        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT NASHVILLE           FILED
                       MARCH SESSION , 1999             April 30, 1999

                                                  Cecil W. Crowson
STATE OF TENNESSEE,          )                  Appellate Court Clerk
                                 C.C.A. NO. 01C01-9801-CR-00015
                             )
      Appellee,              )
                             )
                             )   DAVIDSON COUNTY
VS.                          )
                             )   HON. FRANK G. CLEMENT, JR.
ROY A. JORDAN,               )   JUDGE
                             )
      Appe llant.            )   (Vehicular Homicide)


                ON APPEAL FROM THE JUDGMENT OF THE
                CRIMINAL COURT OF DAVIDSON COUNTY


FOR THE APPELLANT:               FOR THE APPELLEE:

JAMES ROBIN MCKINNY, JR.         JOHN KNOX WALKUP
One Washington Square            Attorney General and Reporter
Suite 103
214 Se cond A venue N orth       ELIZABETH B. MARNEY
Nashville, TN 37201              Assistant Attorney General
                                 425 Fifth Avenu e North
TOMMY TRAVIS OVERTON             Nashville, TN 37243
213 T hird Aven ue No rth
Nashville, TN 37201              VICTOR S. JOHNSON
                                 District Attorney General

                                 BERNARD MCEVOY
                                 Assistant District Attorney General
                                 Washington Square, Suite 500
                                 222 Se cond A venue N orth
                                 Nashville, TN 37201-1649



OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
                                  OPINION

       The Defendant, Roy A. Jordan, was found guilty of vehicular homicide and

sentenced to ten yea rs. He no w appe als his con viction, purs uant to Rule 3 of the

Tennessee Rules of Appellate Procedure. The Defendant presents two issues

on appeal: (1) whether the evid ence was s ufficien t to sup port the jury’s finding of

guilt beyond a reasonable doubt; and (2) whether the trial cou rt prop erly denied

his mo tion to sup press the results of h is blood a lcohol tes t.



       On O ctober 2 5, 1996 at appro ximately te n o’clock p.m., Mr. an d Mrs . Bill

Stone exited the Dark horse Th eatre on Ch arlotte Avenue after viewing a play.

Mr. Bong Im, who was traveling westward on Charlotte in an Oldsmobile Cutlass,

stopped his vehicle in front of the theatre to allow theatregoers to cross Charlotte.

He signaled a group, which included the Stone s, to cro ss the street in front of h is

vehicle where there was no crosswalk. The first two individuals in the group

crossed Charlotte safely.       However, as two more individuals, the Stones,

attempted to make their way across the street, the Defendant’s Chevrolet Blazer,

which was also traveling westward on Charlotte, rear-ended Mr. Im’s car. Mr.

Im’s vehicle lurched forward, striking Mr. Stone and throwing his body over the

hood of the car into the next intersection. Stone died at the scene. After hitting

Mr. Im’s c ar, the Bla zer veere d to the left an d struck a n onco ming c ar.



       One eyewitne ss, Steve n Carl S calet, testified that he w as alerte d to the

impending accident by the “sound of a car or truck coming too fast, just revving

up his engine.” He reported that the Blazer was traveling at a speed in excess



                                          -2-
of forty-five or fifty miles per hour. Scalet stated that between the time he looked

up and first saw the D efenda nt’s Blaze r approa ching, he had en ough tim e to

think, “If he starts to stop right now, he will avoid an accident. And even—you

know, like half a second to a second later, . . . you still have another chance; stop

right now and you will not hit this parked car.” He also testified that the Bla zer did

not “break up until the very last millisecond or a second and a half” before hitting

Im’s car. Scalet stated that after the accident, he watched the Defendant exit the

Blazer a nd notice d that the D efenda nt “looked like he ha d been drinking.”



      Another eyewitness to the accident, Malika Jackson, testified that the

Defe ndan t’s Blazer was traveling at approximately sixty miles per hour. She

estimated that five seconds passed between the time that she first noticed the

Blazer speed ing dow n the stree t and the time of collision. She stated that M r.

Im’s car was completely stopped at the time of the crash.



