           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT JACKSON

                        OCTOBER 1998 SESSION
                                                   FILED
                                                  December 21, 1998

                                                   Cecil Crowson, Jr.
                                                   Appellate C ourt Clerk
STATE OF TENNESSEE,             )
                                )    C.C.A. NO. 02C01-9710-CC-00416
           Appellee,            )
                                )    FAYETTE COUNTY
VS.                             )
                                )    HON. JON KERRY BLACKWOOD,
STACY D. WILLIFORD,             )    JUDGE
                                )
           Appellant.           )    (Aggravated Vehicular Homicide,
                                     Vehicular Assault, Driving Under the
                                     Influence, Driving on Revoked
                                     License, and Leaving the Scene of an
                                     Accident)


FOR THE APPELLANT:                   FOR THE APPELLEE:


ANDREW S. JOHNSTON                   JOHN KNOX WALKUP
108 East Court Square                Attorney General & Reporter
Somerville, TN 38068
                                     PETER M. COUGHLAN
                                     Asst. Attorney General
                                     John Sevier Bldg.
                                     425 Fifth Ave., North
                                     Nashville, TN 37243-0493

                                     ELIZABETH T. RICE
                                     District Attorney General
                                     302 Market St.
                                     Somerville, TN 38068




OPINION FILED:____________________



AFFIRMED


JOHN H. PEAY,
Judge
                                     OPINION



              The defendant was convicted by a jury of aggravated vehicular homicide,

vehicular assault, driving under the influence, driving on a revoked license, and leaving

the scene of an accident. Following a sentencing hearing, the defendant received an

effective sentence of twenty years. The defendant now appeals, raising the following

issues for review:

       I. Whether the trial court erred in denying the defendant’s motion to
       suppress statements on the theory the defendant was in custody but was
       not read his Miranda warnings?

       II. Whether the defendant’s due process rights were violated by T.C.A. §
       55-10-401, which allows an inference that previous DUI offenders are
       intoxicated if their blood alcohol content is .08% or higher, whereas it may
       be inferred that first-time offenders are intoxicated only when their blood
       alcohol content is .10% or higher?

       III. Whether the trial court erred in charging the jury that they could infer
       intoxication by a .08% or higher blood alcohol content, since this instruction
       reveals to the jury that the defendant has been previously convicted of
       DUI?

       IV. Whether the evidence is sufficient to sustain the defendant’s
       convictions for aggravated vehicular homicide, vehicular assault, and
       leaving the scene of an accident?

Finding no reversible error, we affirm the trial court’s judgments.



              Around 6:50 p.m. on October 10, 1996, Annette Pittman and her young

daughter were traveling between forty-five and fifty miles per hour on Bateman Road in

Fayette County, headed north toward Highway 57. As Ms. Pittman crested a hill, her

young daughter’s yell alerted her to a motorbike, without any lighting, driving

approximately fifteen miles per hour weaving in the middle of the lane. Two boys in their

early teens were riding the motorbike, but neither looked back when Ms. Pittman’s

headlights illuminated them, even though her car came within five to six feet of hitting

them. She followed them at a distance, and when she came to a safe place to pass



                                             2
them, she did.



                Approximately fifteen minutes later, at around 7:05 p.m., the defendant was

driving his Camaro westbound on Highway 57. The speed the defendant was traveling

is unknown. The night was dark and clear, there were no street lights but nothing to

obstruct a driver’s view, and the pavement was dry. The defendant struck two boys,

Ronald Phillip Webb and Brandon Robbins, who were riding a motorbike traveling

between fifteen to thirty miles per hour1 westbound approximately one to three feet inside

the pavement’s white line. The motorbike became wedged underneath the defendant’s

car and the boys were thrown fifteen to twenty feet from the road. The collision left no

skid marks on the road.



                The defendant continued driving. A man driving eastbound on Highway 57

passed the defendant’s Camaro after the collision, noticed the motorbike lodged under

the Camaro’s body, and smelled antifreeze and burning rubber. According to the man,

the defendant was traveling at a “normal highway speed, maybe faster” and without any

headlights. The record is silent as to whether the defendant’s headlights were on at the

time of the collision. It is also unknown how fast the defendant was traveling at the time

of the collision.



