# FILED
December 21, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON OCTOBER 1998 SESSION

STATE OF TENN ESSEE, ) ) C.C.A. NO. 02C 01-9710-CC-00416 Appellee, ) ) FAYETTE COUNTY VS. ) ) HON. JON KERRY BLACKWOOD, STACY D. WILLIFORD, ) JUDGE ) Appellant. ) (Aggravated Vehicul ar Homicide, Vehicular Assault, Dri

ving Under the Influence, Driving on R evoked License, and Leaving the Sc ene of an Accident)
FOR THE APPE LLANT: FOR THE APPELLEE:
ANDREW S. JOHN STON JOHN KNOX WALKUP 108 East Court Square Attorney General & Repor ter Somerville, TN 38068 PET ER M . CO UGH LAN Asst. Attorney General John Sevier Bldg. 425 Fifth Ave., North Nashville, TN 37243-0493 ELIZABETH T. RICE District Attorney General 302 Market St. Somerville, TN 38068

OPINION FILED:____________________

AFFIRMED JOHN H. PEAY, Judge2 

### O P I N I O N
The defendant was convicted by a jury of aggrav

ated vehicular homicide, vehicular assault, driving under

the influence, driving

on a revoked license, and l eaving the scene of an accident. Follow ing a sentencing hearin g, the defenda nt received an effectiv e se ntence of twenty years . The defendant now appeals, raisi ng the following issues f or review: I. Whether the trial court erred in deny ing the defendant’s motion to suppress statements on the theory the defendant was in custody but was not read his Miranda

warnings? II. Whether the def endant’s due process rights were violated by T.C.A. § 55-10-401, which allows an inference that previous DUI offenders are intoxicated if their blood alcohol content is .08% or higher, w

hereas it may be inferred that first-tim e offenders are intoxicated only when their blood alcohol content is .10% or h igher? III. Whether the trial co urt erred in charging the jur y that they could infer intoxication by a .08% or higher blood alcohol content, since this instruction reveals to t he jury that the defendant has been pr eviously convi cted of DUI? IV. Whether the evidence is sufficient to sustai n the defendant’s convi ct ions for aggravated vehi cular homicide, vehicul ar assault, and leaving the scene of an acci dent? Finding no reversible error, we affirm the trial court’s judgments.

Around 6:50 p. m. on October 10, 1996, Annette Pittman and her young daughter were traveling

between forty-five and fifty miles per hour on Bateman Road in F ayette Coun ty, headed north toward Highway 57. As M s. Pittman crested a hill,her young daughter ’s yell alerted her to a motorbike, without any lighting, driv

ing approximately fifteen miles per hour weav ing in the middle of

the lane . Two boys in their earlyteens were riding the motorbike, but neithe r looked b ack when Ms. Pittman’s headlightsilluminated them, even thoug h her car came within five to s ix feet of hitting them. She followed the m at a dista nce, and when she came to a safe place to pass1 Robbins fir st testi fied they

were travel ing approxi mately 20 to 30 m.p.h. at t he time of the colli sion, but

then he agreed t hat they were travel ing approxi mately the sa me speed on Highway 57 as they had been o n Bateman Road, which anothe r witness t estifi ed was approximately 15 m.p.h. 3 them, she did.

Approximately fifteen minutes later, at around 7:05 p. m., the defendantwas driving his Camaro westbound on H ighway 57. The speed the defendant was travel ing is u nknown . The night was dark and clear, there were no s treet lights but nothing to obstruct a driver’s vi ew, and the pavement was dry. The de fendant str uck two boys, Ronald Phillip Webb a nd Bran don Robbins, who were riding a motorbike tr

aveling between fifteen to thirty miles per hour 1 westbound approximately one to three feet inside the pavement’s white li ne. The motorbike became wedged underneath the defendant’s
car and the boys were thr ow n fif teen to twenty feet from the road.The collision left no skid marks on the road.

The defendant continued driving.A man driving eastbound on H ighway 57 passed the defendant’s Camaro after the collision, noticed

the motorbike lodged under the Cama ro’s body, and smelled antifreeze and burni ng rubber. According to the man, the defendant was traveling at a “normal highway

speed, maybe faster” and without any headlights. The record is silent as t o whether the defendant’s headlig hts were on at the time of the collision. It

is also unk

nown how fa

st the defendant was trav eling at th e time of the collision.

