Opinion
Record No. 1280-98-4.
September 28, 1999.
Appeal From The Circuit Court Of Prince William County, Frank A. Hoss, Jr., Judge.
Gregory E. Stambaugh for appellant.
Virginia B. Theisen, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
Present: Judges Benton, Willis and Senior Judge Cole
Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication.
A jury convicted Franklin Eugene Hall of aggravated involuntary manslaughter in violation of Code § 18.2-36.1(B). On this appeal, Hall contends the trial judge erred (1) in allowing testimony concerning the result of a preliminary analysis of his breath for alcohol content, (2) in allowing testimony during the Commonwealth's case-in-chief that Hall was previously convicted of an unrelated offense of driving while intoxicated, (3) in denying his motions to strike the evidence, and (4) in refusing a jury instruction concerning the causation that must be shown between Hall's intoxication and the death of the motorcyclist. Because we conclude that the trial judge erred in refusing the jury instruction, we reverse the conviction and remand the case for a new trial.
I.
The evidence at trial proved that on February 2, 1997, shortly after 8:00 p.m., a pickup truck driven by Franklin Eugene Hall and a motorcycle driven by Wayne A. Holmes collided at the intersection of Occoquan and Horner Roads in Prince William County. Holmes died in the crash. In the Commonwealth's case-in-chief, Mike Arnold testified that he was driving about forty miles per hour westbound on Occoquan Road in the left lane and slowing because he always did so approaching an intersection. Arnold said he was fifty feet from the intersection at Horner Road when he saw in his rearview mirror a motorcycle approaching in the right lane. He testified that the traffic light at the intersection controlling his travel direction was green. As Arnold slowed, the motorcycle continued in the right lane past his car. Arnold testified that a pickup truck, which was driven by Hall eastward on Occoquan Road, made a left turn onto Horner Road, across the westbound travel lanes. Arnold testified that he was thirty feet away from the intersection when the truck turned, that the truck had no turn signal, and that the truck did not make a proper turn — "it cut the corner." Arnold saw the collision between the motorcycle and the truck. He estimated that thirty seconds passed from the time he first saw the motorcycle in his rearview mirror and the collision.
Connie Stewart was a passenger in a car, which turned onto Occoquan Road at Route One and began travelling westbound toward Horner Road. She saw the motorcycle turn onto westbound Occoquan Road from Route One. The car in which Stewart was a passenger was travelling west in the left lane of Occoquan Road, and the motorcycle was travelling west in the right lane of Occoquan Road. As the car was moving at thirty-five miles per hour, the motorcycle passed the car. The motorcyclist gave a hand signal and drove into the left westbound lane. The motorcyclist passed a car in the right westbound lane, gave a hand signal, and moved again to the right westbound lane. Stewart estimated the speed of the motorcycle as forty to forty-five miles per hour. Stewart testified that as they were approaching the intersection, the light "had turned green." Her car was in the left travel lane, and the motorcycle was in the right travel lane. As the motorcycle passed to the right of a vehicle in front of Stewart's car, Stewart "saw the motorcycle flying up in the air." She did not see the collision itself and said it was dark at the time of the accident.
Officer J.S. Scalici, who examined the crash scene one-half hour following the accident, opined that if Hall's truck had not hit the motorcycle at the point of impact, the truck would have traveled into oncoming traffic on Horner Road. The officer testified that the motorcycle was travelling between thirty-five and forty miles per hour and that Hall's truck was travelling between thirty and thirty-five miles per hour. He admitted, however, that his estimates of speed were "guess[es]."
When the officer interviewed Hall, Hall said he was returning from a bowling alley when the accident occurred. After the officer told Hall the bowling alley was in the opposite direction, Hall said he left the bowling alley, went to a friend's house, and was returning from the friend's house when the accident occurred. Hall told the officer he had three glasses of beer between 5:15 p.m. to 8:00 p.m. The officer also testified that Hall "had an odor of a strong alcohol beverage about his person."
When the officer made inquiry concerning Hall's driving status, Hall gave him an Alabama driver's license. Hall said that the license was suspended for failure to pay fines, that he had just returned from Alabama, and that "he had taken care of the fines." When the officer asked Hall if he had ever had a Virginia driver's license, Hall responded that he had not. Over objection, the officer testified that he told Hall the Department of Motor Vehicles records indicated Hall's Virginia driver's license had been suspended for a conviction. When asked about the conviction, the officer testified that Hall's Virginia license was suspended for "DWI" and that Hall's Alabama license had been revoked "for driving while intoxicated," not for failure to pay fines. Hall unsuccessfully objected to the introduction of evidence concerning the prior convictions.
Officer Christopher Lando testified that he arrived at the accident at 8:30 p.m., obtained Hall's Alabama driver's license, and determined that it was suspended. When he requested Hall to complete a "statement form," Hall wrote that "'[he] was taking a left on' — '[he] had the green' — '[he] was making a left' — '[Holmes] hit [him].'" After he "detected a very strong odor of an alcoholic beverage about [Hall's] person" and was told by Hall that he had had three mugs of beer at a bowling alley, he had Hall perform several "field dexterity tests." Hall was unsuccessful in those tests. The officer testified that he then gave Hall a "field alco-sensor test," which he identified as a device that can determine a person's blood alcohol concentration at the scene of the accident. Hall objected to testimony concerning the results of the alco-sensor test. The trial judge overruled the objection. The officer then testified that when Hall's reading reached .200, he stopped the test and arrested Hall. After the officer transported Hall to the police headquarters, Hall's breath was again tested and indicated an alcohol content of .22.
A forensic toxicologist tested fluid recovered from Holmes' body and concluded that Holmes' blood alcohol level was .13. He agreed that at .13, a person's "vision, judgment, and ability to execute or act on that judgment . . . would be a little impaired." He further testified that at .22 (Hall's blood alcohol level), a person would suffer "incoordination of the muscle, . . . disorientation, . . . [a]nd confusion." Over Hall's objection, the toxicologist opined that a man of Hall's size would have to have drink "more than 10 beers" to reach an alcohol level of .22.