                The defendant drove to his mother’s house, which was one mile from the

scene of the collision. Because the motorbike remained lodged under the Camaro, the

motorbike’s tire left a mark as it dragged on the road from the point of impact to the

defendant’s mother’s house. At his mother’s house, at 7:14 p.m., the defendant called

911. He returned to the scene by 7:55 p.m. driven by a friend in another car; he left his


         1
           Robbins first testified they were traveling approximately 20 to 30 m.p.h. at the time of the
collision, but then he agreed that they were traveling approximately the same speed on Highway 57 as
they had been on Bateman Road, which another witness testified was approximately 15 m.p.h.

                                                    3
Camaro, with the dirt bike lodged still underneath of it, at his mother’s house.



              Trooper Perkins of the Tennessee Highway Patrol arrived on the scene at

7:35 p.m., approximately half an hour after the collision occurred. Trooper Perkins did

not see the defendant at the scene until approximately 7:50 or 7:55 p.m. The defendant

was very emotional, appeared to be upset, and began to cry. He told Trooper Perkins

that he was the driver of the car that hit the motorbike. He said he did not see anything,

but he felt and heard a “thug” and decided to continue driving to his mother’s house. He

admitted he had had a couple of beers earlier that day. A records search revealed that

the defendant’s driver license had been suspended.



              Upon request, the defendant submitted to a blood test. The paramedic who

administered the blood test observed the defendant’s demeanor as very scared, afraid,

and nervous. The defendant did not appear to the paramedic to be intoxicated, but the

paramedic admitted that there have been previous times when he mistakenly thought a

patient was not drunk. At least one police officer at the scene smelled alcohol on the

defendant’s person and believed the defendant “was obviously under the influence.” The

defendant’s blood test later revealed a blood alcohol content of .16%.



              Webb, who was fifteen years old at the time of the collision, died from

multiple injuries sustained in the collision. His toxicology screen was negative for alcohol

or drug use. Robbins, thirteen years old at the time of the collision, was severely injured

in the collision. Robbins, who did not have a license to operate the motorbike on public

roads, was operating the motorbike at the time of the collision; Webb was sitting behind

him. At trial, Robbins admitted they had driven north on Bateman Road toward Highway

57, and then were headed westbound on Highway 57 when the collision occurred.




                                             4
                A local police officer had warned the boys one to two months prior to the

collision about the dangerous manner in which they were riding the motorbike because

they were causing cars to weave in order to avoid them. The local police had also

previously warned the boys not to ride their bike on the city streets because the bike was

not equipped with proper turn signals, a windshield, or a license plate and the brake lights

were not working.2 Robbins admitted that the reason they were traveling so slowly that

evening was because they were having mechanical problems with the motorbike, but he

insisted that the motorbike’s headlight and taillight were working.



                At trial, there was evidence suggesting the boys might have used marijuana

prior to the collision. A seventeen-year-old friend of Robbins testified that Robbins had

told her he and Webb had been smoking marijuana prior to the collision and was “high”

at the time of the collision. She admitted she had known this information for nine months

and could not explain why she decided three days prior to trial to disclose the information

to the defense attorney but not the state attorney or any law enforcement officer. She

also admitted she knew the defendant, but she insisted she did not know him well.

Robbins denied using any drugs or alcohol that afternoon, and he denied telling anyone

he had used marijuana and was afraid his parents would find out. Robbins also denied

that he had rolling papers on his person at the time of the collision, but a local police

officer found rolling papers near him after the collision. Robbins was not subjected to a

drug or alcohol test because Trooper Perkins was not aware rolling papers were found

at the collision scene.



                First, the defendant argues that the trial court erred in failing to suppress

the statements he made to Trooper Perkins at the collision scene because he was in


         2
           The chief of the local police testified that he had previously checked the motorbike’s brake
lights and discovered they were not working, although he admitted he did not know whether that problem
had been repaired prior to the collision.

                                                   5
custody but was not advised of his Miranda rights. The defendant also contends that the

results of his blood alcohol test should have been suppressed since the only grounds for

administering the test under T.C.A. § 55-10-406(a)(1) was the defendant’s statement to

Trooper Perkins.



             Miranda v. Arizona bars the admission of any statements elicited from a

defendant through police-initiated custodial interrogation unless the defendant, prior to

making the statement, was warned of certain rights and knowingly waived those rights.