      A third eyew itness to the collision and a close friend o f the victim , Orville

D. Hinkle , testified that he attended the play with the victim on the night of the

accident and state d that he and his family crossed Charlotte shortly before the

Stones. Hinkle reported that the portion of Charlotte where the accident occurred

was well-lit at the time of the crash, illuminated by both s treet lights an d lights

from a church. He also maintained that Mr. Im’s car was at a complete stop at

the time of the crash. He recalled that after the crash , he ran by the D efend ant’s

vehicle and ob served th e Defe ndant s itting with his head in his hands. He stated

that he noticed the “smell of alcoho l” as he ran by.




                                          -3-
      Evans Donn ell, a fourth eyewitness to the accident, testified that the Blazer

was traveling at a spee d over forty-five m iles pe r hour b efore h itting Mr . Im’s

stopped car. Like M r. Hinkle, he reported that Cha rlotte Avenue was well-lit at

the time of the accident and that although it began to rain shortly after the

accident, it was not raining at the time of the accident. In addition, he testified

that there were no other cars in the vicinity of the Blazer before the crash. He

testified that as the Blazer approached Mr. Im’s c ar, he w onde red wh ether it

would stop in time and stated that he believed the Bla zer co uld ha ve stop ped in

time. He further testified that after he watched the Blazer hit Mr. Im’s car, he

heard the Blazer’s engine “revving” before the Blazer crashed into the oncoming

car. He recalled that after the accident, he heard the Defendant ask, “What

happened?” and testified that the Defendant, who “appeared quite dish eveled,”

smelled of be er.



      Officer Scott Mitc hell was c alled to the scen e shortly afte r the accid ent. He

testified that when he approached the Defendant, the Defendant informed him

that his Blazer had been hit in the rear b y another car, ca using him to “sw erve

into the oncoming traffic and strike another vehicle.”           He stated that the

Defendant did not mention anything at that time about striking Mr. Im’s car.

Mitchell testified that he “detected a strong odor of alcohol about [the

Defen dant].” He stated that the Defendant’s “eyes were bloodshot and re d, his

speech was slurred and he seemed somew hat con fused w hen an swering . . .

questions.   He was unstable on his feet also.”          According to Mitchell, the

Defendant admitted to having d runk fou r beers b efore the acciden t. He testified

that he also checked the inside of the Defendant’s vehicle and found “close to 30"

beer cans , some full and s ome em pty.

                                         -4-
       Officer Ronald C. Swanson, a mem ber of the DUI E nforcem ent Un it,

administered field sobriety tests to the Defendant at the scen e of the ac cident.

When he arrived , he esco rted the D efendant to a level surface “away from the

distraction of the noise and lights” to administer the tests. Swanson observed

that the Defe ndan t could not walk unaided, that there was an extremely “strong

odor of alcohol” about the Defendant, and that the Defendant’s speech was

slurred and “mumbling.”       He concluded that the Defendant “was about as

intoxicated as anybody [he’d] ever seen.”          Swanson testified that when he

administered the horizontal gaze nystagmus test to the Defendant, the Defendant

was initially ab le to follo w his instructions but then “kind of discontinue d and sort

of gazed.” The Defendant subsequently declined to perform the nine-step walk-

and-turn and the one-leg -stand te sts.



       Swanson stated that he then se ated the De fendant in the pa trol car, where

the Defendant began to make incoherent comments, and recited to the

Defendant his Miranda rights. He recalled that the Defendant made a couple of

comm ents about wanting to see a lawyer.            Swanson next transported the

Defendant to Nashville General Hospital, where a sample of the D efend ant’s

blood was drawn at midnight. Jerry Gowen, the director of the clinical laboratory

at the ho spital, te stified that hospital policy ordinarily requires consent of the

patient for obtaining blood samples, except when the patient is under arrest. Test

results revealed that at midnight, the Defendant’s blood contained an alcohol

conten t of .20 perc ent.