The defendant drove to his mother’s house, which w as one mile from the
scene of the collision. Because the motorbike remained lodged under the Camaro, the motorbike’s tire left a mark as it dragged on the road from the p o int of impact to the defendant’s mother’s house. At his mother’s house, at 7:14 p.m., the defendant called 911. He returned to the scene by 7:55 p.m. driven by a friend in another car; he left his4

Camaro, with the dirt b ike lodged still under neath of it, at his mother’s house.
Trooper Perkins of the Tennessee Highway

Patrol arrived on the scene at 7:35 p.m., appr oximately half an hour after the collision occurred. Trooper Perkins did not see the defenda nt at the scen e until appr oximately

7:50 or 7:55 p .m. The defendant
was very emotional, appeared to be upset, and began to cry . He told Trooper Perkins that he was the driver of the car that hit the motorbike. He said he did not see anything, but he felt and heard a “thug” and decided to continue driving to his mother’s house. He admitted he had had a couple of beers earlier that day. A records search rev ealed that the defendant’s driver lic ense had been suspended.
Upon request, the defendant submitted to a blood test. The paramedic who administered the blood test observed the defendant’s demeanor as very scared, afraid, and nervous. The defendant did not appear to the paramedic to be i ntoxicated, but the paramedic admitted that there have been previous times when he mistakenly thought a patientwas not drunk. At leas t one police officer at the scene s melled alcohol on the defendant’s person and believed the defendant “was obviously under the influence.” The defendant’s blood test later rev ealed a blood alcohol content of .16%.

Web b, who was fifteen years old at the time of the collisio n, died fro m multiple injuriessustained in the collision. His tox

icology screen w

as negative for alcohol
or drug use. Robbins, th irteen yea rs old at th e time of the collision, was s everely injured in the collis ion. Robb ins, who di d not have a license to operate the motorbike on public roads, was operating the motorbike at the time of the collision; Webb was sitti ng behind him. At trial, Robbins admitt ed they had driven north on Bateman Road toward Highway 57, and then were headed wes tbound on Highway 57 w hen the collision occurr ed.2 The chi ef of t he local pol ice testi fied that he had pr

evio usly checked t he motorb ike’ s brake light s and discovered they were not working, although he admitted he did not know whether that problem had been repair

ed prior t

o the coll ision. 5 A local police officer had w arned the b oys one to two months prior to the collision about the dangerous manner in which they were riding the motorbike because they were causing cars to weave in order to avoid them. The loca l pol ice had also previouslywarned the boys not to ride their bike on the city stree ts because the bike was not equipped with proper turn signals, a wi ndshield, or a license pl ate and the brake lights
were not working. 2 Robbins admitted that the reason they wer e traveling so slow

ly that evening was because they were hav ing mechanical problems w ith the motorbike, but he insisted that th e motorbike’s h eadlight and ta illight were working.

At trial, there was ev

idence suggesting

the boys m ight have used marijuana prior to the collision. A

seventeen-year-old friend of Robbins testified that Robbins had told her he and Webb had been smoking marijuana pr ior to the collision

and was “high” at the time of the co llision. S he admit ted she h ad known this information for nine months and could not explain why s he decided three days prio r to trial to disclos e the information to the defense attorney but not the state attorne y or a n y law enforcement officer. She also admi tted she knew the defendant, but she insisted she did not know him well. Robbins denied using any drugs or alcohol that

afternoon, and he denied telling anyone he had used marijuana and was afraid his parents w ould find out. Robbins also deni ed that he had rolling papers on his person at the ti me o f the collision, but a local police officer found rolling papers near hi m after the collision. Robbi ns was not subjected toa drug or alcohol test because Trooper Perkins was not aware rolling papers were found at the collision scene.

First, the defendant argues that the tri al court e rre d in failing to suppress the statements he made to Trooper Perkins at the collision scen e because he was in6

custody but was not advised

of his Mirandarights. The defendant also contends that the results of his blo od alcoh ol test sh ould have been suppressed since the only grounds for administering the test under T.C.A. § 55-10-40 6(a)(1) was the defendant’s statement to Trooper Perkins.