Miranda v. Arizona, 384 U.S. 436 (1966); see, e.g., Edwards v. Arizona, 451 U.S. 477

(1981); State v. Huddleston, 924 S.W.2d 666, 669 (Tenn. 1996); State v. Bates, 804

S.W.2d 868 (Tenn. 1991). “Custodial interrogation” is defined as “questioning initiated

by law enforcement officers after a person has been taken into custody or otherwise

deprived of his freedom of action in any significant way.” Miranda, 384 U.S. at 444. In

other words, Miranda warnings are required when a suspect has been formally arrested

or when his or her freedom of movement has been restrained to the degree associated

with a formal arrest. California v. Beheler, 463 U.S. 1121 (1983); State v. Cooper, 912

S.W.2d 756 (Tenn. Crim. App. 1995).



             In assessing whether an individual is “in custody,” the totality of the

circumstances must be examined to determine whether a reasonable person would

consider his or her freedom of movement restrained to the degree associated with formal

arrest. State v. Anderson, 937 S.W.2d 851 (Tenn. 1996). Factors relevant to this

determination include the following:

      the time and location of the interrogation; the duration and character of the
      questioning; the officer’s tone of voice and general demeanor; the suspect’s
      method of transportation to the place of questioning; the number of police
      officers present; any limitation on movement or other form of restraint
      imposed on the suspect during the interrogation; any interactions between
      the officer and the suspect, including the words spoken by the officer to the
      suspect, and the suspect’s verbal or nonverbal responses; the extent to
      which the suspect is confronted with the law enforcement officer’s

                                           6
       suspicions of guilt or evidence of guilt; and finally, the extent to which the
       suspect is made aware that he or she is free to refrain from answering
       questions or to end the interview at will.

Id. at 855. Contrary to the defendant’s suggestion, it is immaterial that “the trooper knew

that he was dealing with an individual that he would likely charge with a crime” since a

defendant’s Fifth Amendment rights are no longer triggered by the defendant being the

investigation’s focus. See, e.g., Stansbury v. California, 511 U.S. 318 (1994); see also

Anderson, 937 S.W.2d at 854; Cooper, 912 S.W.2d at 766.



              Here, Trooper Perkins arrived at the scene approximately one-half hour

after the collision occurred. Approximately twenty minutes later, the defendant voluntarily

returned to the scene, approached Trooper Perkins, and disclosed to him he was the

driver of the car involved in the collision. Trooper Perkins asked the defendant to wait a

few minutes by his patrol car while he finished identifying the victims and notifying their

parents. The defendant was not handcuffed, placed in the back of the patrol car,

escorted or guarded by another police officer, or otherwise restrained. Approximately

fifteen minutes later, Trooper Perkins approached the defendant and began questioning

him about what happened. The record does not indicate that any officer other than

Trooper Perkins was involved in the questioning of the defendant, nor does it indicate that

either party became belligerent or confrontational during the questioning. The defendant

stated he did not see anything, but heard a “thug” noise. When asked, he also stated he

had been drinking alcohol. Trooper Perkins asked him one time to submit to a blood test,

telling him he was not required to consent, but the defendant agreed to the test. The

defendant was not advised of his Miranda rights. At no time, however, was the defendant

told he must remain at the scene, answer questions, or submit to a blood test. In fact,

according to the defendant’s testimony at the suppression hearing, the defendant had

returned to the scene voluntarily to give his account of the incident; he testified he had

no problem waiting until Trooper Perkins could question him. After the questioning


                                             7
concluded, the defendant went home.



              Considering the totality of these circumstances, the defendant was not in

custody at the time he answered Trooper Perkins’ questions. Because Miranda warnings

are constitutionally required only where a defendant is subjected to police-initiated

custodial interrogation, there was no basis to suppress the defendant’s statements to

Trooper Perkins. See Stansbury, 511 U.S. at 318; Anderson, 937 S.W.2d at 854.



              The defendant also contends that his blood test results should have been

suppressed. The defendant relies upon T.C.A. § 55-10-406 for the proposition that a

police officer must have “reasonable grounds to believe” that a defendant was driving

under the influence of an intoxicant before requesting a blood test. According to the

defendant, the only “reasonable grounds” Trooper Perkins had was his statement he had

been drinking beer earlier that day, which he contends was obtained in violation of the

Fifth Amendment and thus cannot serve as a proper basis for requesting a blood test

under § 55-10-406.     Even assuming the defendant’s interpretation is correct, his

argument is moot since we have concluded that the defendant’s Fifth Amendment rights

were not violated and the evidence shows the defendant consented to the blood rest.



