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State v. Green8/9/1999
The appellant, Richard A. Green, was convicted by a jury of vehicular homicide by intoxication, a class B felony. Following a sentencing hearing, the Jefferson County Criminal Court imposed a ten year sentence of confinement. The appellant appeals both the judgment of conviction and resulting sentence entered by the trial court. In doing so, he challenges:
I. The admission into evidence of the results of blood alcohol tests performed by both the Tennessee Bureau of Investigation and Jefferson Memorial Hospital;
II. The expert testimony of Dr. John Zirkle regarding the combined effects of alcohol and drugs on an individual's ability to operate a motor vehicle;
III. The testimony relating to the presence of alcoholic beverage containers found in the appellant's vehicle;
IV. The imposition of a ten year sentence as being excessive; and
V. The trial court's denial of a suspended sentence.
After review of the record and the applicable law, we find no error of law requiring reversal of the judgment or modification of the sentence. The judgment of the trial court is affirmed.
Background
The proof introduced at trial, taken in the light most favorable to the State, reveals the following. On June 26, 1997, Richard Seymour picked up his wife, Margaret, from her place of employment at approximately 4:00 p.m. The couple drove to Wendy's in Jefferson City where they ate dinner. They then completed some grocery shopping at the nearby Wal-Mart. The couple then began their drive home on Highway 25/70. Upon approaching Kerr's Market, they noticed a vehicle coming towards them on the wrong side of the road. Margaret Seymour exclaimed, "he's going to hit us." Richard Seymour stopped their Pontiac sedan in time to watch the approaching red Volvo "travel all the way across to the edge of the road." Richard Seymour thought that "[the appellant] was going into the cow pasture." However, the red Volvo veered back across to his side of the road. Mr. Seymour "took his foot off the brake and started his vehicle toward a big strip out on the edge of his side of the road." The Volvo again veered back across the road. Mr. Seymour stopped again. The Volvo "went back across" and collided with the passenger side of the Seymours' vehicle.
At approximately 6:30 p.m., members of the Tennessee Highway Patrol were dispatched to the scene of the crime. Troopers Bud Potts and Lloyd Smith discovered two vehicles at the scene, a cream color Pontiac sedan and a 1978 red Volvo. Trooper Smith approached the driver of the red Volvo, later identified as the appellant. Smith observed that the appellant "appeared to be very intoxicated. He was using a lot of profanity and not cooperating with the ambulance personnel at all. I attempted to question him . . . and he more or less. . . told me to go to hell." Trooper Smith added that the appellant "had a very strong odor of alcohol." Upon searching the appellant's vehicle, Trooper Smith discovered two empty beer bottles, "one of them had a little cup holder thing on it they put them in to keep them cool." A more thorough search was completed after the vehicle was towed from the scene. Trooper Smith later found "a total of twelve bottles, part of them empty and part of them full" and a "pack of rolling papers # 1.5."
The appellant, Richard Seymour, and Margaret Seymour were transported by ambulance to Jefferson Memorial Hospital. Margaret Seymour, the forty- five year old passenger of the Pontiac, was dead on arrival at the hospital. Efforts to revive her were futile.
Later on that evening, Trooper David Brown questioned the appellant at the Jefferson Memorial
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