Court of Criminal Appeals of Tennessee, Knoxville
Session July 22, 2014
Appeal from the Criminal Court for Knox County No. 99372 Steven Sword, Judge
Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany Faughn, Assistant Attorney General; Randall E. Nichols, District Attorney General; and Jamie Carter, Assistant District Attorney General, for the appellant, State of Tennessee.
Mark Stephens, District Public Defender, and Jim D. Owen, Assistant Public Defender, Knoxville, Tennessee, for the appellee, Corrin Kathleen Reynolds.
Timothy L. Easter, Sp. J., delivered the opinion of the Court, in which Robert W. Wedemeyer, J., joined. James Curwood Witt, Jr., J., filed a separate concurring opinion.
TIMOTHY L. EASTER, JUDGE
Factual and Procedural Background
While driving one night in October 2011, Defendant was involved in a single-car accident. Defendant and one of her passengers were injured, and the other two passengers were killed. Defendant was subsequently charged with two counts of vehicular homicide by intoxication, one count of vehicular assault, one count of reckless endangerment, one count of driving while intoxicated ("DUI") per se, and three alternative counts of DUI. Defendant filed several motions to suppress, and the trial court held two hearings. At the first hearing, held on April 5, 2013, the following proof was adduced:
Officer Lee Strzelecki of the Knox County Sheriff's Office testified that, in October 2011, he was a member of the "crash reconstruction team." On the night of October 29, 2011, he was paged and given information about "a single vehicle crash with multiple occupants and . . . possibly two deceased individuals." In response, he reported to the University of Tennessee Hospital, to which the two surviving victims of the accident had been transported. He stated that approximately thirty minutes elapsed between his page and his arrival at the hospital. He explained,
I had been in communication with the other members of the team, and I had the names of the two survivors that were transported to UT, [Defendant] and the other – the individual, and I proceeded to make contact with both of them and decide if I needed to get blood draws, and as there were two confirmed fatalities, it would have been mandatory under our investigation.
At the hospital, he found Defendant whom he described as "on a gurney waiting to be – she either was waiting to be x-rayed or came from x-ray, and she was alert and conscious and was talking to [him]." Officer Strzelecki testified that he "only was able to have a brief discussion because there was a lot of commotion in the ER, but she stated that she had been driving and that everybody in the car had been drinking." Officer Strzelecki performed a horizontal gaze nystagmus ("HGN") test on Defendant, and Defendant "exhibited all six clues" indicating that she was under the influence of a depressant such as alcohol. Officer Strzelecki testified that he asked Defendant if she would submit a blood sample and that Defendant responded, "Do whatever you have to do." Approximately fifteen minutes later, a phlebotomist drew a blood sample from Defendant in Officer Strzelecki's presence.
During voir dire by defense counsel, Officer Strzelecki acknowledged that, if taken in doses that could impair, midazolam could cause the HGN test to indicate impairment. He stated that he did not know that Defendant had been given midazolam when he administered the HGN test. He acknowledged that it was "possible" that the midazolam could have caused the HGN results.
In conjunction with Officer Strzelecki's direct testimony, the trial court admitted into evidence without objection a copy of Officer Strzelecki's curriculum vitae. This document reflected that Officer Strzelecki was a DUI instructor for the Knox County Sheriff's Office Training Academy and DUI task force member; that he had made more than 350 DUI arrests; and that he was an instructor in standard field sobriety testing and "[a]ssist[ed] officers in better understanding the legal environment for DUI enforcement so they will become more skillful in DUI detection and deterrence."
On cross-examination, Officer Strzelecki stated that, while he was driving to the hospital, he was speaking with "several of the officers at the scene" as well as dispatch. He testified that he did not administer any Miranda warnings to Defendant. Nor did he read to her the "implied consent form, " explaining, "If a person consents, the procedure is we can get a blood draw. If the person refuses, at that point the implications of the implied consent violation are read to that person, and they're given another opportunity if they want to change their mind and decide to consent." He acknowledged that he spoke with the surviving passenger before he spoke with Defendant, and the passenger told him that Defendant had been driving. Asked whether Defendant's consent was the reason for the blood draw, Officer Strzelecki answered, "The consent and the fact that we're – it was a double fatality. And also I smelled the alcohol and her admission of drinking and being the driver." He stated that he believed he had "a reasonable suspicion" that Defendant was driving while impaired.
