# FILED January 20, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT JACKSON MAY SESSION, 1997
STATE OF TENNESSEE, ) C.C.A.NO. 02C01-9612-CC-00485 ) Appellee, ) ) BENTON COUNTY ) V. ) ) HON.JULI AN P. GUINN,JUDGE WILLIA M ROY HOPPER, ) ) Appe llant. ) (VEHICU LAR HO MICID E)

FOR THE APPELLANT : FOR THE APPELLEE : D.D. MADDOX JOHN KNOX WALKUP MADDOX, MADDOX & MA DDOX Attorney General& Reporter 105 East Main Stre et P.O. Box 430 KENNETH W. RUCKER Huntingdon, TN 38344 Assistant Attorney General 2nd Floor, Cordel l Hull Bui lding 425 Fifth Avenue North Nashvill e, TN 37243 G. ROBERT RA DFORD Distri ct Attorney General TODD ALAN ROSE Assistant Distri ct Attorney General 111 Church Street P.O. Box 686 Huntingdon, TN 38344 OPINION FILED ________________________ AFFIRMED THOMAS T. WOODALL, J UDGE-2- 

# OPINION

The Defendan t, W illiam R oy Ho pper, a ppea ls as of r ight from his con vic tio n of vehicular hom icide following a jury trial in the Circuit Co urt of Benton C ounty. Defendant raises five (5) issues in thi s appeal: ( 1) whether t he trialcourt err ed 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 su ppress t he blood alcohol sample and test resu lts from the sample taken at Vanderbilt

Universi ty MedicalCenter; (3) whetherit was err

or fo r the trialcourt to all ow the prosecution to int roduce evidence of t he te sti ng of a sampl e of b lood drawn at Van derbi lt U n iver sity Medical Center from th e Defend ant without consent and whil e he was unconscious; (4) whether his consti tutionalrights wer e violated by the use of blood samples taken whil e he was unconscious; and (5) whether a comment by the trialcourt concer ni ng the contractualstatus of Smith-Kli en-Beecham Laboratori es with the State of Tennessee was p lain er ror. We affi rm the judgm ent of the tria l court.

On Decem ber 15, 1995, State Trooper John Clem was on dut y 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 blu e Chevrolet Lumi na, driven by the Defen dant, facing so uthbou nd and a grey C hevrolet M onte Carlo, driven by the vi cti m, Nelda Johnson, si tting up o n a guardrailfacing nor theast. Tr

ooper Clem radioed for rescue person nel. He th en ap proached the bl ue car and heard t he Defendant making gurgling noises in his throat, and observed that he was s ti ll-3-

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 subseque ntly discove red the vi ctim in t he back seat and was un able to loc ate a pu lse in the victim ’s neck.

Medical personnel arrived ashort ti me later and conf irmed that the victim was dead. Rick Davi dson, an emergency medicaltechnici an with Camden Gen eral, notic ed a strong smell of alcohol on Defendant. Trooper Clem also noticed a strong odor of alcoholon the Defendant and in hi s car. Trooper Clem looked in Defe ndan t’s vehic le and discovereda partial ly consumed six-pack of beer, an em pty twelve-pack beer box , an oth er t

wel ve- pack

box con tai nin g so me beers, two empty beer cans i n 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 ambul ance took t he De fenda nt to C amd en G enera l Hosp ital. Thereafter, Troop er Clem called the Benton Coun ty Sh eriff’s Offi ce and the Camden Police D epartm ent, and asked them to send o fficers to the h ospital to request a blood sample fr om Defendant because he needed to cont inue hi s investi ga ti on at the acci dent scene. He al so told Lor i Lessenberry , the paramedic, that he needed a bl ood test run on Defenda nt. Dr. T imothy Linder treated Defendant in t he Camden General Hospi tal emerge ncy r oom. He testif ied that he not iced thesmell of al cohol on Defendant while he was intubat ing him. At th e 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. Flo yd ran a c ros s-match of Defenda nt’s blood in order to d etermine the type neede d for a transfusi on. Dr. Linder also requested that anothe r sample be taken f or the purpose of determ ining the D efenda nt’s blood alcohol lev el. Dr. Linder testifi ed-4-