              Next, the defendant challenges T.C.A. § 55-10-408(b), claiming that a jury

instruction pursuant to § 55-10-408(b) violated his constitutional right to due process of

law. DUI is proven by a showing that a person was in physical control of a motor vehicle

on a public road or any premises frequented by the public while “(1) Under the influence

of any intoxicant, marijuana, narcotic drug, or drug producing stimulating effects on the

central nervous system; or (2) The alcohol concentration in such person’s blood or breath

is ten-hundredths of one percent (.10%) or more.” T.C.A. § 55-10-401(a)(1)-(2) (Supp.

1996). Generally, for the purpose of proving intoxication under § 55-10-401(a)(1), it may


                                            8
be inferred that a defendant’s ability to drive was sufficiently impaired if his or her blood

alcohol content was .10% or higher. T.C.A. § 55-10-408(a) (Supp. 1996). If the

defendant has at least one previous DUI conviction, however, a .08% blood alcohol

content is sufficient to infer intoxication and impaired ability to drive, in violation of § 55-

10-401(a)(1). T.C.A. § 55-10-408(b) (Supp. 1996).



              In this case, the trial court instructed the jury, pursuant to § 55-10-408(b),

as follows: “Evidence from the test that there was at the time alleged eight-hundredths

of one percent or .08 or more by weight of alcohol in the defendant’s blood creates an

inference that defendant was under the influence of such intoxicant, and that his ability

to drive was impaired.”       The defendant argues that this instruction violated his

constitutional right to due process and that § 55-10-408 creates disparate treatment of

previously convicted DUI offenders, whose intoxication may be inferred at .08%, as

compared to first-time DUI offenders, whose intoxication may be inferred only after

reaching .10%. The defendant’s challenge to the constitutionality of § 55-10-408(b) must

fail, however, as the defendant lacks standing. Because the defendant’s blood test result

was a .16%, the jury would have been entitled to infer the defendant was intoxicated

under the higher .10% standard of § 55-10-408(a), regardless of the existence of a lower

.08% standard for previous DUI offenders under § 55-10-408(b). In other words, even

if the trial court had not instructed the jury on the .08% inference pursuant to § 55-10-

408(b) and even if there were no disparity between the inferences for first-time DUI

offenders and previous DUI offenders, the jury would still have been entitled to infer that

the defendant was intoxicated because his blood alcohol content exceeded the higher

.10% level. Because it cannot be said that the .08% inference under § 55-10-408(b)

operated to deprive the defendant of his rights, the defendant lacks standing to challenge

its constitutionality. See State v. Purkey, 689 S.W.2d 196 (Tenn. Crim. App. 1984).




                                               9
              The defendant also argues that the trial court’s instruction on the .08%

inference constituted reversible error because it “revealed to a knowledgeable juror(s)

that the [defendant] had been convicted of prior DUI’s [sic] and . . . put said juror(s) on

notice of evidence that would otherwise be inadmissible at trial.” The jury instruction

pursuant to § 55-10-408(b) advised the jury it could infer intoxication and that the

defendant’s ability to drive was impaired from evidence of a blood alcohol content of .08%

or higher. As far as the jury was instructed, the only purpose of the .08% standard was

to infer intoxication and impaired ability to drive and nothing else. The jury was not

instructed that the .08% standard applies only to defendants previously convicted of DUI

or that the defendant in this case had been previously convicted of DUI. The defendant

does not identify any “knowledgeable jurors” or even contend that any of the jurors in this

case were “knowledgeable.”



              In the absence of evidence to the contrary, a jury is presumed to follow the

instructions given to it. State v. Blackmon, 701 S.W.2d 228, 233 (Tenn. Crim. App.

1985). Just as a jury may be presented with evidence of a defendant’s prior bad acts and

be instructed that they are to consider that information only as it relates to motive or intent

or some other admissible purpose, we must assume that the jury in this case used the

.08% standard for nothing more than to infer the defendant’s intoxication and impaired

ability to drive, rather than to speculate whether the defendant might have been

previously convicted of DUI and allow that speculation to affect their verdict in this case.