After this initial hearing, the trial court issued a written order in which the court summarized the testimony of Officer Strzelecki. Based on the trial court's assessment of the facts as developed at the hearing, the trial court determined Defendant gave actual consent to the blood draw. The trial court drew the following conclusions of law:
Neither side presented much evidence or argument concerning the validity of the oral consent given by the defendant. The only evidence the court has to consider is the testimony of Officer Strzelecki, the limited value of the late filed medical records,  and the absence of any other proof to the contrary. Although the statement, "Do whatever you have to do" in response to being asked for a blood sample is not a specific statement of consent, the question asked was specific. The officer asked the defendant if he could take a sample of her blood. The circumstances surrounding this question and response indicate that it was a knowing and voluntary consent. The defendant continued to acquiesce in the act of taking two vials of her blood after the request. There is no indication that she ever expressed any disagreement with the officer's interpretation of the statement as consent to draw blood or asked to stop the procedure.
The defendant relies on the medical records to show that she could not have given consent because of her injuries. However, portions of the records indicate that the defendant was alert and communicating with EMTs at the scene and in the helicopter. In addition the ER records report that she was alert there, too. She was able to communicate with the staff. Medication she had been given calmed her down and made her appear to be sleeping. However, the records indicate that by [10:25 p.m.] she was more alert and moving all extremities. The court finds that officer's testimony to be credible regarding his conversation with the defendant. Based upon her demeanor and responses to the officer, the court finds that the defendant gave oral consent to have the blood sample taken.
As to the issue of whether the Defendant had given implied consent to the blood draw, the trial court drew the following conclusions of law:
The relevant [statutory] language [of Tennessee Code Annotated section 55-10-406] is that an officer may not administer a chemical test pursuant to this section without reasonable grounds to believe that (1) an individual was driving under the influence, and (2) a chemical test will reveal evidence that the individual was driving under the influence. The court agrees that if the officer was relying upon this statute to obtain the blood, then he must have first had reasonable grounds. However, the court finds that the blood draw was not conducted pursuant to this section. The blood was taken pursuant to a completely separate consent expressly given by the defendant, as stated above.
In sum, the trial court denied Defendant's motion to suppress upon its finding that she had given actual consent to the blood draw. The trial court also stated in its order that it was "not relying on exigent circumstances in the present case."
In response to the trial court's denial of her motion to suppress, Defendant filed on July 29, 2013, another motion to suppress "due to additional medical evidence" and requested another hearing. At the second hearing, conducted on August 30, 2013, the State introduced Defendant's medical records provided by the University of Tennessee Medical Center and covering the period October 29, 2011, to November 5, 2011. These records were admitted without objection. Additionally, the following proof was adduced:
John Burr Robertson, Jr., M.D., a board-certified psychiatrist, was prepared to offer testimony "as to the capacity of [Defendant] to have given voluntary, knowing, and intelligent consent to a blood draw." In preparing to testify, he had reviewed some of Defendant's medical records, specifically those generated after the accident. Dr. Robertson testified that the ambulance report indicated that Defendant had "contusion, abrasion, head injury, fracture, [and] dislocation." The report also indicated that Defendant had "stated she could not see out of right eye" and that she was "screaming she was deaf." Her level of consciousness was "alert." Dr. Robertson agreed that Defendant's injuries were "severe."
EMS transferred Defendant to Life Star and, shortly after she was loaded onto the helicopter, Defendant was given four milligrams of morphine at 9:28 p.m. and two milligrams of midazolam (Versed) at 9:29 p.m., both drugs administered intravenously. Dr. Robertson testified about the effects of these drugs:
We can imagine she was in a lot of pain, a lot of psychological shock. She'd just had a head injury too, so she's probably a little bit out of it, just a little confused by everything.
The morphine controls pain, has a calming effect, has a euphorigenic effect, makes you feel good. The midazolam has – has a calming, disinhibiting effect so that the person is – is gentle and quiet.
Asked to clarify what he meant by "disinhibiting, " Dr. Robertson continued: "Basically, the disinhibition is, you think about after you've had a couple of drinks of alcohol you might say something you normally wouldn't say, become disinhibited about what you say, what you do. Midazolam, the benzodiazepines, have similar effects to alcohol in that way." Dr. Robertson explained that the midazolam was used to enhance a patient's compliance.
Dr. Robertson testified that, according to the emergency room nurse's notes, Defendant was delivered to the emergency room at 9:35 p.m., at which time she was described as "alert" but "deaf and unable to hear verbal commands." Accordingly, "[c]ommands [were] written on paper and shown to patient." Defendant became combative and was thrashing her limbs, so medical personnel applied restraints and administered, intravenously, two more milligrams of morphine and two more milligrams of midazolam at 9:45 p.m. The emergency room nurse's notes indicated that, after the midazolam was given, Defendant "became calm and appears to ...