thathe 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 t he SmithKlien-Beecham Laboratori es to be anal yzed for alcohol content be cause 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 Uni versit y Medical Centerbeca use C amd en G enera l did not have the resourc es to treat D efenda nt. Camden General noti fied Vanderbi lt of t he transfer , the Defendant ’s inj uries, and the fact that he smelled str ongly of al cohol. When Defendant arr ived at Vand erbilt, a register ed nurse dre w a blood sample fr om the unconscious Defen dant. Because of Defendant’ s physicalconditi on, he was not asked t o sign a c onsen t form. A m edical tec hnolog ist at Vand erbilt analyz ed the b lood. It s howed that Defendant’s blood alcohollevel was .16. Dr. John Promes wa s called as a witness by the de fense at tri al. Dr. Promes was one of the Def enda nt’s attending physician s at Vanderbilt University MedicalCenter. Duri ng cross-examinat ion, Dr. Promes testif ied that he was a ware th at a blo od sa mple was taken fro m the De fendant for blood alcoholanalysis . Dr. Promes fur ther testif ied that he relied on t hese bloo d alcohol test resul ts in hi s care and treatment

of Defendant. This sample was destr oyed by medical personnel one week la ter.
TrooperClem arrived at Camden General after Defendant had been transported to Vanderbil t. He asked about the blood sample f rom Defendant, and was informed that it “had already gone in wit h his medical r ecords,” so Trooper Clem never recei ved t he sampl e. At thi s point he r equested that

a sample of blood be drawn from the v ictim. This was done and given to Troo per Clem who-5-

sent it to t he TB I cri me lab for anal ysis. The analysis showed no al cohol was presentin the victim’s blood. The analysis by Smith-Kli en-Beecham of the bl ood drawn from Defendantat Camden General showed his bl ood-alcohol level to be .19. The test was done two days a fte r the acci dent, and the sample was d estroyed o ne 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 objecti on made by Defendant’s counsel, t he trialjudge stated in the j ury’s pr esen ce tha t it was his understanding that the State of Tennessee had a co ntract with Smith-Kli en-Beecham La boratories. The Defense made no objection to thi s statement. However, a later witness from Smith-Kl ienBeecham stated to

the jury that he wasnot aware of any such cont ract wit h 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 uncontradic

ted proof in t his record i s that Trooper Clem asked certai n p ersons to reque st me dical per sonnel at Camden General Hospi tal to withdraw a blood sam ple from Defendant for a blood al cohol analys is. However, the medica l technologi st who drew the sample testifi ed that she did so at the request of D r. Linder. Dr. Linder confirmed that in the normal co urs e of his work as an emergency room physician , he frequ ently requ ests blood alcoholanalysis in the treatment

of patie nts. Dr . Linde r did no t recall a nyone askin g him to withdr aw blood at the request of Trooper Cl em. Carol Wells, a nur se in t he emergency room at Vanderbilt

Universi ty MedicalCenter, te stifi ed thatshe drew blood f rom the Defendant duri ng the course of his treat ment at that facility. The purpos e of getting the blood alcohol sample was to know how a pati ent might reac t if ot her-6-

drugs were adm iniste red into his system. She fur

ther test ified t hat if a patient cannot give cons ent to draw blood, t hey do the procedur e anyway in or

der to, if necessa ry, save the pati ent’s l ife. There is no questi on concerning the extensive nature of inj uries to t he Defendant, and t hat the Defendant remai ned unco nscio us forthirteen (13) days af ter being admi tted to Vanderbil t. Dr. Pr omes, the attendingphysici an at Vanderbil t, test ified t hat he was aware th e 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 resu lts f rom the Defendant i n his care and treatme nt of Defe ndant.

Defendant argues on appeal t hat there i s no proof th at the blo od alcohol test results were a ctually used for medicalpurposes eit her at Camden General Hospital or Vand erbilt Unive rsity Medical Ce nter. In fact , it i s undisputed t hat the test results from the blooddrawn at Camden General were not avail able unt il t

wo (2) days after

the blood was dr

awn from Defendan t, dur ing wh ich ti me he had already been tra nsferr

ed to Vanderbilt

Univers ity Med ical Cen ter. Howe ver, in State v. Ridge , 667 S.W.2d 502 (Tenn. Crim. App. 1982) , our Court he ld in a vehicular

homicide case that “

the sample of bl ood drawn pursuant to a medical request was analyzed by h ospital 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 t o request the hospital personnel to draw blood from the Defe ndant fo r a blood alcohol te st, t he rec ord refl ects that this request was neve r com mun icated to the m edica l perso nnel w ho ac tually drew the blood whi ch led to t he test res ults l ater ad mitted in to evide nce in this case. There is nothing in the cas e law wh ich require s proof tha t the test res ults-7-

w ere actually us ed for m edical pu rposes . It is only require d that t he blood b e drawn pursuantto a m edica l request
. Therefore, D efendant’s first two issue s are without m erit.

