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State v. Fleming

Court of Criminal Appeals of Tennessee, Knoxville

March 22, 2018

STATE OF TENNESSEE
v.
KEVIN ALLEN FLEMING

          Session Date: September 19, 2017

          Appeal from the Criminal Court for Campbell County No. 16-654 E. Shayne Sexton, Judge

         After a bifurcated trial, a jury convicted the Defendant, Kevin Allen Fleming, of one count of driving under the influence ("DUI"), fourth offense, and three counts of aggravated vehicular homicide. The trial court sentenced the Defendant to an effective sentence of forty-two years in confinement. At the motion for new trial hearing, the parties agreed that the Defendant's DUI fourth offense conviction should have merged into his conviction for aggravated vehicular homicide conviction, reducing his sentence to an effective sentence of forty years. No amended judgment appears in the record. On appeal, the Defendant contends that: (1) the trial court erred when it denied his motion to suppress the blood draw evidence; (2) the trial court erred when it admitted the results from the blood draw because the evidence was not authenticated and the chain of custody was not established; (3) the trial court erred when it admitted autopsy photographs of the victims; (4) the State violated his Fifth Amendment right to remain silent; (5) the trial court erred when it found that Trooper James Fillers was an expert witness; (6) the trial court erred when it admitted the written report of expert Dr. Davis because the report contained hearsay; (7) the trial court erred when it sentenced him; (8) the evidence is insufficient to sustain his convictions; and (9) the cumulative errors by the trial court constitute reversible error. After review and for the reasons stated herein, we affirm the trial court's judgments. We also remand the case for entry of an amended judgment reflecting that the Defendant's DUI fourth offense conviction is merged with one of his aggravated vehicular homicide convictions.

         Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed and Remanded

          James A.H. Bell (at trial), Knoxville, Tennessee, and Jessica M. Van Dyke (on appeal), Nashville, Tennessee, for the appellant, Kevin Allen Fleming.

          Herbert H. Slatery III, Attorney General and Reporter; Zachary T. Hinkle, Assistant Attorney General; Jared R. Effler, District Attorney General; and Graham E. Wilson and Blake Watson, Assistant District Attorneys General, for the appellee, State of Tennessee.

          Robert W. Wedemeyer, J., delivered the opinion of the Court, in which Norma McGee Ogle and Timothy L. Easter, JJ., joined.

          OPINION

          ROBERT W. WEDEMEYER, JUDGE

         I. Facts

         This case arises from a single-vehicle accident that occurred on July 21, 2014, at 7:15 p.m. while the Defendant was driving and lost control of his vehicle, causing the death of the three passengers in his vehicle. A Campbell County grand jury indicted the Defendant, the driver and sole survivor of the accident, for one count of driving under the influence ("DUI"), fourth offense, and three counts of aggravated vehicular homicide.

         A. Motion to Suppress

         Officers who responded to the accident scene drew the Defendant's blood, the driver of the vehicle involved in the accident. His blood tested positive for alcohol, cocaine, and Hydrocodone. Before trial, the Defendant filed a motion to suppress this evidence, contending that he did not actually consent to the blood draw and that he could not consent to the blood draw because of his medical state after the accident.

         At a hearing on the motion to suppress, the parties presented the following evidence: John Tipton, an emergency medical technician with the Campbell County Emergency Medical Service, testified that he was trained to handle head trauma injuries. At scenes involving patients suspected of suffering from head trauma, Mr. Tipton would assess the subject using a Glasgow Coma Score ("GCS") This process involved three parts: (1) asking the patient his or her name, (2) asking where they are located, and (3) assessing whether they knew what event was going on. Mr. Tipton further explained that a GCS was a sliding scale from three to fifteen based upon a patient's verbal, eyes, and motor skills. Even if the patient was dead when he arrived, the patient would still have been a three on the scale. Someone who was alert and oriented was a fifteen on the scale.

         Mr. Tipton testified that he responded to the accident in this case, and he saw three people lying on the ground and one still in trapped in the vehicle. Mr. Tipton noted that the Defendant was close to what he termed the "collapse zone, " because he was only a few feet from the vehicle, which was on its side. Mr. Tipton called for assistance, stabilized the Defendant's spine, and pulled him away from the vehicle, which did ultimately collapse afterward.