Mirandav. Arizona

bars th e admiss ion of a n y statement s elicited from a defendant through police-initi ated custodial inte rr ogation unless the defendant, pri or to making the statement, was warned of certain rights and knowingly waived those rights. Mirandav. Arizona , 384 U.S. 436 (196 6); see, e.g. , Edwards v. Ariz ona , 451 U.S. 477 (1981); State v. Huddleston , 924 S. W.2d 666, 669 (Tenn. 1996); State v. Bates , 804 S.W.2d 868 (Tenn. 1991). “Custodial interrogation” is defined as “questioning ini tiated bylaw enforcement officers after a p erson has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Miranda , 384 U.S. at 444. In other words, Miranda

warnings are required when a suspect has been formally arrested
or when his or

her freedom ofmovement has been restrained to the degree associated with a formal arrest. California v. Beheler , 463 U.S. 1121 (1983); State v. Cooper , 912 S.W.2d 756 (Tenn . Crim. App. 1995).

In assessin g whether a n individu al is “in cu stody, ” the to tality of the circumstances

must be examined to determine w hether a rea sonable person would consider his or her freedom of movement restrained to the deg ree associated with formal arrest. Sta te v. Anderson , 937 S.W.2d 851 (Te nn. 1996). Factors relevant to this determinatio n include the f ollowing: the time and location of the interrogati on; the duration and character of the questioning; the officer’s ton e of vo ice and general demeanor; the suspect’s method of transportation to the place of q uestioning; the number of police off icers present; any limitation on movement or other form of restrain t imposed on the suspect during the interroga tion; any interactions

between the officer and the suspect, includi ng the words spoken by the officer

to the suspect, and the suspect’s verbal or nonverbal responses;th e extentto which the suspect is confronted with the law enforce ment officer’s7 suspicionsof guilt or evidence of g uilt; and finally, the extent to w hich the suspect is made aware that he or s he is free to refrai n from answ ering questions or to end the interview at will. Id. at 855. Contrary to the defendant’s suggestion, it is immaterial that “the tr ooper knew that he was dea li ng with an indivi dual that he would likel y charge with a crime” since a defendant’s Fifth Amendment rights are no longer trigger ed by the defendant being the investigation’s focus. See, e.g. , Stansbury v. California , 511 U.S. 318 (1994); see also Anderson , 937 S.W.2d at 854; Cooper , 912 S.W.2d at 766.

Here, Tro oper P erkins arrived at the scene approximately o ne-half hour afterthe collision occurre d. Approximately tw

enty minutes later, the

defendant voluntarily returned to the sce ne, appr oached Trooper Perkins, and dis closed to him he was the driver of the car involved in

the collision. Trooper Perkins asked the defendant to wait a few minutes by his patrol car while he finished identify ing the victims and notifying their parents. The defendant was not han dcuffed , placed in the back of the patrol car, escorted or guarded by another police officer, or otherwise restrained. Approximately fifteen minutes later, Trooper Perki ns approached the defendant and began questioning him a bout what hap pened. The record does not indicat e that any officer other than Trooper Perkins was inv

olved in the questioni ng of the defendant, nor does it indicate that either party became belliger

ent or confrontational during the questioning. The defendant stated he did notsee anything, but heard a “thug” noise. When asked, he also stated he had been drinking alcohol. Trooper Perkins asked him one time to submit toa blood test, telling him he was n ot required to consent, but the defendant agreed to the test. The defendant was not advised of his Miranda rights. At no time, how

ever, was the

defendant told he must re main at t he scene , answe r question s, or submit to a blood test. In fact, according to the de

fe ndan t’s testimony at the suppr ession hearing, the defendant had returned to the scene voluntaril y to give his ac

count of th e i ncident; he testified he had
no problem waiting unti l Trooper Perkins could q uestion him. After the questio ning8

concluded, the defendant went home.

Considering the totality of these circumstances, the defenda nt was not in custody at the time

he answered Trooper Perkin s’ questions. Because Miranda warnings
are c onstitutionally req uired only where a d efendant is subjected to police- initiated custodial interr

ogatio n, there

was no basis t

o suppre ss the de

fe nd ant’s statements to Trooper Perkins. See Stansbury , 511 U.S. at 318; Anderson , 937 S.W.2d at 854.

The defendant also contends that his bloo d test results should hav e been suppressed. Th e d efendant relies upon T.C.A. § 55-10- 406 for the proposition that a police officer must have “reasonable g rounds to believe” that a defendant was driving under the influence of an int oxicant befor e requesting a blood test . According to the defendant, the only “reasonable g rounds” Trooper Perkins had was his statement he had been drinkin g beer earlier that day , which he contends wa s obtained in violation of th e Fifth Amendment and thus cannot serve as a proper basi s for reque sting a blood test under§ 55-10-406. Even assuming the defendant’s interpretation i s correct, hi s argumentis moot si nce we have concluded that the defendant’s Fifth Amendment rights were not violated and the evidence shows the defendant consented to the blood rest.