       Officer Joe Morton testified about damage done to the vehicles during the

acciden t. He stated that he exa mine d the D efend ant’s ve hicle a nd wa s una ble

                                          -5-
to find any da mage to its rear or a ny other evidence indicating that it had been

struck from behind. He also testified that there were numerous beer cans inside

the Blazer and a glass bowl containing two full beer cans, which was positioned

on the floo rboar d of the driver’s sid e within reach of the driver. He determined

that Mr. Im’s vehicle traveled 158 feet after the collision and that the distance

between the area of impact and the intersection of 46th Street, the approxim ate

location where eyewitnesses first noticed the speeding B lazer, was 331 feet. He

stated that a driver of a vehicle going forty miles per hour, the designated speed

limit on Ch arlotte A venue , would have a little ov er five seco nds to re act to another

car stopped approxima tely three hundre d feet ahead of his car.



       In addition, Morton testified that he contacted the Defendant at the hospital

shortly after m idnigh t. He sta ted tha t at that tim e, the D efend ant still sme lled

strong ly of alcohol, his speech was slurred and disjointed , and his eyes w ere

watery. He concluded that “he was unable to drive, he was impaired.” He stated

that the Defend ant told him that as he chang ed lanes to pa ss a car, he sa w Mr.

Im’s car stopped ahead, but was unable to stop his own vehicle in time.



       The Defendant testified at trial. He stated that at 4:00 p.m. on October 25,

1996, he pic ked u p a six-p ack o f beer a fter wo rk and drank it before 5:00 p.m .,

when he went to his second job. He reported that at approximately 9:15 p.m., he

left his second job to meet a friend, Robert McCarter, who was employed as

security for a church on Charlotte Avenue. McCarter, whom the Defendant

sometimes helped out free of charge, was paid to sit inside his own vehicle in the

church parking lot during c hurch services to prevent theft and vandalism.

According to the Defendant, he arrived at the church at approximately 9:30 p.m.

                                           -6-
and opened another can of beer. He stated that between the time he got off wo rk

at 9:15 and the time he le ft the ch urch, h e dran k ano ther thr ee an d one -half

beers. He and Mr. Im, who was also employed at the church, left the church at

approxim ately the sa me tim e.



         The D efenda nt testified,

         W e were traveling westbound on Charlotte; I was next to the center
         lane on Charlotte Avenue. We got to 4 6th Av enue and th e car in
         front of me, which had just le ft the churc h, applied his brake s. I
         changed lanes because I did not see any brake lights on the back
         of Mr. Im’s car at that time. W hen I cha nged la nes his ligh ts came
         on and I applied my brakes and that’s when I slid.1

He claimed that he was traveling at a speed of forty miles per hour befo re

applying his brakes and also claimed that the streetlights in front of the Darkhorse

Theatre were n ot work ing. He testified that eve n if he h ad be en so ber, he would

have hit Mr. Im’s car. He stated, “I had no indication that the gentleman was

stopped where he was until after I changed lanes and I saw his brake lights being

applied then.” In addition, he denied telling Officer Mitchell at the scene of the

crime th at he ha d been rear-end ed.



         The Defe ndan t main tained that he did no t cons ume any be er insid e his

vehicle after leaving the chur ch. He fu rther testified that he fe lt the effects of

alcohol more strongly at the time his blood was drawn after the accident than at

the time of the acciden t. Finally, he admitted to having drunk a six-pack of beer

almost every day for six years during the time between his first and second jobs.




1
    No witness to the accident saw the Defendant change lanes before crashing into Mr. Im’s car.

                                               -7-
       Robert McCarter, the Defendant’s friend, testified that the Defendant

arrived at the church parking lot at approximately 9:15 or 9:20 p.m. on the night

of the accident. He testified that the Defendant had a can of beer in his hand and

that his breath smelled strongly of alcohol.          However, he stated that the

Defen dant “se emed to have k nowled ge and his spee ch was n’t slurred.”



       Donna Jordan, the Defendant’s wife, stated that she saw her husband with

a beer in his hand at approximately 9:15 or 9:20 on the night of the accident

when he stopped by their home before heading to the church. She testified that

she knew he ha d bee n drink ing be caus e of his dem eano r and th e fact th at his

eyes were bloodshot. However, she also stated, “He was talking all right, he was

walking fine . . . [and] he didn ’t stagger.”