At the conclusion of the Commonwealth's case, Hall testified that he went to a friend's house after leaving the bowling alley on the night of the accident. He left the friend's house and drove east on Occoquan Road. When he arrived at the intersection with Horner Road, he was in the left turn lane and the light was red. He testified that when the light controlling his travel lane turned to a green arrow, he turned left and was struck by a motorcycle. On cross-examination, Hall conceded that he had more than three beers that night and was not sure how many beers he actually had. Hall testified he has a prior felony conviction.
Elizabeth Tuialana testified that prior to the collision, she was driving north on Horner Road in the left lane. As she approached the intersection of Horner and Occoquan Roads, intending to turn left onto westbound Occoquan Road, the light controlling her lane of travel turned yellow. She stopped before entering the intersection because the light turned red. She saw a truck on Occoquan Road ready to turn onto Horner Road. After looking into her rearview mirror to see if her friend was behind her, she saw a truck on Occoquan Road turning onto Horner Road, saw "something coming down Occoquan and then the accident occurred." She recalled that the accident occurred within "a matter of seconds" of the time she arrived at the intersection.
Rachael Robinson testified that she was behind Tuialana's car going north on Horner Road. She stopped when Tuialana stopped, and she recalled that the light was yellow. When she stopped, she saw a truck stopped on Occoquan Road to her left in a turning lane. She testified that the accident then occurred within "seconds. It was fairly quickly."
John Olivo, a traffic signal supervisor for the Virginia Department of Transportation, testified that after the signal light controlling Horner Road traffic turns red, if a vehicle is in the left turn lane at Occoquan Road, the next sequence of lights would display a green turn arrow for the vehicles in the left travel lane on Occoquan. He further testified that the green arrow would display between seven and twelve seconds, depending on the number of vehicles in the turn lane. He also testified it was impossible for the green turn arrow to display while a solid green light is displaying for traffic coming from the opposite direction. After a maximum of twelve seconds, the green arrow becomes yellow for four seconds and then becomes a solid green ball. He also testified that it was possible for a green turn arrow to display if a vehicle was also making a left turn coming from the opposite direction.
At the conclusion of all the evidence, the trial judge refused an instruction tendered by Hall concerning the statutory element of causation that must be shown between Hall's intoxication and the death of the motorcyclist. The trial judge ruled that the tendered instruction was redundant because a finding instruction contained the requisite elements of the offense. Following its deliberations, the jury convicted Hall of aggravated involuntary manslaughter in violation of Code § 18.2-36.1(B).
II.
In pertinent part, Code § 18.2-36.1 provides as follows:
A. Any person who, as a result of driving under the influence in violation of subdivision (ii), (iii), or (iv) of [Code] § 18.2-266, unintentionally causes the death of another person, shall be guilty of involuntary manslaughter.
B. If, in addition, the conduct of the defendant was so gross, wanton and culpable as to show a reckless disregard for human life, he shall be guilty of aggravated involuntary manslaughter, a felony punishable by a term of imprisonment of not less than one nor more than twenty years, one year of which shall be a mandatory, minimum term of imprisonment.
"The statute's very language . . . requires . . . proof of a causal connection between the driver's intoxication and the death of another person." Pollard v. Commonwealth, 20 Va. App. 94, 99, 455 S.E.2d 283, 286 (1995). See also Castillo v. Commonwealth, 21 Va. App. 482, 494-95, 465 S.E.2d 146, 152 (1995).
Hall proposed the following jury instruction:
The phrase "as a result of driving under the influence . . . causes the death" requires proof of a causal connection between the driver's intoxication and the death of another person. Therefore, even if you find beyond a reasonable doubt that the defendant was driving while intoxicated, he cannot be found guilty of either grade of involuntary manslaughter unless you also find, beyond a reasonable doubt a causal connection between the defendant's intoxication and the death of Wayne A. Holmes.
The causal connection required is a cause "which in the natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury without which the result would not have occurred."
The trial judge did "not [say Hall's] statement of the law is wrong." Instead, the trial judge ruled that Hall's instruction was redundant of the following instruction:
The defendant is charged with the crime of aggravated involuntary manslaughter. The Commonwealth must prove beyond a reasonable doubt each of the following elements of that crime:
1. That the defendant was driving a motor vehicle; and
2. That at the time he was under the influence of alcohol; and
3. That as a result of driving under the influence the defendant unintentionally caused the death of Wayne Holmes; and
4. That the defendant's conduct was so gross, wanton and culpable as to show a reckless disregard for human life.
If you find from the evidence that the Commonwealth has proved beyond a reasonable doubt each of the above elements of the offense as charged, then you shall find the defendant guilty, but you shall not fix the punishment until your verdict has been returned and further evidence is heard by you.
If you find from the evidence that the Commonwealth has proved beyond a reasonable doubt each of the first three elements of the offense as charged but you do not find beyond a reasonable doubt that the defendant's conduct was so gross, wanton and culpable as to show a reckless disregard for human life then you shall find the defendant guilty of involuntary manslaughter, but you shall not fix the punishment until your verdict has been returned and further evidence is heard by you.
If you find that the Commonwealth has failed to prove beyond a reasonable doubt any of the above offenses, then you shall find the defendant not guilty.
"A reviewing court's responsibility in reviewing jury instructions is 'to see that the law has been clearly stated and that the instructions cover all issues which the evidence fairly raises.'" Darnell v. Commonwealth, 6 Va. App. 485, 488, 370 S.E.2d 717, 719 (1988) (quoting Swisher v. Swisher, 223 Va. 499, 503, 290 S.E.2d 856, 858 (1982)).
"The purpose of an instruction is to furnish guidance to the jury in their deliberations, and to aid them in arriving at a proper verdict, so far as it is competent for the court to assist them. The chief object contemplated in the charge of the judge is to explain the law of the case, to point out the essentials to be proved on the one side or the other, and to bring into view the relation of the particular evidence adduced to the particular issues involved. In his instructions the trial judge should inform the jury as to the law of the case applicable to the facts in such a manner that they may not be misled."
Cooper v. Commonwealth, 2 Va. App. 497, 500, 345 S.E.2d 775, 777 (1986) (citation omitted).