Next, the defendant challenges T.C.A. § 55-10-408(b), clai ming that a jury instruction pursuant

to § 55-10-408(b) viol ated his constitutional ri ght to due process of law. DUI is proven by a showi ng that aperson was in physical control of a motor vehicle
on a public road or any premises frequented by the public while “(1) Under the influence of any intoxicant, marij uana, narcotic drug, or d rug producing stimulating effects on the central nervoussystem; or (2) The alcohol concentration in such person’s blood or br eath is ten-hundredths of

one percent (.10%) or more.” T.C.A. § 55-10-401(a)(1) -(2) (Supp. 1996). Generally, for the purpos e of proving intoxication under § 55-10-401(a)(1), it may9

be inferred that a defendant’s abilit yto drive was sufficiently impaired if his or her bloo d alcohol content was .10% or higher. T.C.A. § 55-10-408(a) (Su pp. 1996). If the defendant has atleas t one previous DUI conv iction, however, a .08% blood alcohol content is sufficient to infer intox ication and impaired ability to drive, in violation of § 55- 10-401(a)(1). T.C.A. § 55-10-408(b) (Supp. 1996).

In this case, the trial court instr ucted the jury, pursuant to § 55-10-408(b),
as follows: “Evide nce from the test that there was at the time alleged eight -hundredths of one percent or .08 or more by weight of alcohol in th e defendant’s blood creates an inference that defendant was under the influence of such intoxicant, and thathis ability to drive was impair

ed.” The defendant argues tha t this inst ruction violated his constitutional right to due process and that § 55-10-408 crea tes disparate treatment of previouslyconvicted DUI offenders, whose intoxication may be inferre d a t .08%, as
c ompared to first-time DUI offenders, w hose intoxication may be inferred only afte r reaching .10%. The defend ant’s challenge to the constitutionality of § 55-10-408(b) must fail, however, as the defendant lacks standing. Because the defendant’s blood test result
was a .16%, the jury woul d ha ve bee n entitled to infer the defendant was intoxicated under the higher

.10% standard of § 55-10-408(a), regardless of the exis tence of a lower .08% standard for previous DU I offenders under § 55-10-408(b). I n ot her wo rds, even if the trial court h ad not instructed the jury on the .08% inference pursuant to § 55-10- 408(b) and even if there were no disparity between the inferences for first-time DUI offenders and previous DUI offenders, the jury would still have been entitled to infer that the defendant was intoxicated because his blood alcohol conten t exce eded th e higher .10% level. Because it canno t be said that the . 08 % inference under § 55-10-408(b) operated to deprive thedefendant of his rights, the defendant lacks standing to challenge its constitutionality

. See State v. Purkey , 689 S.W.2d 196 (Te nn. Crim. App. 1984).10 Th e defendant also argues that the tr ial court’s instruction on the . 08 % inference constituted rev ersible error because it “revealed to a knowledgeable juror(s) that the [defendant] had been convicted of prior D UI’s [sic] and . . . put said jur or(s) on notice of evide nce that w ould otherwise be inadmis sible at trial.” The jur

y instruction pursuantto § 55-10-408(b) advised the ju ry it c ould infer intoxication and that the defendant’s ability to driv e was impairedfrom evidence of a blood alcohol content of .08%
or higher. As far as

the jury was instructed, the onlypurpose of the .08% standard was to infer intoxication and i mpaired ability to dri ve and nothing else. The jur y was not instructed that the .08% standard applies only to defendants previously convicted of DUI
or that the defendant in this case had been pre viously convicted of

DUI. The defendant does not identify any “knowledgeable jurors” or even contend that any of the jurors in this case were “knowl edgeable.”

In the absence of evidence to the cont rary, a jury is presumed to follow the instructions

given to it. State v. Blackmon , 701 S.W.2d 228, 233 (Tenn. Crim. App. 1985). Just as a jury may be presente d with evidence of a defendant’s prior bad acts and be instructed that they are to consider that information only as it relates to motiv

e or intent
or some oth er admissible purpose, w e must assume that the jury i n this case used the .08% st andard for nothing more than to infer the defendant’s intoxication and impaired ability to drive, rather than t o specul ate whether the defendant might hav e been previouslyconvicted of DUI and allo wthat speculation to affect their verdict in this case. Thus, we must conclude that the trial court did not err in instructing the j ury pursuant to § 55-10-408(b), a valid

statute, as it is requ ired to do. Even if error occurred, it would be harmless because the jury could have inferred that the defendant, who had a .16% blood alcohol content, was intoxi cated even under the .10% standard for first-time offenders in § 55-10-408(a). Tenn. R. Cr im. P. 52(a)(only err

ors affec ting the re sult of trial on the merits may constitute reversible error).11 Finally, the defendant challenges the sufficiency of the evidence, arguing it is insufficient to sustain hi s convictions for agg ravated vehicular ho micide, vehicular assault, and leaving the scene of an accident.

