficiency of the evidence to prove that his intoxication caused the accident and that his behavior constituted criminal negligence. In convicting appellant of DUI and aggravated involuntary manslaughter, the trial court made the following findings:
[T]he elements of [the] offense have been proven by your conduct prior to your operation of the motor vehicle in the *382 alcohol which you consumed prior to getting behind the wheel; the fact that you didn't have a license and the actions which you took while driving immediately prior to this accident. And that ... show[s] a total wilful disregard of human life ... by your wilful, wanton conduct in driving. [ Do you have questions about something regarding a Criminal Case in Virginia, visit a Virginia Court Lawyers Blog.]
Showing posts with label Motor Vehicle. Show all posts
Showing posts with label Motor Vehicle. Show all posts
Tuesday, April 14, 2009
Monday, April 13, 2009
Man Convicted on Involuntary Manslaughter and Reckless Driving.
Convicted by jury of involuntary manslaughter and reckless driving, Ismail Takow appeals from his motion to set aside the verdict. He asserts the trial court deprived him of adequate interpreter services and erred in concluding that he understood the process of his trial, in violation of his due process rights. We affirm.
On May 19, 2003, appellant, a native of
A.
TRIAL
Appellant's trial was continued three times before proceeding on April 26, 2004. None of the continuance orders found in the record reflect that the case was continued so appellant could retain an interpreter.
On day one of the four-day trial, the trial court attempted to determine whether or not appellant spoke English well enough to understand the trial process. During an exchange with both appellant and his counsel, the trial judge ascertained the following: 1) appellant has resided in the United States since 1997; 2) he knew English well enough to obtain and hold a driver's license; 3) he followed directions given by his employer which are written in English; 4) he conversed with passengers in English; and 5) he accepted and made change in U.S. currency. Appellant himself answered the judge's questions pertaining to the last three points. Counsel responded that the language problem centered more on appellant speaking, rather than appellant's understanding of English.
Thereafter, the trial court asked if anyone present in the courtroom, which at the time contained many individuals of Somali descent, “could help [the defendant] understand what's going on.”Mohamed Ali Hassan responded that appellant was a friend of his, and he would help him throughout the trial. The judge instructed him to come forward, take a seat, and “promise to do a good job.”Hassan told the judge that he had been in the
Later that same day, appellant's counsel expressed concern that Hassan was paraphrasing and needed to translate verbatim. The trial court asked Hassan, “To the extent that you can, would you do that? Can you do that for him?”Hassan responded, “Yes, that's fine. I don't know nothing about technical likeness translating.”The next day, appellant's counsel informed the trial court that he had spoken with Hassan to make sure that future translations would be verbatim. Counsel admitted that Hassan spoke “both languages [ ] quite well.”
*2 The following recounts the witnesses called by the Commonwealth during day one of the trial and a brief synopsis of their testimony: 1) Mary Bielefed testified about her close relationship with Albert Davis, her visit to the hospital on the day of the accident, and Davis' death eleven days later; 2) Darren Smith explained the closed-circuit television system which captured the accident; 3) Christopher McKay testified as an eyewitness to the accident; and 4) Avery Kent, also an eyewitness, testified as to her observations.FN1At no time during the testimony of these witnesses did appellant ask for clarification or express that he did not understand the testimony, nor did counsel express any such concern.
FN1.FN1. Also on day one, the Commonwealth introduced into evidence both still photographs of the accident scene and a CCTV video depicting the accident. [ A Richmond VA Lawyer can assist you with Motor Vehicle cases around the metro area.]
Finally, Detective Doug Johnson of the Arlington Police Department appeared as a witness on day one of trial. He testified that while working off-duty for a security company, he witnessed the collision between appellant's vehicle and
Q: Did you notice that he had any trouble speaking English?
A: That was a situation we broached right from the beginning, and I tried to explain to him that if we came to that road where we couldn't understand each other that we'd try to make other arrangements, and he continued to speak English with me the entire time I spoke to him.
Q: Kind of, broken English?
A: I wouldn't necessarily say broken, if there was something that was not necessarily said, in context I just rephrased it so it was understandable.
Q: Okay.
A: But the entire interview was in English.
On day three of trial, the Commonwealth presented stipulations of fact “upon which the Commonwealth and the Defendant have agreed.”FN2The stipulation of facts included references to photos of the accident scene, a surveillance video that by happenstance had recorded the accident, and the distance between impact and the stopping point of the vehicle. It also recited that appellant “would get his fares through dispatch from the Red Top Cab Company and from roaming the roads.”That stipulation concluded with the following:
FN2.FN2. Day two consisted of convening the jury for a view of the accident scene.
My name is Ismail Takow, and I am the defendant in this case. On May 19, 2003, I was driving a Yellow Cab taxi on
I have read this Stipulation, and my attorney has read this Stipulation to me. I speak and understand English, and I understand the factual statement set out above and agree to the accuracy of those facts.
(Emphasis added). Appellant signed the above statement.
*3 Appellant thereafter presented a motion to strike. At no point during his argument did appellant's counsel mention the interpreter or appellant's failure to understand the proceedings. After denying Takow's motion to strike, and as appellant prepared to testify, the trial judge stated, “Mr. Takow, let me know if anything that I say is not clear to you or you do not understand.”Appellant responded, through Hassan, “I can tell you, sir.”
Appellant testified at length in his own defense. Hassan translated this testimony from Somali into English.FN3During this testimony, the Commonwealth objected to the relevance of several background questions. At a bench conference outside the hearing of the jury, appellant's counsel argued that he should be able to “ask how long he's been speaking English, how long he's been in this country.”The trial court responded,
FN3.FN3. As previously noted, appellant advised the trial court that he understood English but had some difficulty expressing himself in English. Takow testified in Somali through the interpreter and obviously heard the immediate interpretation of his testimony into English. At no time during his testimony did appellant ever suggest or claim that the English translation of his testimony was inaccurate or misleading, nor did he ever offer any corrections to the same.
Well, I don't see any problem-well, okay, with that. But that's going to open up the Commonwealth to go into matters that cut the other way. I mean, he did take a driver's test. It was in English. He's spoken in English. He communicated with people in English.
He works in an area that requires to be familiar with highway signs, English. He translates-I mean, he communicates in English. So, all that's opened up, if you want to go there.
Thereafter, counsel asked appellant “how good is your command of English?”Appellant responded, through Hassan, “My understanding is much better than responding. I have difficulty of [sic] responding.”
Marvin Carroll, a safety investigator for Transportation General, Inc., appeared as a rebuttal witness and testified about an interview he conducted in English with appellant after the accident. The Commonwealth asked Carroll if he asked appellant “if he had any explanation at all as to why he did not see this man in the intersection.”Carroll responded that appellant told him that “he had no explanation for that.”Again, at the conclusion of Carroll's testimony, neither appellant nor counsel maintained that his testimony was not understood.
The jury convicted appellant of involuntary manslaughter and reckless driving. The jury sentenced him to three years imprisonment on the first charge and twelve months with a $2,500 fine on the second charge.FN4
FN4.FN4. At no time during the trial did appellant's trial counsel claim that his client was deprived of constitutional due process rights because of language differences; that is, while there may have been difficulties, those difficulties did not rise to constitutional dimension.
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