         Mr. Tipton noted that the Defendant suffered injuries during the car accident, including swelling and a laceration near his right eye that necessitated suctioning. Mr. Tipton said that the Defendant knew that he was driving the vehicle at the time of the accident, what road he was on, who he was, that he had been in a wreck, and that he was in an ambulance. The Defendant offered that he had chronic back pain for which he took prescription Hydrocodone. He also said that he was not allergic to anything. Mr. Tipton gave the Defendant a GCS of fifteen out of fifteen. Mr. Tipton described the Defendant as compliant with him and said that he had no problems treating the Defendant.

         During cross-examination, Mr. Tipton testified that he was the first responder to approach the Defendant, along with a paramedic-in-training, Samuel Roach. He said that this accident occurred during daylight hours. The vehicle had obviously rolled over several times before coming to a stop against a tree. Three of the vehicle's occupants were no longer in the vehicle, either having been ejected or exiting on their own. Mr. Tipton responded to the Defendant first because the Defendant was in danger of being hurt if the vehicle collapsed.

         Mr. Tipton testified that the Defendant was covered in blood, especially on his face. The Defendant was blowing blood, which appeared to be coming from a deep laceration to his lip, out of his mouth. The Defendant's right eye was swollen shut. Mr. Tipton identified photographs taken of the Defendant at the hospital.

         Mr. Tipton said that, in the ambulance, the Defendant resisted being strapped down, saying he could not breathe. Mr. Tipton believed it was because the Defendant was swallowing blood. The Defendant repeatedly asked about his dog, asking who had possession of the dog. Mr. Tipton said that there was, in fact, a dog at the scene. Mr. Tipton noted that, at that point, the Defendant's blood oxygen level was 89%, which was lower than the normal 94%. Mr. Tipton said he started an IV to administer fluids until the helicopter arrived to transport the Defendant to the hospital.

         Mr. Tipton agreed that, after this incident, a Tennessee Highway Patrol ("THP") officer asked him to write a summary of what had transpired. Mr. Tipton complied and left his handwritten statement in the officer's box at the police station. Mr. Tipton recalled that he smelled the odor of blood coming from the Defendant during the forty minutes that he treated the Defendant. He did not recall the odor of alcohol coming from the Defendant.

         During redirect examination, Mr. Tipton testified that someone contained the dog at the scene. When he was treating the Defendant, the Defendant accurately recalled that there was a dog with him.

         Officer Joe Brown, with the THP, testified that he responded to the accident scene. He saw that a Dodge pickup truck had veered off the right side of the roadway, over corrected, came back into the roadway, went up an embankment, rolled several times, and came to a rest against a tree in a field on the left hand side of the roadway. Mr. Tipton said that he spoke with the Defendant at the scene, while the Defendant was in the ambulance. The Defendant told the officer that he lost control of his truck as he attempted to pass a car. Officer Brown said that he did not want to get in the way of medical personnel, so he ended their conversation.

         During cross-examination, Officer Brown testified that he filled out an alcohol influence report, indicating his suspicion that the Defendant was under the influence. Officer Brown said he was with the Defendant for between sixty and ninety seconds. He said that the Defendant's right eye was swollen, but his left eye looked okay. He also had a big cut to his lip as well as other cuts to his face. Officer Brown described the roadway where the accident occurred as very narrow with a steep grade and no shoulder. The officer clarified that the Defendant did not specifically say that he lost control of his vehicle, but the officer interpreted what he said to mean that the Defendant had lost control of his vehicle. Officer Brown said that he did not detect the odor of alcohol on the Defendant. The officer said that the Defendant did have bloodshot eyes.

         Officer Brown said that he spoke with the medical examiner who informed him that one of the passengers had died at the hospital. Officer Brown agreed that he did not attempt to obtain a search warrant for the blood draw. Officer Brown said that he saw the Defendant at the hospital but that the two did not speak, and he did not give the Defendant any citations.