"Each party is entitled to have jury instructions upon vital points in language chosen by it, if the instruction is a correct statement of the law." Broady v. Commonwealth, 16 Va. App. 281, 291, 429 S.E.2d 468, 474 (1993). See also Jeffress v. Virginia Ry. Power Co., 127 Va. 694, 714, 104 S.E. 393, 399 (1920). Thus, "when a principle of law is vital to a defendant in a criminal case, a trial court has an affirmative duty properly to instruct a jury about the matter." Jimenez v. Commonwealth, 241 Va. 244, 250, 402 S.E.2d 678, 681 (1991). The principle is equally well established that it is error not to instruct the jury on a point at issue when the jury may make findings based upon a mistaken belief of the law. See Martin v. Commonwealth, 218 Va. 4, 7, 235 S.E.2d 304, 305 (1977) (per curiam).
The finding instruction sparingly states that an element of the offense is "[t]hat as a result of driving under the influence [Hall] unintentionally caused the death." The instruction tendered by Hall was explanatory of this instruction and provided for the jury the proper legal standard by which to determine the required causal connection. It was a fuller statement of the element, which was framed in sparse terms by the finding instruction. The instruction Hall tendered was intended to inform the jury that the phrase, "as a result of driving," requires more than mere proof that Hall was driving while intoxicated to establish a causal connection to the death.
Hall's defense was that the motorcyclist's own actions were the proximate cause of his death. Because there was evidence from which the jury might have found that Hall turned when he had a green arrow, the issue of causal connection between Hall's intoxication and the accident was a significant issue that the jury had to resolve. Thus, we believe that the explanatory instruction was appropriate and warranted. Indeed, we note that the trial judge properly gave an instruction explaining to the jury the finding instruction's phrase, "under the influence of alcohol." The jury was told that "[a] person is under the influence of alcohol if he has drunk enough alcoholic beverages to so affect his manner, disposition, speech, muscular movement, general appearance or behavior as to be apparent to observation." In addition, the judge elaborated on the finding instruction by informing the jury that "[g]ross or culpable and wanton conduct is that which indicates a callous disregard of human life and of the probable consequences of that conduct."
Hall was no less entitled to have the jury fully instructed as to the requirements of a causal connection. The finding instruction did not adequately convey the requirement of causal connection. The refused instruction, as were these other instructions, was more explanatory, and a fuller explication of the finding instruction. Accordingly, we reverse the conviction and remand for a new trial.
III.
Because the other issues that Hall raises will likely occur on retrial, we briefly address them.
A.
Following the collision the police officer used an "alco-sensor" to take a preliminary test of Hall's breath-alcohol content. Over Hall's objection, the trial judge permitted the officer to testify concerning the result of Hall's preliminary breath test. Hall contends that Code § 18.2-267 bars that testimony in a prosecution under Code § 18.2-36.1. The Commonwealth argues that Code § 18.2-267 only bars the results of the test in a prosecution under Code § 18.2-266 or Code § 18.2-266.1. We agree with Hall.
The Commonwealth indicted and tried Hall for aggravated manslaughter, which is statutorily defined as follows:
A. Any person who, as a result of driving under the influence in violation of subdivision (ii), (iii), or (iv) of [Code] § 18.2-266, unintentionally causes the death of another person, shall be guilty of involuntary manslaughter.
B. If, in addition, the conduct of the defendant was so gross, wanton and culpable as to show a reckless disregard for human life, he shall be guilty of aggravated involuntary manslaughter, a felony punishable by a term of imprisonment of not less than one nor more that twenty years, one year of which shall be a mandatory, minimum term of imprisonment.
Code § 18.2-36.1.
Code § 18.2-267(A) permits a preliminary breath analysis of a "person who is suspected of a violation of [Code] § 18.2-266 or [Code] § 18.2-266.1." However, another provision of that statute states that "[t]he results of the breath analysis shall not be admitted into evidence in any prosecution under [Code] § 18.2-266 or [Code] § 18.2-266.1, the purpose of this section being to permit a preliminary analysis of the alcoholic content of the blood of a person suspected of having violated the provisions of [Code] § 18.2-266 or [Code] § 18.2-266.1." Code § 18.2-267(E).
The manslaughter statute under which Hall was being tried expressly references a violation of Code § 18.2-266 as the predicate for the prosecution of aggravated manslaughter. By the express wording of the statute, a prosecution for a violation of Code § 18.2-36.1 is necessarily a "prosecution under [Code] § 18.2-266." Code § 18.2-267(E). The Commonwealth can prove a violation of Code § 18.2-36.1 if and only if it proves a violation of Code § 18.2-266. Thus, we hold that Code § 18.2-267(E) applies to bar the results of the preliminary analysis because a prosecution under Code § 18.2-36.1 adopts as an element of the offense the same proof as required by a prosecution under the enumerated provisions of Code § 18.2-266. This evidence may not be admitted upon retrial.
B.
Over Hall's objection, a police officer also testified in the Commonwealth's case-in-chief regarding Hall's prior convictions for driving under the influence of alcohol. The Commonwealth argues that this evidence, although proving a prior criminal act, was admissible because Hall's lie about the status of his license was proof of consciousness of guilt. We disagree that the evidence was admissible for that purpose.
As a general rule, evidence that an accused has committed a criminal offense other than that charged in the indictment is inadmissible. That is because such evidence confuses one offense with the other, unfairly surprises the defendant with a charge he is unprepared to meet, and, by showing that the accused has a criminal propensity, tends to reverse his presumption of innocence of the crime on trial.
Lewis v. Commonwealth, 225 Va. 497, 502, 303 S.E.2d 890, 892-93 (1983).
The evidence concerning the prior convictions was not offered to prove an element of the offense. "[I]t is improper to use evidence that a defendant has committed another crime when it has 'no connection with the one under investigation . . . [because those] other acts of criminality . . . are not legally relevant and should not be [used] to prejudice the defendant or to create a probability of guilt.'" Guill v. Commonwealth, 255 Va. 134, 140, 495 S.E.2d 489, 492 (1998) (citation omitted).