As it pertains to the charg es in this case, aggravated vehicular homicide is the reckless killing

of another as the proximate result o f the driver’s intoxication while operating a vehicle. T.C.A. § 39-13- 213(a)(2). Similarly, vehicular assault occurs when
a person causes serious bodi ly injury to another as the proxi mate result of his or her intoxication while operating a vehicle.T.C.A. § 39-13-106(a). The defendant contends that due to the bo ys’ actions in operati ng the motorbike on the road under dangerous conditionswhen they had previ ously been warned not to do so, the death and theinjury that occurred in the collis ion were not a proximate r esult of his intoxicatio n. Rather, the defendant argues that most of the factors that caused the collision w ere “brought to bear bythe victims themselv es.” As the State points out, however, Ms. Pittm an had encount ered the boys on the street only minutes before the defendant struck the boys. The circumstances und er which Ms. Pittman encountered the boy s were similar to the circumstances

under which the defendant encounter ed the boy s, with one notable exception: Ms. Pittman was not drunk, while the defendant had a blood alcohol content of .16%. Because Ms. Pittman, who was not drinking, was able to avoid a collision while the defendant, who was drinking, was not, the evidence was sufficient for the jury to conclude that

the defendant’s intoxication was the proximate cause of the colli sion that killed Webb and injured Robbins.

The defendant also contends that regar dless of the .16% result f rom t he blood test taken approximately one hour

after the collision, there w as no proof he “had consumed any

alcohol or had any alcohol in his blood at the

time of the subject accident.” To the contrary, the defendant admitt ed to Trooper Perkins that he had cons u med two12

beers prior to the colli sion. Moreover, gi ven that there was no ev idence that the defendant consumed alcohol after the collision but before th e blood test, the .16% blood alcohol content, coupled with the d efendant’s admission of drinking prior to the collisi on, was sufficient proof from whi ch t he jury could infer that the defendant was under the influence of alcohol at the time the co llision occurred.

With regard to the defendant’s challenge to his convictio n for le aving the
scene of the accident under T.C.A. § 55-10-101, the defendant contends that because he left the scene only to call 911 and then returned “forthwith,” his actions did not violate § 55-10-101. The record show s otherwise.

Section 55-10-101(a) provides that drivers of vehic

les involved in accidents
r esulting in injury or death “shall immediately stop such vehicle at the scene of such accidentor as close thereto as poss ible, but shall then forthwith ret urn to and in every eventshall remain at the scene of th e accident until the driv er has fulfilled the requirements

of § 55-10-103.” Section 55-10-103(a) requires drivers t o pro vide identifying information to other driver s involved in the

collision and “render to any person injured in such accident reasonable assistance.” T.C.A. § 55-10-10 3(a).

Here, a driver who pass ed the defendant on Highway 57 shortly after t he accidentsaw the motorbike lodged underneath the defenda nt’s car a nd smelled antifre eze a nd bur ning rubber, which was apparently caused by the motorbike as it dragged along the road. When the defendant reached his mother’ s house, which was one mile away from the scene of the collision, he called 911. When he returned to the
scene for ty-five minutes later, he told Trooper Perkins he “ felt and heard a thug,” but decided to continue traveling without stopping to investigate. Under the circumstances, however, he should have stopped immediately at the crime scene to evaluate whether13

the boys required medical treatment. See §§ 55-10-101(a), 55-10-103(a). Moreover, by taking a forty-five minute hiatus from the scene of the collision, the defendant di d not return “forthwith,”

as § 55-10-101(a) requires . Thus, because the evidence r evealed the defendant did not comply with the statutory requirements, the evidence was sufficient t o prove the defendant left the scene of an acc ident, in violation of § 55- 10-101.
Finding no merit to the defendant’s arguments, we affirm the trial court’s judgments.

_______________________________ JOHN H. PEAY, Judge
CONCUR:

______________________________ DAVID G. HAYES, Jud ge

______________________________ L. T. LAFFERTY, Senior Judge