         Randy Deadrick, a trooper with the THP, testified that he was dispatched to the University of Tennessee Medical Center with regard to this accident with instructions to obtain a blood draw. He located and spoke with the Defendant, who was in the emergency room. Trooper Deadrick said that the Defendant had bloodshot eyes, and when the Defendant recounted the accident, his speech was slurred. The Defendant told him that a cow had run out in front of him and that he had tried to dodge the cow. Officer Deadrick smelled what he thought was an alcoholic beverage on the Defendant's breath. Trooper Deadrick asked the Defendant if he was the driver, and the Defendant said yes. The Defendant offered that he had consumed a couple of alcoholic drinks at a bar and then left. Trooper Deadrick asked the Defendant if he would submit to a blood test to determine the alcohol and drug content of his blood, and the Defendant said yes. The Defendant also admitted that he had taken Hydrocodone earlier in the morning.

         Trooper Deadrick said he watched the lab draw the Defendant's blood at 9:45 p.m. and then placed it in a Tennessee Bureau of Investigation ("TBI") box to be tested. Trooper Deadrick filled out the TBI alcohol and toxicology request.

          During cross-examination, Trooper Deadrick agreed that, when he was dispatched, he was told that he had to do a mandatory blood draw. He further agreed that, on the implied consent form, he wrote that, because of the Defendant's "hospital trauma, " he was unable to sign the form. Trooper Deadrick then checked the box indicating that the blood draw was mandatory. The trooper testified that his failure to mark the box that said that the Defendant consented was a "Mistake." Trooper Deadrick reiterated that he found the Defendant "alert" and talking and said he smelled of beer.

         Trooper Deadrick agreed that his one-page statement, created close in time to these events, did not contain many of these details. He said, however, that he included all the details he remembered in his report, which was created some seven months after this incident.

         Bobby Smith, a sergeant with the THP, testified that he responded to this accident scene and was there for a very brief period of time. He said he went to the hospital and located the vehicle's occupants, one of whom had died. Sergeant Smith testified that he went to where the Defendant was being treated and left the room after determining that his injuries were to such an extent that he could not be interviewed.

         During cross-examination, Trooper Smith testified that he knew that night that Trooper Deadrick had requested a blood draw earlier that night from the Defendant.

         Melissa Fleming, who was married to the Defendant at the time of this accident, testified that there was a trooper in her husband's hospital room when she arrived at the hospital. She said that the trooper was not speaking to her husband. Ms. Fleming said that the Defendant was in a neck brace at the time and hooked up to "some things." She took pictures of him with her cell phone. Ms. Fleming said that she did not smell alcohol on the Defendant. Ms. Fleming said that the Defendant had difficulty talking due to his injuries. She said that there were times during that night that he became more alert and others that he seemed to drift in and out of total consciousness.

         During cross-examination, Ms. Fleming testified that she spoke with her husband while the trooper was in the room. She said that because the Defendant was "in and out" of consciousness, she was unsure whether he would have been able to consent to a blood draw when talking to the trooper. She said that when she spoke with him he was more coherent at some times than others.

         During redirect examination, Ms. Fleming testified that her husband was on Hydrocodone for chronic back pain.

          Based upon this evidence, the trial court denied the Defendant's motion to suppress.

         B. Trial

         The case proceeded to a bifurcated trial on the indictments. The State first attempted to establish the Defendant's guilt of DUI, first offense, and vehicular homicide. During this portion of the trial, the parties presented the following evidence: John Tipton responded to this accident on July 21, 2014, in his capacity as an Emergency Medical Technician ("EMT") with the Campbell County Emergency Medical Service ("EMS"). He testified that, when he arrived at the scene, he determined that the vehicle was still occupied by Darrell Carroll. He also noted that the Defendant was in an area termed the "collapse zone, " meaning he was in an area that was in danger of collapsing, so he responded to the Defendant first in order to move him to safety. The Defendant was "hurting" and did not say much. Mr. Tipton did a quick assessment and secured the Defendant in an ambulance. Mr. Tipton said that the Defendant stated that he was the driver the vehicle and that his vehicle had "come off the roadway." The Defendant asked about his dog that was at the scene, wanting to know if someone was taking care of it. The Defendant also asked about the occupants of his vehicle.

         Mr. Tipton described the roadway where the accident occurred as "horribly narrow." He said that one would have to be alert when driving on the roadway, in part because it is hard to maneuver. During the ambulance ride to the hospital, Mr. Tipton asked the Defendant if he was taking any medications, and the Defendant said he was taking Hydrocodone.