Furthermore, the probative value of the evidence clearly did not outweigh its incidental prejudice. See id. at 141-42, 495 S.E.2d at 492-93. The uncontested evidence in the record proved that Hall's blood-alcohol content measured .22 when tested at the police station. Proof that he had prior suspensions and convictions for driving under the influence was only designed to cause undue prejudice. This evidence may not be admitted upon retrial.
For the reasons we have previously stated, we reverse the conviction and remand for a new trial.
Reversed and remanded.
Because the trial judge properly ruled on the issues, I would affirm the conviction. Therefore, I respectfully dissent from the majority opinion.
To understand the rulings of the trial judge, one must understand the factual circumstances in which the issues arose at the trial. Hall was convicted in a jury trial of aggravated involuntary manslaughter in violation of Code § 18.2-36.1. I consider the evidence in the light most favorable to the Commonwealth. On February 2, 1997, about 8:00 p.m., Hall was driving eastbound in his pickup truck on Occoquan Road in Prince William County. At the same time, the victim, Wayne Holmes, was traveling westbound on his motorcycle on Occoquan Road, which intersects with Horner Road. Occoquan Road consists of four lanes of travel, two going in each direction. The intersection is controlled by traffic lights.
Mike Arnold testified at trial that he was proceeding west in the left lane of Occoquan Road, approaching Horner Road. He observed Holmes' motorcycle in his rearview mirror in the right lane behind him. Arnold testified that the motorcycle came up behind him and passed him on his right side. According to Arnold, Holmes was operating the motorcycle in a "normal" fashion. Arnold testified that the traffic light was green for Holmes as he proceeded into the intersection. Arnold further testified that Hall's pickup truck made a left turn at the intersection in front of him, but did not make a proper left turn because he "cut the corner."
Connie Stewart, a passenger in a westbound car driven by Richard Lee Berry, witnessed the accident. From her vantage point behind Holmes, Stewart observed Holmes in the right-hand lane. She testified there was nothing unusual in the way Holmes was operating the motorcycle. She estimated his speed at 40-45 miles per hour. Stewart testified that the traffic light was green for Holmes as he proceeded into the intersection. She then observed the motorcycle "flying up in the air."
Berry, who drove the car in which Stewart was a passenger, also testified. He recalled that Holmes passed him "like any other normal vehicle would." He also stated that "he seemed to be sort of just smoothly going by." Berry observed a flash and sensed that a collision had occurred in the intersection.
Frances Field, an assistant chief medical examiner who performed the autopsy, testified as to the extensive injuries sustained by Holmes to his entire body. She concluded that the cause of death was "Multiple Severe Injuries (ruptured aorta)." The autopsy report, which was filed as an exhibit, summarized that "the deceased was the driver of a motorcycle who was hit by another vehicle."
When Officer Christopher Lando arrived at the scene, he spoke with Hall and noticed a "very strong odor of alcoholic beverage" on his person. Hall stated that he had consumed three mugs of beer at the bowling alley and that he had consumed no alcohol since the accident occurred. Lando asked Hall to perform field sobriety tests which Hall failed to satisfactorily perform. Lando offered Hall a field alco-sensor test, which he agreed to take. When the alco-sensor registered .200, Lando removed his finger from the machine and "didn't let it finish climbing all the way up." A breath test subsequently administered to Hall pursuant to the Virginia Implied Consent Law showed a blood alcohol concentration of .22 grams per 210 liters of breath. Holmes' blood alcohol content was .13.
Hall bases his appeal upon four issues: (I) whether the trial court erred in admitting evidence of the result of the alco-sensor test; (II) whether the trial court erred in denying Hall's motion to strike based upon (A) insufficient evidence of "gross, wanton and culpable" driving behavior and (B) insufficient evidence of a causal relationship between Hall's drinking and the death of Holmes; (III) whether the court erred in refusing to grant Instruction H requested by Hall regarding causation; and (IV) whether the court erred in permitting testimony in the Commonwealth's case-in-chief that Hall had prior driving while intoxicated ("DWI") convictions. I shall discuss each issue seriatim.
I. Admissibility of Alco-Sensor Test Results
During the testimony of Officer Lando, it was disclosed that he offered Hall the opportunity to take a field alco-sensor test at the scene of the accident and that Hall agreed to take it. At trial, the Commonwealth's attorney asked Lando what were the results of the test. Hall objected to admitting "the results of the Alco-Sensor." The Commonwealth's attorney argued that such evidence is inadmissible in a DUI prosecution, but that this was an involuntary manslaughter prosecution.
Hall elaborated upon his objection as follows:
[DEFENSE COUNSEL]: Your Honor, the DUI, in effect, is combined in this charge and the basis for its introduction at this point is just in terms of proving that he was intoxicated, which, of course, is what we have proven by other means. I don't believe the results of this test are admissible, that being the case. I understand this is an involuntary manslaughter case or aggravated involuntary manslaughter case, but I think that the prohibition on the admissibility of the results is governed by the statute, given the fact that DUI is a lesser included offense of this charge. I would also say, I believe the reason for its inadmissibility is because these tests are not as accurate as breathalyzers or other tests that are used to determine blood alcohol content plus the protection of the statute.
The trial judge commented that the alco-sensor is probably as accurate as certain field sobriety tests. He stated that the "statute says very clearly it can't be used in a prosecution under 18[.2]-266 or [18.2-2]66.1. It says it twice. It says that in C and it also says that in E. This is not . . . [a] prosecution under" those statutes. The court then held the results of the test admissible in a charge of involuntary manslaughter under Code § 18.2-36.1.
The general rule for the admissibility of evidence is that it be relevant and material. See Evans-Smith v. Commonwealth, 5 Va. App. 188, 196, 361 S.E.2d 436, 441 (1987). "'Evidence is relevant if it has any logical tendency, however slight, to establish a fact at issue in the case.'" Braxton v. Commonwealth, 26 Va. App. 176, 186, 493 S.E.2d 688, 692 (1997) (citation omitted).
In this case, Hall's intoxication is a fact in issue and any evidence that tends to cast light upon the subject of the inquiry is admissible. Therefore, under the general rule, the alco-sensor results would be admissible.
