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West v. Com.6/15/2004
James Darrell West (appellant) was convicted in a bench trial of one count of aggravated involuntary manslaughter, in violation of Code § 18.2- 36.1, one count of involuntary manslaughter, in violation of Code § 18.2-36, and one count of driving under the influence, in violation of Code § 18.2- 266. On appeal, he contends the trial court violated his Fifth Amendment right against double jeopardy by convicting him of both aggravated involuntary manslaughter and involuntary manslaughter. Appellant also contends the evidence was insufficient to convict him of the three charges. For the reasons stated, we affirm his convictions.
BACKGROUND
At about 9:00 p.m. on April 17, 2002, Tasharanda Gainey was driving her car westbound on Interstate 64 in Henrico County, near the interchange with Interstate 295. Gainey's cruise control was set at 70 miles per hour, and the posted speed limit was 65 miles per hour. An "older model" burgundy car that looked like "some kind of Firebird or Oldsmobile" passed her in the right-hand lane "like [her car] was standing still." Gainey exclaimed to her passengers that the car had to be "doing at least a hundred." At trial, Gainey estimated the car's speed was around 90 miles per hour. Gainey observed the taillights of the red car for ten to fifteen seconds before it *332 disappeared from view. She never saw the car's brake lights activate.
About fifteen seconds after the red car disappeared, Gainey saw headlights in front of her. She saw a vehicle "twisting" and then "go[ing] up in the air and then in the median." She stopped her car on the right side of the interstate and got out. Gainey observed a tan pickup truck and went to investigate, but before she neared the truck, Trooper Eric Kingston arrived. Kingston had also observed "two headlights that appeared to tumble into the center median," so he had called his dispatcher at 9:19 p.m. and stopped to investigate. The driver of the tan pickup, Burlia Gene Jenkins, Jr., died of injuries sustained in the accident.
As the officer walked Gainey back to her car, she saw a burgundy bumper lying in front of her car. They then noticed a burgundy car underneath the overpass for Interstate 295. At trial, Gainey expressed "no doubt" that this car was the same one that had passed her moments earlier. A license plate, still attached to the bumper, matched the remaining license plate on the burgundy vehicle.
The burgundy car proved to be an Oldsmobile with "extensive damage to the front end" and a missing front bumper. The car apparently had run into a support pillar for the overpass. Appellant was the only person in the car, and he was injured. At trial, Kingston explained:
Mr. West was injured and entrapped [sic] in the vehicle, and I detected a strong odor of an alcoholic beverage about his person and began to try and speak to him, but he was very, very groggy, non-coherent, didn't seem to understand what I was saying to him.
* * * * * *
[I]mmediately as I approached the vehicle, I detected a very strong odor of alcohol. The alcoholic beverage odor was coming from his person and the vehicle, being that he was still [sic] in the vehicle, I couldn't separate the two odors at that time. It wasn't until fire and rescue had a significant amount of time working on him to free him from the *333 wreckage that he was put onto a stretcher, and at that time, I was still detecting a strong odor of alcoholic beverage about his person.
People at the hospital who treated appellant also testified that he smelled of alcohol that evening.
Kingston estimated the rescue squad spent at least twenty minutes removing appellant from his vehicle. Before an ambulance took appellant to MCV Hospital in Richmond, Kingston looked to see if any alcoholic beverages were inside the Ol
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