         Mr. Tipton identified a photograph of the truck involved in the accident, and he noted that the roof had been extricated off the truck.

         During cross-examination, Mr. Tipton said that he saw the Defendant's dog at the scene, and he identified a picture of the dog. Mr. Tipton identified a picture of the Defendant, which showed that he was bleeding from both his mouth and his eyes. The Defendant's right eye was swollen shut. The Defendant did not remember the accident, but knew that he had been in an accident. The Defendant repeatedly asked about his friends and his dog. Mr. Tipton did not smell alcohol on the Defendant and only smelled blood. Mr. Tipton noted that the Defendant's blood oxygen level was low, but Mr. Tipton had a hard time getting the Defendant to accept oxygen. He said that the Defendant's head injury was of the "kind of magnitude" that it made him disoriented.

         Joe Brown, a THP officer, testified that he arrived at the scene at around 7:30 p.m. on July 21, 2014. When he arrived, he saw a pickup truck lying on its side and medical personnel attending to a patient trapped inside the vehicle. He also saw medical personnel attending a man who was lying on the left side of the roadway and two other people who were already loaded into ambulances, one of whom was the Defendant. The trooper asked the Defendant what had happened, and the Defendant responded that he was attempting to pass a vehicle when his pickup truck ran off of the roadway. The Defendant did not mention any animal running into the roadway.

         Trooper Brown described the road where the accident had occurred as "very narrow." He said that it was possible for two cars to pass on the roadway but that one of the cars would be in the ditch line. Trooper Brown said that, from his preliminary investigation, it appeared that the pickup truck was traveling "fast" when it left the roadside on the right and went into the ditch. He said that it appeared that the driver had overcorrected and struck the embankment, which caused the vehicle to go into a roll. Trooper Brown identified a photograph of a Bud Light can that was located at the scene.

         During cross-examination, Trooper Brown testified that some of the damage to the vehicle was sustained from the "jaws of life" being used to extract the vehicle's occupants. The trooper agreed that he did not cite speed as a factor in his initial accident report. He said that, as part of his investigation, he did not try to calculate the Defendant's speed at the time of the accident. Trooper Brown said he assumed the Bud Light can came from the vehicle, but he was not sure. Trooper Brown clarified that the Defendant told him that he was attempting to pass a vehicle coming the opposite direction, toward him, at the time he lost control of his truck.

         Randy Deadrick, another trooper with the THP, testified that he was asked to go to UT Medical Center to retrieve a blood draw from the Defendant. Trooper Deadrick said that, at the time, he did not know the details of the accident. When he arrived at the hospital, he asked the Defendant what had happened. Trooper Deadrick said that the Defendant had watery, bloodshot eyes, had blood on him, smelled of beer, and was lying on a stretcher. The Defendant told the officer that a cow had run in front of his truck. He also told the officer that he had consumed a "couple" of alcoholic drinks earlier and that he had taken a Hydrocodone that morning. Trooper Deadrick was certain that the Defendant had not mentioned any dogs or other animals.

         Trooper Deadrick testified that, at this point, he asked the Defendant to submit to a blood test, and the Defendant agreed. The trooper explained the process of the blood sample retrieval, and he was present when the Defendant's blood was drawn. The trooper said that after the blood was drawn, he took it to the district office, entered it into evidence, placed it in the evidence locker or "drop box, " and left a copy of the paperwork with the evidence custodian, who then took it to the TBI crime laboratory.

          During cross-examination, Trooper Deadrick said that the Defendant had his eyes open and was talking to him. He was unsure if the Defendant's eyes swelled shut after their conversation. Trooper Deadrick said that he created a memorandum summarizing his interaction with the Defendant four months after the interview. He said that, in his report, he noted that the Defendant had bloodshot eyes, constricted pupils, and smelled of alcohol. He said that he asked the Defendant to submit to a blood test, and the Defendant agreed. Trooper Deadrick testified that he also obtained blood draws from the other occupants of the vehicle.

         Regina Aksanov, with the TBI crime laboratory, testified that her laboratory had a "drop box" where police officers could drop their blood evidence kits. At the end of each day, a specific evidence technician would then retrieve the kits from the drop box and store them in a secured vault in a refrigerator. In the following days, that same technician would open the boxes one at a time, look at the contents, document what was on the test tubes, and then assign the kit a unique laboratory number.