                      I. SUFFICIENCY OF THE EVIDENCE

       The Defendant first argues that the evidence presented at trial is

insufficient to sustain his conviction for vehicular homicide. He the orizes that if

Mr. Im had testified, the jury co uld have determined that Mr. Im contributed to the

acciden t. He contends th at a “rational trier of fact could have found that the

essential element for the crime was not proven beyond a reasonable doubt due

to the lack of testimony from Mr. Im.” He emphasizes the fact that the Defendant

did not submit to a breath alcohol test. He also points out Officer Swan son’s

notation in his report th at he wa s unab le to asce rtain the D efenda nt’s “ability to

operate a m otor vehicle.”



       Tennessee Rule of Appellate Procedure 13(e) prescribes that “[f]indings

of guilt in criminal actions whether by the trial court or jury shall be set aside if the

                                          -8-
evidence is insufficient to support the finding by the trier of fact beyond a

reaso nable doubt.” Tenn. R. App. P. 13(e). In addition, because a conviction by

a trier of fact destroys the presumption of innocence and imposes a presumption

of guilt, a convicted criminal defendant bears the burden of showing that the

evidence was insufficient. McBe e v. State, 372 S.W .2d 173, 176 (Tenn. 196 3);

see also State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992) (citing State v.

Grace, 493 S.W.2d 474, 476 (Tenn. 1976), and State v. Brown, 551 S.W.2d 329,

331 (Tenn . 1977)); State v. Tug gle, 639 S.W .2d 913, 914 (Tenn. 198 2); Holt v.

State, 357 S.W .2d 57, 61 (T enn. 1962 ).



      In its review of th e eviden ce, an ap pellate court must afford the State “the

strongest legitim ate view of the e videnc e as w ell as all reasonable and legitimate

inferences that may be d rawn therefrom .” Tug gle, 639 S.W.2d at 914 (citing

State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978)). The court may not “re-

weigh or re-evaluate the evidence” in the record below. Evans, 838 S.W.2d at

191 (citing Cabbage, 571 S.W .2d at 836). Likew ise, should the review ing court

find particular conflicts in the trial testimony, the court must res olve them in favor

of the jury ve rdict or trial cou rt judgm ent. Tug gle, 639 S.W.2d at 914.



      Based upon our review of the record, we co nclud e that th ere wa s clear ly

sufficient evidence introduced at trial to support the jury’s verdict. The Defendant

complains that Mr. Im was not called as a witness at trial and contends that Mr.

Im’s testimon y would h ave con vinced juro rs that Mr. Im contribute d to the

acciden t. How ever, th e Def enda nt doe s not s pecify w hat tes timon y Mr. Im could

have provided to ensur e this resu lt. We n ote that th e Defendant could have

called Mr. Im as a witness and apparently chose not to do so. We may not now

                                          -9-
hypothesize about w hat testim ony Mr. Im may or m ay not have provided. See

Tenn . R. App . P. 13(c).



      Our vehicular homicide statute, Tennessee Code Annotated § 39-13-213,

defines the crime as “the reckless killing of another by the operation of an

automobile, airplane, m otorboa t, or other m otor vehic le . . . [a]s the pro ximate

result of the driver’s intoxication as set forth in § 55-10-401 . . . .” Tenn. Code

Ann. § 39-13-21 3(a)(2). Tennessee Code Annotated § 55-10-401 specifies that

an individual is intoxicated for purposes of our DUI statute if his or her blood

alcohol content is “ten-hun dredths of one percent (.10% ) or more.” Id. § 55-10-

401(a)(2 ).



       Tests performed on a sam ple of the Defendant’s blood which was drawn

appro ximate ly two hours after the accident reveal that the Defendant’s blood

alcohol content was .20 percent, twice the amoun t required by statute to show

intoxication. The Defendant himse lf admitted to drinking nine an d one-half bee rs

on the evening of the accident, three and one-half of them within less than an

hour before the crash. Moreover, numerous witnesses an d officers present at the

scene of the accident described the Defendant as inebriated and smelling

strongly of alcoho l.   Thus, it is cle ar that the p roof dem onstrate d that the

Defen dant wa s intoxicate d at the tim e of the ac cident.



