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State v. Gabriel3/12/1991
RADCLIFFE, Judge.
In the Franklin County Court of Common Pleas, a jury found defendant-appellant, Emmett Gabriel, guilty of five counts of involuntary manslaughter and five counts of aggravated vehicular homicide. The trial court sentenced appellant on four counts of involuntary manslaughter and one count of aggravated vehicular homicide. Appellant was sentenced to four consecutive terms of five to fifteen years to be served consecutively with one sentence of three to five years for the aggravated vehicular homicide convictions. Appellant's driving privileges were suspended for life.
Appellant appeals this decision and raises the following two assignments of error:
"1. The trial court erred when it overruled the defendant's motion to dismiss the involuntary manslaughter charges on the grounds that the special provisions of the aggravated vehicular homicide charges took precedent over the general provisions of the involuntary manslaughter charges and further erred when it sentenced the defendant on four counts of involuntary manslaughter instead of aggravated vehicular homicide.
"2. The trial court erred when it allowed the defendant's physician and a medical technician to testify over the objection of the defendant on the grounds of privilege."
On the evening of December 27, 1988, Columbus Police Officer Lolita Perryman was on duty in the south end of Columbus. At approximately 6:30 p.m., Perryman was traveling south on High Street near the intersection of Frank Road and High Street. At this point, she observed a light blue car make a wide reckless turn onto High Street, fishtailing as the turn was made. Perryman decided to stop the driver, activated her beacons, made a U-turn and began traveling behind the light blue car in a northerly direction. Appellansturned around, looked at Perryman and "hit the gas and took off." Perryman activated her sirens and began pursuit. Appellant ran a light at the intersection of Barthman Avenue and High Street, hitting a car which was turning south onto High Street. The impact of the collision killed the five occupants of the car instantly, and the car burst immediately into flames. Appellant's car then slid, hitting some parked cars and eventually came to a stop. Perryman testified that, during the pursuit, she was traveling approximately sixty-five to seventy miles per hour and was losing ground at a quick rate.
Appellant was taken by ambulance to Grant Hospital, where he was treated for trauma. On January 1, 1989 in the afternoon, Columbus Police Officer Kenneth Shofter, a member of the accident investigation squad, went to the hospital with his supervisor and another detective to attempt to interview appellant. At this point in time, appellant had not been arrested or charged. Prior to talking with appellant, they advised him of his constitutional rights. Appellant read and signed the waiver form. Appellant told them he did not remember the accident and that he had had no driver's license for the past three years. Appellant told them, voluntarily, that on the day of the accident he had drunk a fifth of whiskey and a six-pack of beer. Appellant also informed them that his car could easily go eighty miles per hour.
Dr. Barnes, a surgeon on call for the trauma service at Grant Hospital on the night of the accident, testified that blood is generally drawn from trauma patients for testing. He also testified that the blood-alcohol level test performed on appellant indicated that his level was .221, and that anything over .100 was considered evidence of intoxication. Additionally, Barnes smelled alcohol on appellant's breath and believed that appellant was intoxicate
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