Thus, we must conclude that the trial court did not err in instructing the jury pursuant to

§ 55-10-408(b), a valid statute, as it is required to do. Even if error occurred, it would be

harmless because the jury could have inferred that the defendant, who had a .16% blood

alcohol content, was intoxicated even under the .10% standard for first-time offenders in

§ 55-10-408(a). Tenn. R. Crim. P. 52(a)(only errors affecting the result of trial on the

merits may constitute reversible error).


                                              10
              Finally, the defendant challenges the sufficiency of the evidence, arguing

it is insufficient to sustain his convictions for aggravated vehicular homicide, vehicular

assault, and leaving the scene of an accident.



              As it pertains to the charges in this case, aggravated vehicular homicide is

the reckless killing of another as the proximate result of the driver’s intoxication while

operating a vehicle. T.C.A. § 39-13-213(a)(2). Similarly, vehicular assault occurs when

a person causes serious bodily injury to another as the proximate result of his or her

intoxication while operating a vehicle. T.C.A. § 39-13-106(a). The defendant contends

that due to the boys’ actions in operating the motorbike on the road under dangerous

conditions when they had previously been warned not to do so, the death and the injury

that occurred in the collision were not a proximate result of his intoxication. Rather, the

defendant argues that most of the factors that caused the collision were “brought to bear

by the victims themselves.”      As the State points out, however, Ms. Pittman had

encountered the boys on the street only minutes before the defendant struck the boys.

The circumstances under which Ms. Pittman encountered the boys were similar to the

circumstances under which the defendant encountered the boys, with one notable

exception: Ms. Pittman was not drunk, while the defendant had a blood alcohol content

of .16%. Because Ms. Pittman, who was not drinking, was able to avoid a collision while

the defendant, who was drinking, was not, the evidence was sufficient for the jury to

conclude that the defendant’s intoxication was the proximate cause of the collision that

killed Webb and injured Robbins.



              The defendant also contends that regardless of the .16% result from the

blood test taken approximately one hour after the collision, there was no proof he “had

consumed any alcohol or had any alcohol in his blood at the time of the subject accident.”

To the contrary, the defendant admitted to Trooper Perkins that he had consumed two


                                            11
beers prior to the collision. Moreover, given that there was no evidence that the

defendant consumed alcohol after the collision but before the blood test, the .16% blood

alcohol content, coupled with the defendant’s admission of drinking prior to the collision,

was sufficient proof from which the jury could infer that the defendant was under the

influence of alcohol at the time the collision occurred.



              With regard to the defendant’s challenge to his conviction for leaving the

scene of the accident under T.C.A. § 55-10-101, the defendant contends that because

he left the scene only to call 911 and then returned “forthwith,” his actions did not violate

§ 55-10-101. The record shows otherwise.



              Section 55-10-101(a) provides that drivers of vehicles involved in accidents

resulting in injury or death “shall immediately stop such vehicle at the scene of such

accident or as close thereto as possible, but shall then forthwith return to and in every

event shall remain at the scene of the accident until the driver has fulfilled the

requirements of § 55-10-103.”        Section 55-10-103(a) requires drivers to provide

identifying information to other drivers involved in the collision and “render to any person

injured in such accident reasonable assistance.” T.C.A. § 55-10-103(a).



              Here, a driver who passed the defendant on Highway 57 shortly after the

accident saw the motorbike lodged underneath the defendant’s car and smelled

antifreeze and burning rubber, which was apparently caused by the motorbike as it

dragged along the road. When the defendant reached his mother’s house, which was

one mile away from the scene of the collision, he called 911. When he returned to the

scene forty-five minutes later, he told Trooper Perkins he “felt and heard a thug,” but

decided to continue traveling without stopping to investigate. Under the circumstances,

however, he should have stopped immediately at the crime scene to evaluate whether


                                            12
the boys required medical treatment. See §§ 55-10-101(a), 55-10-103(a). Moreover, by

taking a forty-five minute hiatus from the scene of the collision, the defendant did not

return “forthwith,” as § 55-10-101(a) requires. Thus, because the evidence revealed the

defendant did not comply with the statutory requirements, the evidence was sufficient to

prove the defendant left the scene of an accident, in violation of § 55-10-101.



             Finding no merit to the defendant’s arguments, we affirm the trial court’s

judgments.



                                                _______________________________
                                                JOHN H. PEAY, Judge


CONCUR:



______________________________
DAVID G. HAYES, Judge



______________________________
L. T. LAFFERTY, Senior Judge




                                           13
