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KENYON v. STATE6/4/1997
Appellant Terry Jay Kenyon appeals his conviction of two counts of negligent homicide for which he was sentenced to a term of imprisonment of twelve months and fined $2,000. Appellant raises three points on appeal. He first argues that the trial court should have suppressed the results of the blood-alcohol test obtained by the State because the private laboratory that performed the test and then stored the remainder of the blood sample removed the sample from refrigeration, causing it to be useless for further testing by appellant. Appellant then argues that the judgment should be reversed because the trial court allowed the introduction of graphic photographs of the victims. Finally, appellant argues that the trial court should have granted his motion for a mistrial because spectators attending the trial and sitting near the front of the courtroom were wearing buttons with the picture of one of the victims and coming and going often, thereby drawing attention to themselves. Finding no error, we affirm.
The tragic facts of this case are that appellant and his wife, Rhonda Kenyon, invited three couples to a small "get-together" on their houseboat on Greers Ferry Lake at Heber Springs, Arkansas, on the evening of July 3, 1995. The couples grilled, drank beer and margueritas, and watched fireworks. From the testimony, it appears that appellant acted as host throughout the evening, serving the guests and grilling. According to the testimony by the guests on appellant's houseboat, appellant did not appear to be intoxicated during the evening. Appellant's testimony was that he had between three and four beers during the course of the evening. He testified that he had no difficulty cleaning up the boat and loading everyone's cars at the end of the evening. He felt that he was in an acceptable condition to drive. After the guests left at approximately 11:30 p.m., appellant and his wife straightened and cleaned the houseboat before leaving. Everyone was returning to Searcy, Arkansas, by way of Highway 16. Appellant's wife reclined her seat and slept on the way home while appellant drove. Appellant, who was driving a Ford Explorer, testified that he did not remember anything from the time that he left the parking lot at the lake.
Meanwhile, Melissa Patrick was spending the evening with her parents; a friend's child; her boyfriend, victim Steven Seitz; and her one-month-old son, victim Cody Patrick. At the end of the evening, Melissa Patrick, Steven Seitz, and Cody started to return to Hickory Flat, Arkansas, by way of Highway 16. Melissa was driving her pickup truck, and Steven was following in a Ford Escort with Cody strapped in an infant carseat in the backseat. Melissa's testimony was that she was driving fifty-five miles an hour when appellant's car entered her lane, hitting her truck, and causing her to wreck. Melissa was able to climb from her truck through a window and saw that the Escort in which Steven and Cody were riding also had been hit. Steven Seitz and Cody Patrick were killed instantly in the wreck. After the accident, Melissa was taken to the hospital in the same ambulance as appellant, but she was hysterical and could not recall if he smelled of alcohol.
Passengers in a car that immediately came upon the wreck and stopped testified that appellant had passed them on a double yellow line at a high rate of speed a mile or less before the
accident. One passenger testified that he smelled alcohol in appellant's Ford Explorer. Another testified that he smelled a strong odor of intoxicants, but did not know if it was alcohol, anti-freeze, or something else.
The state trooper who went to the scene testified that he smelled alcohol on appellant and listed that a
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