       Furthermore, witnesses to the accident testified that the Defendant was

speeding; that Mr. Im ’s car stop ped su bstantially a head o f the Defe ndan t’s

speeding vehicle; tha t Mr. Im’s ca r was co mplete ly stopped at the time of th e

crash; that there we re no oth er cars o n the roa d to impede the Defendant’s view;

                                         -10-
that the De fenda nt did not ap ply his brakes until the very last moment before he

hit Mr. Im’s c ar; and that the Defen dant accelera ted after striking Mr. Im’s ca r,

thus propelling his own vehicle into an oncoming car. Certainly this is sufficient

evidence from which a rational trier of fact c ould c onclu de tha t the D efend ant’s

recklessness was the cause of the accident and that the accident was the

proxima te result of h is intoxication . This issu e is withou t merit.



                               II. BLOOD ALCOHOL TEST

       The Defendant next argues that the results of his blood alcoh ol test s hould

have been excluded from evidence.2                He challenges the constitutionality of

Tennessee Code Annota ted § 55 -10-406 (e) on the basis tha t it compels a

defendant to give evidence against himself, in contravention of Article I, Section

9 of our state constitution . Tenn. C onst. art. I, § 9.3 He also contends that the

statute violates rights protected by Article I, Section 7 of our state constitution,4

arguing that “the least obtrusive measure [by] which to compel a Defen dant to

provide a blood alcohol sample is to ascertain a search warrant to ensure that the

constitutional safeguards are met and satisfied.” Tenn. Const. art. I, § 7.




2
  In his brief, the Defendant initially argues that the “results of the breath alcohol test should
have been excluded from evidence.” (Emphasis added.) However, from a reading of his
argument as a whole, it seems clear that the Defendant is referring to the blood alcohol test
results.
3
  The relevant portion of Article I, Section 9 of the Tennessee Constitution, “the accused . . .
shall not be compelled to give evidence against himself,” parallels the Fifth Amendment to our
United States Constitution, which provides, in pertinent part, “[n]o person shall . . . be
compelled in any criminal case to be a witness against himself.” Tenn. Const. art. I, § 9; U.S.
Const. amend. V.
4
  Both Article I, Section VII of the Tennessee Constitution and the Fourth Amendment to the
United States Constitution address unreasonable searches and seizures. Tenn. Const. art. I,
§ 7; U.S. Const. amend. IV.

                                              -11-
       In Tennessee, anyone who operates a motor vehicle on the roads of our

state is “deemed to have given consent to a test for the purpose of determining

the alcoholic . . . content o f that perso n’s blood . . . .” Tenn. C ode An n. § 55-10-

406(a)(1). If an accuse d is charg ed with driving under the influence and “refuses

to submit” to testing, the tests “sha ll not be given.”        Id. § 55-10-40 6(a)(3).

However, when a person is charged with vehicular homicide, Tennessee Code

Annotated § 55-10-406(e) applies. It provides:

       Nothing in this section shall affe ct the a dmis sibility in e videnc e, in
       criminal prosecutions for aggravated assault or homicide by the use
       of a motor vehicle only, of any chemical analysis of the alcoholic or
       drug content of the defendant’s blood which has been obtained by
       any me ans law ful without re gard to th e provision s of this sec tion.

Id. § 55-10-40 6(e).


        In Schm erber v. Califo rnia, 384 U.S. 757 (1966), the United States

Supreme Court emphasized that the Fifth Amendment privilege ag ainst self-

incrimination under our United States Constitution “protects an accused only from

being compelled to testify against himse lf, or otherwis e provide the State with

evidence of a testimonial or communicative nature.” Id. at 761. The Court

determined that

       [t]he values pro tected by the F ourth A men dme nt . . . sub stantia lly
       overlap those [that] the Fifth Amendment helps to protect. H istory
       and precedent have required that we today reject the claim that the
       Self-Incrimination Clause of the Fifth Amendment requires the
       human body in all circums tances to be held inviolate ag ainst state
       expeditions seeking evidence of crime.          But if compulsory
       administration of a blood test does not implic ate the F ifth
       Ame ndme nt, it plainly involves the br oadly co nceived reach o f a
       search and se izure und er the Fo urth Am endm ent.

Id. at 767 . The C ourt co nclud ed tha t blood test evid ence is admissible if the test

is performed in a reaso nable m anner a nd there is some indication th at the




                                          -12-
evidence sough t will be found . Id. at 771; see also State v. Greene, 929 S.W.2d

376, 38 0 (Ten n. Crim. A pp. 199 5).