Hall contends that such evidence is excluded under Code § 18.2-267. I disagree. Code § 18.2-267(E) provides that the results of a preliminary breath test "shall not be admitted into evidence in any prosecution under § 18.2-266 or § 18.2-266.1." (Emphasis added.) The purpose of that code section is "to furnish a preliminary analysis of the alcoholic content of the breath of a person suspected of having violated the provisions of § 18.2-266 or § 18.2-266.1." Id. (emphasis added.)
"[W]hen a statute . . . is clear and unambiguous . . . a court may look only to the words of the statute to determine its meaning. The intention of the legislature must be determined from those words, unless a literal construction would result in a manifest absurdity. Thus, when the legislature has used words of a clear and definite meaning, the courts cannot place on them a construction that amounts to holding that the legislature did not intend what it actually has expressed."
Bowman v. Commonwealth, 28 Va. App. 204, 210, 503 S.E.2d 241, 243-44 (1998) (citation omitted).
Code § 18.2-267 is clear and unambiguous. Hall was entitled to have his breath analyzed, but he was not required to take the test. In two places, the legislature expressly restricted admissibility of the results of the breath analysis to "any prosecution under § 18.2-266 or § 18.2-266.1." Appellant was prosecuted for aggravated involuntary manslaughter under Code § 18.2-36.1. The fact that one of the elements of involuntary manslaughter requires the Commonwealth to prove the accused was "driving under the influence in violation of subsection (ii), (iii), or (iv) of § 18.2-266" is of no significance. The statute restricting admissibility of the results of the alco-sensor test is not based upon nor does it purport to set out the elements of DUI; rather, it prescribes a voluntary preliminary breath test to which a suspected driver is entitled, and it limits evidence of the results of that tests to prosecutions under § 18.2-266 and § 18.2-266.1. Because appellant was charged with violating Code § 18.2-36.1, not Code § 18.2-266, it is not a question in this case of interpreting "prosecutions" broadly or narrowly. The DUI statute has defined it implicitly and has restricted the admissibility of the test results only to prosecutions under § 18.2-266 and § 18.2-266.1.
Prior to 1989, involuntary manslaughter was not statutorily defined in Virginia but was classified as a Class 5 felony. See Code § 18.2-36. Involuntary manslaughter in the operation of a motor vehicle prior to that time was defined as an "accidental killing which, although unintended, is the proximate result of negligence so gross, wanton, and culpable as to show a reckless disregard of human life." King v. Commonwealth, 217 Va. 601, 607, 231 S.E.2d 312, 316 (1977). See also Keech v. Commonwealth, 9 Va. App. 272, 275, 386 S.E.2d 813, 814 (1989).
In 1989, the legislature enacted Code § 18.2-36.1 as a separate and distinct statute. It defined involuntary manslaughter and aggravated involuntary manslaughter as follows:
A. Any person who, as a result of driving under the influence in violation of subdivision (ii), (iii), or (iv) of § 18.2-266, unintentionally causes the death of another person, shall be guilty of involuntary manslaughter.
B. If, in addition, the conduct of the defendant was so gross, wanton and culpable as to show a reckless disregard for human life, he shall be guilty of aggravated involuntary manslaughter. . . .
Code § 18.2-36.1.
At the time Code § 18.2-36.1 was enacted, Code § 18.2-267 was in existence and clearly provided that "any person who is suspected of a violation of § 18.2-266 or § 18.2-266.1 shall be entitled, if such equipment is available, to have his breath analyzed to determine the probable alcoholic content of his blood." Yet, the legislature chose not to include in Code § 18.2-36.1 a cross-reference to Code § 18.2-267(E) or an express restriction on the admissibility of the alco-sensor test in involuntary manslaughter prosecutions. Then as now, subsections (C) and (E) provided that "the breath analysis shall not be admitted into evidence in any prosecution under § 18.2-266 or § 18.2-266.1. . . ." Code § 18.2-267(C), (E) (emphasis added).
Code § 18.2-267 has been amended four times since it was first enacted: in 1990, 1992, 1994, and 1996; yet, a restriction on the admissibility of alco-sensor results in prosecutions under Code § 18.2-36.1 has never been included in the amendments. If the General Assembly intended such a restriction to apply to prosecutions under Code § 18.2-36.1, it had numerous opportunities to include it in the amendments. To add the restrictions of Code § 18.2-267, the existence of which the legislature is presumed to be aware, to Code § 18.2-36.1 without the legislature's imprimatur is tantamount to judicial legislation and is beyond the power of this Court. See Commonwealth v. Gregory, 193 Va. 721, 726, 71 S.E.2d 80, 83 (1952) ("'To declare what the law is, or has been, is a judicial power; to declare what the law shall be is legislative.'").
Hall also contends that the alco-sensor test results should not have been admitted because the test is unreliable. We have said that the test is sufficiently reliable to prove that a person has consumed alcohol and that the fact of consumption may furnish reason to believe that a person is intoxicated. See Stacy v. Commonwealth, 22 Va. App. 417, 422, 470 S.E.2d 584, 586 (1996). Therefore, that contention is without merit.
For the foregoing reasons, I conclude that the trial judge did not err in admitting the test results of the alco-sensor.
In addition, assuming, arguendo, that it was error to admit this evidence, such error was harmless because Hall suffered no prejudice. During the Commonwealth's case-in-chief, the actual breath test result taken pursuant to the Virginia Implied Consent Law was introduced into evidence without objection. The test result indicated a blood alcohol content of .22, reflecting a higher concentration of alcohol than that obtained from the alco-sensor. Therefore, I disagree with the majority opinion on this issue.
II. Motion to Strike the Evidence
Hall made a motion to strike the evidence, alleging that the evidence was: (A) insufficient to prove "gross, wanton and culpable" driving behavior; and (B) insufficient to prove a causal relationship between his driving and the death of Holmes.