Defe ndan t’s third i ssue thatthe trial court erred by al lowing the prosecution to intr oduce the test res ults of a blo od sample dr awn f rom Defendant whil e at Vand erbilt Univers ity Med ical Cen ter wi thou t his consent and while he was uncon scious is like wise witho ut merit.

The Defendant argues that since a consen t and releas e form for withdrawalof blood by Vanderbi lt was not signed by t he Defendant or by anyone else on his behalf, t hen the use by the State of the test results as evidence was improper. He states in his bri ef that there i s no lawful right for a hosp i tal or medical personnel to draw blood from any pati ent for medical purposeswhen the patient refuses, o r would ref use, if the patient was a ble to do so. Ho wever, Defendant does not cite an y authority to this Court for that propositi on or how that propositi on would prohibit intr oduction of the evi dence in a cri minal case during the State’s case in c hief. Rid ge clearly holds that

blood drawn pursu ant to a medical request and anal yzed for blood alcoholcontent may be prop erly admit ted into evidence . 667 S.W .2d at 505. While it is correct t hat Tennessee Code Annotated sectio n 55-1 0-406 (b) pro vides th at the b lood a lcoho l test re sults of blood drawn fr

om a person who is unconsci ous orotherwise unab le to consent to t he test i s not admissibl e without t he consent of t he person so tested , tha t statu te onl y applies to situations where a law enforcement officer requests t he 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 wit hdr awal of the blood at-8-

Vande rbilt University Medica l Center. Defen dant may o r may not ha ve a va li d dispute with Van derbilt Un iversity Medical Ce nter. Howeve r, there is nothin g in the law that pr

ohibits introduct ion of theevidence of the blood alcohol te st results from Vand erbilt U niversity Medic al Cen ter sim ply because that insti tution di d not obtain a consent

form from Defendant to withdr

aw the blood.

In his fourt h issue, Defenda nt argues that he i s denied his equalprotecti on 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 evi dence when the person i s unconscious, but under si milar circumstances, blood alcohol test results would not be avai lable againstpersons who are conscious and able to ref use consent to dr aw 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 Defen dant arg ues there are two classes of perso ns involve d in his eq ual prote cti on argume nt: Those w ho are conscious, and those, likehimse lf, who are unconscious when taken to medical facilities for tr

ea tm ent 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 if icat ions set forth by Defendant are subj ect to equalprotecti on analysis . The case law wh ich al lows admis sibility into eviden ce of bloo d alcoho l test results ta ken pursuant to a medical request does not di stingu ish bet ween blood d rawn from conscious and unconscious persons. Simpl y because a consci ous person mightrefuse consent to withdraw bl ood during me dical treatmen t, and therefore prevent t he withdrawal of the blood, does not rise to the creati on of two classi ficati ons which are t reated unequa lly. In his bri ef, 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-9-

be protected against unl awful searche s and seizures, was violated. However, he citesno 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 fi nd these assertion s by De fendan t to be witho ut merit.

In his fi nal issue, Defendant argues that it was pl ain error forthe trial court to make a com ment, while rul ing on an object ion made by defense counsel, that Smith-Kli en-Beecham Laboratori es had a contract with the State of Tennessee to do bloo d alcoho l analysis tes ts.

The Defendant arguesin his br iefthat it was an issue duri ng 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 alcoholtest for use in cri minal 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 t he case. Tenn. R. App. P. 27(a)(7)and (g); Ten n. Ct. Cri m. App. R. 10(b). In any event , our revi ew of the record ref lects t hat whether or not the State had a contract with Smith- Klien-Beecham Laboratories was not a mater ial iss ue. Noobjecti on was m ade b y the D efend ant to th e trial co urt’s comm ent. Neithe r was th is issue in cluded i n Def enda nt’s m otion fo r new tr ial. As such, the issue i s waived on appeal. Tenn. R. App. P. 36() and 3(c). I n any event, we do not feel that t he trial court’s comments, if err or, ri se to the l evel of “plain error” as it does not affect “the substanti al r ights of a n accu sed. ” Tenn . R. Crim. P . 52(b).
Finding no error i n the issuesraisedby Defendan t, weaffirm the judgment of the trial cou rt.-10- ____________________________________ THOMAS T. W OODALL, Judge

CONCUR:

___________________________________ GARY R. WA DE, Judge

___________________________________ JOHN H. PEAY, Judge