       In State v. Cleo Mason, No. 02C01-9310-CC-00233, 1996 WL 111200

(Tenn. Crim. App ., Jackson, Ma rch 14, 1996 ), the late Judge Joe B. J ones w rote

for this Court and adopted the Schmerber test, which sets forth four prerequisites

to be met before the results of a compelled blood-alcohol test are adm issible into

evidenc e. The S tate mu st prove b y a prepo nderan ce of the e vidence that:

       a) The officer compelling the extraction of blood from the accused
       has probable cause to believe that the accused committed the
       offense of aggravated assault or vehicular homicide while under the
       influences of an intoxic ant or drug, and there is a clear indication
       that eviden ce of th e acc used ’s intoxic ation w ill be fou nd if the blood
       is taken from the accused’s body and tested;
       b) Exigen t circums tances exist to foreg o the wa rrant requ iremen t;
       c) The test selected by the officer is reasonable and competent for
       determining blood-alcohol content; and
       d) The test is pe rformed in a rea sonable m anner.

Id. at *7-8 (citations omitted) (citing Schmerber, 384 U.S . at 768-7 2). In Mason,

this Court ruled that on the specific facts of the case, the use of physica l force to

obtain the defe ndant’s b lood wa s objective ly reason able. Mason, 1996 W L

1112000, at *12. We find the reasoning and analysis of Judge Jones to be

sound.



       Here, althou gh it is som ewha t uncle ar from the De fenda nt’s brief, it does

not appear that the Defendant challenges the m ethod by whic h his b lood s amp le

was taken, nor does he argue that he refused consent for blood tests.5 Rather,


5
 In his brief, the Defendant states,
       It is clear from the record that the Appellant, Roy A. Jordan, refused the breath
       test and was subjected to a blood alcohol test. The Appellant, Roy A. Jordan,
       refused the field sobriety tests. On the 25th day of October, 1996 the Appellant
       refused to submit to the breath alcohol testing.
He makes no other references to the method of procuring his blood sample.

                                             -13-
it appears that the Defe ndant ra ises a ge neral cha llenge to th e cons titutionality

of Tennessee Code Annotated § 55-10-406(e)6 and contends that because the

statute is unconstitutional, the State should have procured a search warrant

before drawing a sample of his blood.



       Based upon legal analysis of this issue by both the United States Supreme

Court and this Cou rt in previous cases, as summarized herein, we conclude that

Tennessee Code Annotated §55-10-406(e) is constitutional.                      Our case law

requires that specific procedures must be followe d in ob taining a bloo d sam ple

from a defendant charged with vehicular homicide and even allows the forcible

taking of blood in certain situations. We are unpersuaded to overrule previous

holdings by this Co urt on this iss ue.          Because the Defendant points to no

evidence in the record that he refused consent to the blood-alcohol test

performed on him the night of the ac ciden t or that h is bloo d was drawn in

violation of the standards set forth in Mason, we con clude tha t the trial c ourt

properly d enied the Defen dant’s m otion to su ppress the resu lts of the test.



       The jud gmen t of the trial cou rt is accord ingly affirme d.




6
   The Defendant argues that when the issue of the constitutionality of Tennessee Code
Annotated § 55-10-406(e) was raised in State v. Bullington, 702 S.W.2d 580, 583 (Tenn. Crim.
App. 1985), this Court “did not specifically address the constitutionality other than the general
conclusory opinion” that the statute passes constitutional muster. We note that in Bullington,
this Court relied upon two United States Supreme Court cases in concluding, “The State may
compel submission to [blood alcohol] testing if the officer has reasonable grounds to believe
that the motorist is intoxicated.” Id. at 583. In addition, this Court found the statute to be
constitutional in State v. Terry Fowler, Lake County No. 4, 1985 WL 3545 (Tenn. Crim. App.,
Jackson, Nov. 6, 1985).

                                             -14-
               ____________________________________
                         DAVID H. WELLES, JUDGE



CONCUR:



___________________________________
JOE G. RILEY, JUDGE


___________________________________
THOMAS T. WOODALL, JUDGE




                             -15-
