FILED

January 20, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

MAY SESSION, 1997

STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9612-CC-00485

)

Appellee, ) 

) BENTON COUNTY

)

V. ) 

) HON. JULIAN P. GUINN, JUDGE

WILLIAM ROY HOPPER, ) 

) 

Appellant. ) (VEHICULAR HOMICIDE) 

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
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OPINION

The Defendant, William Roy Hopper, appeals as of right from his conviction

of vehicular homicide following a jury trial in the Circuit Court of Benton County.

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 sample drawn at Benton County General Hospital; (2) whether the trial court

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

judgment of the trial court. 

On Decem ber 15, 1995, State Trooper John Clem was on duty when he

came upon a two-car crash on U.S. Highway 641 in Cam den, Tennessee, shortly

after 8:00 p.m. At the scene he found a blue Chevrolet Lumina, driven by the

Defendant, facing southbound and a grey Chevrolet Monte Carlo, driven by the

victim, Nelda Johnson, sitting up on a guardrail facing northeast. Trooper Clem

radioed for rescue personnel. He then 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. Trooper Clem went over to the other car but did not see anyone in

the driver’s seat. He subsequently discovered the victim in the back seat and

was unable to locate a pulse 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

General, 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 Defendant’s vehicle and discovered a partially consumed six-pack of

beer, an empty twelve-pack beer box, another twelve-pack box containing some

beers, two empty beer cans in the passenger side floorboard, and a partially full

beer bottle in the driver’s side door compartment. 

The ambulance took the Defendant to Camden General Hospital.

Thereafter, Trooper Clem called the Benton County Sheriff’s Office and the

Camden Police Department, and asked them to send officers to the hospital 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. Timothy 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 request of Dr. Linder, Stephanie Floyd, a medical technologist at

Camden General Hospital, collected blood from the Defendant. Floyd ran a

cross-match of Defendant’s blood in order to determine the type needed for a

transfusion. Dr. Linder also requested that another sample be taken for the

purpose of determining the Defendant’s blood alcohol level. Dr. Linder testified
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that he did not recall being asked by a param edic on behalf of Trooper Clem to

draw blood for a blood alcohol test. Floyd sent that blood sample to the SmithKlien-Beecham Laboratories to be analyzed for alcohol content because Camden

General did not have the equipment to perform this analysis. 

Dr. Linder decided to transfer Defendant to Vanderbilt University Medical

Center because Camden General did not have the resources to treat Defendant.

Camden General notified Vanderbilt of the transfer, the Defendant’s injuries, and

the fact that he smelled strongly of alcohol. When Defendant arrived at

Vanderbilt, a registered nurse drew a blood sample from the unconscious

Defendant. Because of Defendant’s physical condition, he was not asked to sign

a consent form. A medical technologist at Vanderbilt analyzed the blood. 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

Defendant’s attendingphysicians at Vanderbilt University Medical Center. During

cross-examination, Dr. Promes testified that he was aware that a blood sample

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 later. 

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 week later because the lab was not aware that the test results

would be used in litigation. 

While ruling on an objection made by Defendant’s counsel, the trial judge

stated in the jury’s presence that it was his understanding that the State of

Tennessee had a contract with Smith-Klien-Beecham Laboratories. The Defense

made no objection to this statement. However, a later witness from Smith-KlienBeecham stated to the jury that he was not aware of any such contract with the

State of Tennessee. The jury convicted the Defendant of vehicular homicide. 

Defendant’s first two issues can be considered together. The

uncontradicted proof in this record is that Trooper Clem asked certain persons

to request medical personnel at Camden General Hospital to withdraw a blood

sample from Defendant for a blood alcohol analysis. However, the medical

technologist who drew the sample testified that she did so at the request of Dr.

Linder. Dr. Linder confirmed that in the normal course of his work as an

emergency room physician, he frequently requests blood alcohol analysis in the

treatment of patients. Dr. Linder did not recall anyone asking 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 consent to draw blood, they do the procedure anyway in order to, if

necessary, save the patient’s life. There is no question concerning the extensive

nature of injuries to the Defendant, and that the Defendant remained unconscious

for thirteen (13) days after being admitted to Vanderbilt. Dr. Promes, the

attending physician at Vanderbilt, testified that he was aware the blood sample

was taken from the Defendant for blood alcohol analysis, and that he explicitly

relied on the blood alcohol test results from the Defendant in his care and

treatment of Defendant.

Defendant argues on appeal that there is no proof that the blood alcohol

test results were actually used for medical purposes either at Camden General

Hospital or Vanderbilt University Medical Center. 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 results of that analysis were

properly admitted into evidence.” Id. at 505 (emphasis added).

Even though Trooper Clem attempted to request the hospital personnel to

draw blood from the Defendant for a blood alcohol test, the record reflects that

this request was never communicated to the medical personnel who actually

drew the blood which led to the test results later admitted into evidence in this

case. There is nothing in the case law which requires proof that the test results
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were actually used for medical purposes. It is only required that the blood be

drawn pursuant to a medical request. Therefore, Defendant’s first two issues are

without merit. 

Defendant’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

Vanderbilt University Medical Center without his consent and while he was

unconscious is likewise without 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. However,

Defendant does not cite any 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 section 55-10-406(b) provides that the blood alcohol 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 made. Ridge, 667 S.W.2d at 505. It is conceded by Defendant in his

brief that law enforcement officers did not request withdrawal of the blood at
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Vanderbilt University Medical Center. Defendant may or may not have a valid

dispute with Vanderbilt University Medical Center. However, there is nothing in

the law that prohibits introduction of the evidence of the blood alcohol test results

from Vanderbilt University Medical Center simply 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 persons where evidence of blood alcohol 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 (Tenn. 1994) in support

of his argument on this issue. In essence, the Defendant argues there are two

classes of persons involved in his equal protection argument: Those who are

conscious, and those, like himself, who are unconscious when taken to medical

facilities for treatment where blood alcohol tests might be advantageous in

treatment. We do not feel that the purported classifications set forth by

Defendant are subject to equal protection analysis. The case law which allows

admissibility into evidence of blood alcohol test results taken 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 medical treatment, and therefore prevent the withdrawal

of the blood, does not rise to the creation of two classifications which are treated

unequally. In his brief, Defendant also makes a passing argum ent that his rights

to due process, his right to be protected from self-incrimination, and his right to
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be protected against unlawful searches and seizures, was violated. However, he

cites no authority in support of this argum ent, and therefore it is waived. Tenn.

R. App. P. 27(a)(7); Tenn. Ct. Crim. App. R. 10(b). In any event, we find these

assertions by Defendant to be without merit.

In his final issue, Defendant argues that it was plain error for the trial court

to make a comment, while ruling on an objection made by defense counsel, that

Smith-Klien-Beecham Laboratories had a contract with the State of Tennessee

to do blood alcohol analysis tests. 

The Defendant argues in his brief that it was an issue during the jury trial

as to whether or not the Smith-Klien-Beecham Laboratories had a contract with

the State of Tennessee to perform the blood alcohol test for use in criminal

proceedings. However, he does not cite to any portion 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 made by the Defendant to the trial court’s

comm ent. Neither was this issue included in Defendant’s motion for new trial.

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 court.
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____________________________________

THOMAS T. W OODALL, Judge

CONCUR:

___________________________________

GARY R. WADE, Judge

___________________________________

JOHN H. PEAY, Judge