"On appeal, we view the evidence in the light most favorable to the Commonwealth and grant to it all reasonable inferences therefrom." Barlow v. Commonwealth, 26 Va. App. 421, 428-29, 494 S.E.2d 901, 904 (1998). So viewed, the record discloses the following: (1) at the scene of the accident, Officer Lando detected a very strong odor of alcoholic beverage about Hall's person; (2) Hall did not perform field dexterity tests to the satisfaction of the police officer; (3) Hall took a breathalyzer test pursuant to the Virginia Implied Consent Law, and his test result showed a blood alcohol concentration of .22 grams per 210 liters of breath, almost three times the legal limit of .08; (4) Holmes' blood alcohol content was .13; (5) Dr. Anh Huynh, an expert in forensic toxicology, testified that .13% volume of alcohol means that in the three areas of vision, judgment, and ability to execute, the person would be a little impaired; however, Dr. Huynh further opined that the difference between .13 and .22 is "enormous" and that the "effects at .22 alcohol in the blood would be even more impairment in terms of execution because of the incoordinations of the muscle" and would produce "disorientation." According to Huynh, "when you get more than .2," it is difficult to execute basic driving maneuvers. Dr. Huynh testified that Hall would have had to drink at least ten beers to reach a blood alcohol level of .22. Hall admitted to drinking only three beers to the police officer; (6) Officer J.S. Scalici testified that if Hall's truck had not hit the motorcycle at the point of impact, the truck would have traveled into oncoming traffic on Horner Road, indicating that he was "cutting the corner" in making the left turn; such a maneuver violates Code § 46.2-846, which requires left turns to be "made from the right half of the roadway and as close as possible to the roadway's center line where it enters an intersection."
Commonwealth witnesses testified that Holmes had the green light. The evidence was sufficient for the jury to infer from the evidence that Hall made the left turn on a red light or at least not on the green arrow. In fact, Hall admitted at trial that if westbound traffic on Occoquan Road has a green signal, there could be no advance green arrow signaling eastbound traffic to turn left.
Appellant contends that Holmes' conduct was the cause of the accident. The jury rejected this view of the evidence.
In a prosecution brought under Code § 18.2-36.1, the Commonwealth is required to prove "a causal connection between the driver's intoxication and the death of another person." Pollard v. Commonwealth, 20 Va. App. 94, 99, 455 S.E.2d 283, 286 (1995). Generally, proximate cause is an issue for the jury to decide.See Forbes v. Commonwealth, 27 Va. App. 304, 309, 498 S.E.2d 457, 459 (1998). The jury was instructed that the Commonwealth was required to prove "[t]hat as a result of driving under the influence the defendant unintentionally caused the death of Wayne Holmes."
The fact that Holmes had a blood alcohol concentration of .13 does not exonerate Hall. "[C]ontributory negligence has no place in a case of involuntary manslaughter." Bell v. Commonwealth, 170 Va. 597, 616, 195 S.E. 675, 683 (1938). "Only if the conduct of the decedent amounts to an independent, intervening act alone causing the fatal injury can the accused be exonerated from liability for his or her criminal negligence." Hubbard v. Commonwealth, 243 Va. 1, 14, 413 S.E.2d 875, 882 (1992). The evidence does not support such a conclusion. Only if Holmes' conduct amounted to the sole cause of the accident as a matter of law could the trial court strike the evidence. Obviously, it did not err in refusing to strike the evidence.
III. Instruction H
Hall contends that the trial court erred in rejecting his proffered Instruction H concerning the causal connection required to be shown between his intoxication and Holmes' death.
Without objection, the trial judge gave the following instruction:
Instruction No. 3
The defendant is charged with the crime of aggravated involuntary manslaughter. The Commonwealth must prove beyond a reasonable doubt each of the following elements of that crime:
1. That the defendant was driving a motor vehicle; and
2. That at the time he was under the influence of alcohol; and
3. That as a result of driving under the influence the defendant unintentionally caused the death of Wayne Holmes; and
4. That the defendant's conduct was so gross, wanton and culpable as to show a reckless disregard for human life.
If you find from the evidence that the Commonwealth has proved beyond a reasonable doubt each of the first three elements of the offense charged but you do not find beyond a reasonable doubt that the defendant's conduct was so gross, wanton and culpable as to show a reckless disregard for human life then you shall find the defendant guilty of involuntary manslaughter, but you shall not fix the punishment until your verdict has been returned and further evidence is heard by you.
If you find that the Commonwealth has failed to prove beyond a reasonable doubt any of the above offenses, then you shall find the defendant not guilty.
Hall's tendered Instruction H only addressed element three included in Instruction No. 3, above. The proffered instruction provided:
Instruction No. H
The phrase "as a result of driving under the influence . . . causes the death," requires proof of causal connection between the driver's intoxication and the death of another person. Therefore, even if you find beyond a reasonable doubt that the defendant was driving while intoxicated, he cannot be found guilty of either grade of involuntary manslaughter unless you also find, beyond a reasonable doubt a causal connection between the defendant's intoxication and the death of Wayne A. Holmes.
The causal connection required is a cause "which in the natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury without which the result would not have occurred."
When defense counsel tendered Instruction "H," he stated that it explained what needed to be shown "for that one element — as a result of driving under the influence causing a death."
The Commonwealth's attorney objected to the instruction. He stated that "the only reason that the defense wants this element emphasized is because that underscores the theory of their case." He further stated that the phrase "as a result of" did not need any further explanation.
The trial judge commented that it was a question of "whether you are emphasizing it or you are defining or clarifying it." Holding that Instruction H said the same thing that Instruction No. 3 had already said, the trial judge found it redundant, and he refused the proffered instruction.
"[W]hen granted instructions fully and fairly cover a principle of law, the trial court does not abuse its discretion in refusing another instruction relating to the same legal principle." Stockton v. Commonwealth, 227 Va. 124, 145, 314 S.E.2d 371, 384, cert. denied, 469 U.S. 873 (1984). See also Cirios v. Commonwealth, 7 Va. App. 292, 303-04, 373 S.E.2d 164, 170 (1988) (holding the same). "'"[I]t is not desirable to multiply instructions."'" Moreover, any instruction that is given should relate to the specific evidence in the case, and should not incorrectly state the law or mislead the jury. . . . [T]he trial judge may properly refuse any instructions that are misleading or redundant." Diffendal v. Commonwealth, 8 Va. App. 417, 423, 382 S.E.2d 24, 26-27 (1989) (citations omitted).