         At this point, the Defendant objected to the chain of custody of the blood sample. He specifically contended that the State had not offered the testimony of the person who had drawn the blood and argued that the State had not shown that Trooper Deadrick, in retrieving all four of the vehicle's occupants' blood, did not mix up the samples. The trial court overruled the objection, finding that the State had shown a legal chain of custody.

         Agent Aksanov then testified that she tested the Defendant's blood sample, which was collected at 9:45 p.m. The Defendant's blood tested positive for alcohol at a level of .07 percent. Agent Aksanov then explained that alcohol was a central nervous system depressant and it slowed down a person's senses. She said alcohol made a user's reaction times slower, made it harder for them to concentrate on more than one thing, caused slurred speech, and could make the user drowsy. She agreed that a blood alcohol level of .08 percent was the presumptive level of intoxication but said that one could be impaired at a "much lower" level.

         During cross-examination, Agent Aksanov testified that, based upon the condition of the blood before testing, which she said had not clotted or degraded, she assumed that the instructions for obtaining and preserving the blood sample were followed. She said that she was required to go by what was labeled on the tubes as to whom the blood belonged, and she acknowledged that the blood of three individuals from the truck were taken within a fifteen minute period.

         Stephanie Dotson, with the TBI crime laboratory, testified as an expert in forensic drug analysis and identification that she tested the Defendant's blood. She said that the Defendant's blood tested positive for cocaine, cocaethylene, and also Hydrocodone. Agent Dotson testified that Hydrocodone was a central nervous system depressant and that cocaine, while affecting people differently, caused alertness and sometimes anxiety, confusion, restlessness, tremors, and insomnia, among other things. Cocaethylene, she explained, was a chemical the body produced when cocaine and alcohol were consumed simultaneously. She said that cocaethylene was "just as potent as [c]ocaine." She said it had a longer half-life, meaning that it would remain in the blood longer and produce euphoria longer in the body. Agent Dotson said that she was unable to quantify the amount of cocaine and cocaethylene because those substances are not stable in the blood, making them difficult to quantify.

         During cross-examination, Agent Dotson testified that she did not quantify the amount of Hydrocodone in the Defendant's blood, although that was possible. She explained that she had "issues" with her instrument, which made her only able to report that it was positive and not the quantity.

         Gary Michael Lees testified that he had lived in the area of the accident for over thirty years. He said that, around the time of this accident, he was working on a broken-down tractor. Mr. Lees said that, around 6:00 p.m., he heard a vehicle "under hard acceleration for a few seconds." He then heard tires sliding or going sideways on the roadway, followed by an impact, and a car horn continuously sounding. Mr. Lees said that he went to his garage and got on his motorcycle and rode toward the noise. He followed the sound of the horn toward the accident site. When he arrived, he saw a man in the road walking and asking for help. Mr. Lees told him to get out of the road and sit down.

         Mr. Lees testified that he could see a vehicle on its side on the passenger side. He saw a man hanging from the driver's seat by a seatbelt or a shoulder harness. Mr. Lees called 911 but did not return to the accident scene. He said that the accident scene was "so bad" that there appeared to be nothing that he could do to help. He said that, as he called 911, he heard sirens approaching the area of the accident.

         Mr. Lees testified that the road where the accident occurred was a "bad road." He said that, at most, one could safely travel twenty miles per hour. He said that the road was too narrow to safely accelerate quickly.

         During cross-examination, Mr. Lees testified that he did not see any trash or beer cans in the area of the accident but that he had picked up beer cans on that road many times.

         James Fillers, a trooper with the THP, testified as an expert in accident reconstruction. He identified a scaled diagram of the accident scene that showed tire marks from the Defendant's vehicle. He said that the roadway was less than fifteen feet wide. Trooper Fillers testified that the Defendant's vehicle came to a rest 175 feet after it left the roadway. He said that, due to the dynamics of the crash, he could not determine the exact speed of the vehicle at the time that the Defendant lost control. He opined, however, that speed was a factor in the accident.

         During cross-examination, Trooper Fillers testified that the posted speed limit of the ...


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