These are the principles upon which the trial court refused Hall's Instruction H. It should also be noted that Hall makes no objection to Instruction No. 3 granted by the trial court.
In comparing the causation element, Code § 18.2-36.1 uses the phrase: "As a result of driving under the influence in violation of subdivision (ii), (iii), or (iv) of § 18.2-266, unintentionally causes the death of another person." Instruction No. 3 used the phrase "that as a result of driving under the influence defendant unintentionally caused the death of Wayne A. Holmes." The model jury instruction relating to the charge uses the phrase "that as a result of driving under the influence the defendant unintentionally caused the death of (name of person)." IIVirginia Model Jury Instructions, Criminal 33.660 (1998 repl. ed.). Thus, the language used by the trial court substantially tracked the language of Code § 18.2-36.1 and the Virginia Model Jury Instructions.
In holding that the refusal to grant Instruction H constituted reversible error, the majority put forth the following criticism regarding the trial court's action: (1) Instruction No. 3 sparingly stated the elements of the offense; (2) Instruction H tendered by Hall was explanatory of the court's Instruction No. 3; (3) Instruction H provided the jury with the proper legal standard by which to determine the required causal connection; and (4) Instruction H was a fuller statement of the elements because it informed the jury that the phrase "as a result of driving" requires more than mere proof that Hall was driving while intoxicated to establish a causal connection to the death.
I will discuss each of the above criticisms in turn.
1. Instruction No. 3 does not "sparingly" state the elements. The elements of conduct punishable as involuntary manslaughter are precisely set forth by the General Assembly in Code § 18.2-36.1. It is not for the courts to change the statute. As previously stated, the wording of the instruction given by the trial court tracks the language of the code and also the language of the Virginia Model Jury Instructions recommended for Aggravated Involuntary Manslaughter cases.
2. Instruction H is not explanatory of Instruction No. 3. It uses the same language, has the same meaning, and, as noted by the trial judge, is redundant and repetitious.
3. Instruction H did not provide the jury with the proper legal standard by which to determine causal connection. The proper legal standard for certain conduct punishable under Code § 18.2-36.1 was established by the legislature in 1989, when they passed the statute. The standard was: any person who, as a result of driving under the influence in violation of subdivision (ii), (iii), or (iv) of § 18.2-266 unintentionally, causes the death of another person, shall be guilty of involuntary manslaughter. The statute in clear and unmistakable terms requires proof of causation without more. In Pollard, 20 Va. App. at 99, 455 S.E.2d at 286, we explained that Code § 18.2-36.1's "very language . . . requires proof of causation," and "[t]he phrase, 'as a result of driving under the influence . . . causes the death,' requires proof of a causal connection between the driver's intoxication and the death of another person."
Although the majority included a portion of the above-quoted language from Pollard, it failed to include the portion tracking the language of Code § 18.2-36.1, namely "'as a result of driving under the influence . . . causes the death.'" 20 Va. App. at 99, 455 S.E.2d at 286. Pollard correctly ruled that the language of the statute requires proof of causation. Certainly an instruction tracking the language in the statute would be sufficient to require proof of causation. Thus, Instruction H was repetitious.
Instruction No. 3 given by the trial court, without objection from Hall, stated the correct elements of the offense charged and was a correct finding instruction setting forth all the issues fully and fairly.
4. The majority claims that Instruction H was a fuller statement of the causation element and was intended to inform the jury that the phrase, "as a result of driving," requires more than mere proof that Hall was driving while intoxicated to establish a causal connection to the death. In the preceding paragraphs I have quoted from Pollard that Code § 18.2-36.1 by its very language requires proof of causation. The phrase "as a result of driving under the influence . . . causes the death" sufficiently explains the required proof of causation. The trial court found that the purpose of Instruction H was to emphasize causation, which was already adequately covered by Instruction No. 3. Instruction H is not a fuller statement and is in some respects incorrect.
At trial, Hall contended that Instruction H was necessary to define and clarify Instruction No. 3. The trial judge refused to grant Instruction H because he thought it improperly emphasized causation, having already given Instruction No. 3 providing for causation. The second instruction does not clarify or define anything; it is a second finding instruction on causation.
Moreover, the last paragraph of Instruction H was improper. It is applicable to civil cases and was taken from I Virginia Model Jury Instructions, Civil 5.000 (1998 repl. ed.). The actual model instruction begins with the words: "A proximate cause of an accident, injury, or damage." Id. In place of that phrase, Hall substituted in Instruction H the phrase "the causal connection."
In Hubbard, the Supreme Court stated "[w]e think that by attempting to inject inapplicable principles of civil negligence into a criminal trial, Instructions B and C would have created confusion and would have been misleading. Furthermore, they would have been duplicative." 243 Va. at 15, 413 S.E.2d at 882-83. The same is true of Instruction H.
Accordingly, the trial judge acted within his discretion when he rejected Instruction H.
IV. Admissibility of Hall's Previous Conviction of Driving While Intoxicated
Officer Scalici arrived at the scene approximately thirty minutes after the accident occurred. He spoke with Hall and testified at trial about the interview. In an effort to limit his testimony, defense counsel objected to what he thought would be Scalici's forthcoming testimony. He contended that it would lead to an area that would be prejudicial and would lead to a criminal record that would not be probative of any issue in the case. The Commonwealth claimed the evidence would be linked to one of the elements and would be evidence of consciousness of guilt. The trial judge thought it would also be evidence of credibility and ruled the evidence admissible. Scalici testified as follows:
[THE COMMONWEALTH]: Mr. Scalici, during the course of this interview, did you question Mr. Hall about his status of his privilege to drive?
[SCALICI]: Yes, sir, I did.
[THE COMMONWEALTH]: What did he tell you?
[SCALICI]: Mr. Hall had displayed a driver's license from the state of Alabama. I asked him if he knew his Alabama license was suspended. He told me it had been for fines, he was just coming back from Alabama, and he had taken care of the fines.
I also asked him if [he] ever had a Virginia driver's license. He told me that he had never had a Virginia license. I advised him that the DMV had told me that according to the DMV records, that he had at one time had a Virginia driver's license that had been suspended for a conviction —
Hall made a hearsay objection which the trial judge overruled, after which Scalici added that appellant "refused to make any comments about either one of the licenses and the interview was terminated." The examination continued:
[THE COMMONWEALTH]: What information did you get from DMV regarding his Virginia status?
[SCALICI]: His license had been suspended for a [DUI] conviction.
* * * * * * *
[THE COMMONWEALTH]: Why was his license revoked in Alabama?
[SCALICI]: Also for driving while intoxicated, sir.
The Commonwealth strongly argued that this evidence was admissible to show consciousness of guilt, similar to flight from the scene, and it cited Hope v. Commonwealth, 10 Va. App. 381, 386, 392 S.E.2d 830, 834 (1990) (en banc), in support of its position. The majority disagrees that the evidence was admissible for that purpose. Rather, the majority holds it was improper to use the evidence that Hall had committed other crimes when they had no connection with the one under investigation. According to the majority, proof of the prior suspensions was only designed to cause undue prejudice.
I will not attempt to decide this issue on its merits, but for the sake of argument I will assume that the trial court committed error in holding this evidence admissible. Even if it was error to admit this evidence, I believe it was harmless error for the reasons that follow.
I shall start with several of the court instructions that define the law in the case. Hall made no objection to these instructions. One instruction states that a person is under the influence of alcohol if he has drunk enough alcoholic beverages to so affect his manner, disposition, speech, muscular movement, general appearance, or behavior as to be apparent to observation.
Another instruction defined gross, wanton or culpable conduct as that which indicates a callous disregard of human life and of probable consequences of that conduct.
The last instruction stated the following:
If you find that it was the defendant's, Franklin Eugene Hall's, conduct alone or Franklin Eugene Hall's conduct and Wayne Holmes' conduct acting together which caused the accident, then Wayne Holmes' conduct does not amount to a defense against the charge of aggravated involuntary manslaughter.
You may consider Wayne Holmes' conduct as a defense to aggravated involuntary manslaughter only if you find that conduct to be the sole cause of the accident.
Although the trial court may have erred by admitting this evidence, "this does not automatically entitle . . . [the defendant] to a reversal of his conviction. 'A conviction should not be reversed unless the introduction of improper evidence suggests a manifest probability that it was prejudicial to the defendant.'" Rider v. Commonwealth, 8 Va. App. 595, 600, 383 S.E.2d 25, 27 (1989) (citations omitted).
"The effect of an error on a verdict varies widely 'depending upon the circumstances of the case.' Each case must, therefore, be analyzed individually to determine if the error has affected the verdict." Lavinder v. Commonwealth, 12 Va. App. 1003, 1009, 407 S.E.2d 910, 913 (1991) (en banc). We have further said:
"Whether such an error is harmless in a particular case depends upon a host of factors, all readily accessible to reviewing courts. These factors include the importance of the witness' testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution's case."
Sargent v. Commonwealth, 5 Va. App. 143, 154, 360 S.E.2d 895, 901 (1987) (quoting Delaware v. VanArsdall, 475 U.S. 673, 674 (1986)).
We, therefore, look to the evidence to see if the improperly admitted statements of Hall's driving convictions had any affect upon the guilty verdict of the jury.
The effect the evidence of the two DWI convictions had upon the jury was completely overshadowed by other admissible evidence in the record of Hall's drinking. Officer Lando smelled "a very strong odor of alcoholic beverage" upon Hall's breath at the accident scene. Hall failed the field sobriety tests administered by the officer. He tested .200 on the alco-sensor test and .22 on the breathalyzer test administered under the Virginia Implied Consent Law. Dr. Huynh, an expert in forensic toxicology employed by the Department of Criminal Justice for the Commonwealth of Virginia, compared the breath results of Hall and Holmes and explained that the difference between the two was "enormous." He explained that, while Holmes' vision, judgment, and ability to execute would be a little impaired, Hall's vision, judgment, and ability to execute would be more impaired and he would display some "disorientation" and lack coordination. Dr. Huynh further testified that Hall would have had to drink at least ten beers to reach .22, whereas Hall told the police officer that he only had three mugs of beer.
Two eyewitnesses, Mike Arnold and Connie Stewart, unequivocally testified that Holmes had the green light, which meant that Hall could not have turned on the green arrow light as he claimed. Arnold and Stewart were unimpeached. Hall did not tell the truth to the police officer about the amount of beer he had consumed. He also admitted to committing a felony.
The jury obviously believed the Commonwealth's witnesses and not the witnesses for Hall. They found Hall guilty of aggravated involuntary manslaughter. To reach this finding, they had to consider that Hall's conduct was so gross, wanton and culpable as to show a reckless disregard for human life. This was a bifurcated trial. Evidence of the two DWI convictions could not have any effect upon the guilt phase.
Admittedly, the two convictions would have affected the punishment stage; however, the Commonwealth was entitled to present Hall's convictions during the punishment stage. The Commonwealth introduced certified copies of Hall's convictions, including a 1986 felony conviction in Virginia for shooting or throwing a missile at an occupied dwelling; a 1993 driving under the influence conviction from Fairfax County; a 1994 driving under the influence conviction from Calvin County, Alabama, that included a conviction for possessing a small amount of marijuana for personal use; a 1996 disorderly conduct conviction; a 1997 criminal mischief conviction involving property valued at less that $250; and a January 7, 1997 driving under the influence conviction. In addition, Hall's driving records from Alabama and Virginia were introduced. Because there was abundant evidence that Hall was intoxicated and because Hall's entire criminal record was admissible in the punishment phase for consideration by the jury, the introduction at an earlier stage was not prejudicial.
The testimony of the police officer about the two convictions for driving while intoxicated did not contain any reference to reckless driving nor did it indicate that an accident resulted. Therefore, I conclude that the admission of evidence of the Alabama and Virginia convictions of driving while intoxicated, under the circumstances of this case, was inconsequential and harmless.
The conviction should not be reversed because the introduction of this evidence does not suggest a manifest probability that Hall was prejudiced. The introduction had no affect upon the verdict of the jury. Therefore, for the foregoing reasons, I dissent.