Dortch v. State

544 S.W.3d 518

Sammy W. DORTCH, Jr., Appellant v. STATE of Arkansas, Appellee

No. CR-17-76

Supreme Court of Arkansas

Rehearing Denied June 7, 2018

April 26, 2018

APPEAL FROM THE INDEPENDENCE COUNTY CIRCUIT COURT [NO. 32CR-16-13], HONORABLE JOHN DAN KEMP, JUDGE

Jeremy B. Lowrey; and Larry Dean Kissee, Ash Flat, for appellant.

Leslie Rutledge, Att'y Gen., by: Vada Berger, Ass't Att'y Gen., for appellee.

OPINION

KAREN R. BAKER, Associate Justice

An Independence County jury found appellant Sammy W. Dortch, Jr., guilty of negligent homicide, driving while intoxicated, and reckless driving. Dortch was sentenced to a total of fifteen years' imprisonment, an $8,000 fine, and suspension of his driver's license for 120 days. On October 23, 2017, the Arkansas Court of Appeals certified the appeal to this court pursuant Arkansas Supreme Court Rule 1-2(b)(1), (3), (4), (5), and (6) because this appeal involves (1) issues of first impression; (2) issues involving federal constitutional interpretation; (3) issues of substantial public interest; (4) significant issues needing clarification or development of the law, or overruling precedent; and (5) substantial questions of law concerning the validity, construction, or interpretation of an act of the General Assembly. On November 9, 2017, we accepted certification of this appeal. We reverse and remand.

Dortch's convictions stem from the following facts. On September 16, 2015, Dortch and his friend Matthew Anderson went to U.S. Pizza in Batesville for lunch. Tara Hall waited on Dortch and Anderson and testified that Dortch was served two beers— a Shiner Bock in a regular size mug and a Lagunitas IPA "Big Earl," which is approximately twice the size of a regular mug.¹ Dortch testified that the "Big Earl" was purchased for Anderson. Ms. Hall did not see either Dortch or Anderson drink the beers. After leaving U.S. Pizza, Dortch and Anderson went to Beef O' Brady's. The receipt from Beef O' Brady's showed that Dortch purchased three beers. However, Dortch testified that he only drank two of the beers while Anderson drank one. After leaving Beef O' Brady's, Dortch and Anderson went to Stanley Wood Chevrolet and checked out a 2011 black Chevrolet Camaro to test drive. The pair headed to Vista Point Drive where Dortch lost control of the vehicle and the vehicle flipped upside down. In response to dispatch, Deputy Aaron Moody with the Independence County Sheriff's Office was the first to arrive on the scene of the crash. Deputy Moody testified that the vehicle was upside down, and Dortch was standing outside the vehicle. Dortch told Deputy Moody that Anderson was still inside the car and unconscious. Deputy Moody testified that Anderson was still in the passenger seat of the vehicle, upside down with his seatbelt on. Deputy Moody was unable to detect Anderson's brachial pulse, so he left Anderson until first responders arrived. Deputy Moody noticed that Dortch had bloodshot, watery eyes and smelled of intoxicants. Anderson was pronounced dead at the scene by the county coroner. Dortch admitted that he and Anderson had consumed beers together. Deputy Moody concluded that a blood draw was necessary because the accident resulted in a fatality and that Dortch was suspected of driving while intoxicated. Deputy Moody transported Dortch to the emergency room at the White River Medical Center for a blood draw. There, Deputy Moody went over a standard form outlining Arkansas's implied-consent law. The form stated that if he refused to take the test, "none will be given, but you will subject yourself to the penalties provided by law, which includes, but is not limited to, the suspension or revocation of your driving privileges." Dortch signed and initialed the form and a blood draw was performed by a registered nurse. At no point was a warrant obtained for the blood draw. Based on the results of the blood draw, the state crime lab calculated Dortch's blood alcohol level at .139.

On January 8, 2016, Dortch was charged by felony information with negligent homicide. On February 2, 2016, Dortch was charged by an amended felony information with the additional charges of driving while intoxicated and reckless driving. On September 6, 2016, Dortch filed his motion to suppress chemical evidence from his blood draw and a motion to declare unconstitutional the implied-consent statute, Arkansas Code Annotated section 5-65-202(a)(2), and the mandatory-chemical-testing statute, Arkansas Code Annotated section 5-65-208, which requires chemical testing if an accident results in a fatality. Dortch argued that these statutory provisions violated the Fourth Amendment pursuant to a then recent United States Supreme Court decision, Birchfield v. North Dakota, ___ U.S. ___, 136 S.Ct. 2160, 195 L.Ed.2d 560 (2016). The circuit court denied Dortch's motion to suppress his blood draw, finding that Dortch impliedly consented to the warrantless blood draw. Further, the circuit court found that Dortch consented to the blood draw and that the consent was voluntary. The circuit court denied Dortch's motion to declare Arkansas Code Annotated sections 5-65-202(a)(2) and 5-65-208 unconstitutional. As noted above, a jury trial was held and Dortch was convicted of negligent homicide, driving while intoxicated, and reckless driving. On October 28, 2016, Dortch timely filed his notice of appeal. On appeal, Dortch argues that (1) the prosecution presented insufficient evidence of his guilt of negligent homicide; (2) Arkansas Code Annotated sections 5-65-202(a)(2) and 5-65-208 are unconstitutional and therefore his blood draw pursuant to these statutes was required to be suppressed; (3) because Anderson's cause of death was not patently apparent, the circuit court erred in permitting the coroner to testify as to Anderson's cause of death; (4) the failure of the coroner to obtain an autopsy and preserve evidence of the cause of Anderson's death affirmatively prejudiced Dortch's ability to present a defense in this case; (5) the circuit court erred in not permitting rebuttal testimony to correct the State's repeated mischaracterization of the evidence relating to Dortch's alcohol consumption, and in not addressing the prosecution's misstatements of fact; and (6) the list of errors asserted here are such that reversal should be granted because of their cumulative effect.

I. Sufficiency of the Evidence

On appeal, Dortch argues that there was insufficient evidence of his guilt of negligent homicide because the State failed to prove that he caused Anderson's death as required by Arkansas Code Annotated section 5-10-105(a)(1) (Repl. 2013). Although Dortch raised this issue as his last point on appeal, double-jeopardy considerations require this court to consider a challenge to the sufficiency of the evidence prior to the other issues on appeal. Jones v. State, 349 Ark. 331, 78 S.W.3d 104 (2002). In reviewing a challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the State and consider only the evidence that supports the verdict. Edmond v. State, 351 Ark. 495, 95 S.W.3d 789 (2003). We will affirm a conviction if substantial evidence exists to support it. Id. Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resorting to speculation or conjecture. Id.

With regard to sufficiency-of-the-evidence challenges, Arkansas Rule of Criminal Procedure 33.1 provides, in pertinent part:

(a) In a jury trial, if a motion for directed verdict is to be made, it shall be made at the close of all of the evidence offered by the prosecution and at the close of all of the evidence. A motion for directed verdict shall state the specific grounds therefor.

....

(c) The failure of a defendant to challenge the sufficiency of the evidence at the times and in the manner required in subsection[ ] (a) ... will constitute a waiver of any question pertaining to the sufficiency of the evidence to support the verdict or judgment. A motion for directed verdict or for dismissal based on insufficiency of the evidence must specify the respect in which the evidence is deficient. A motion merely stating that the evidence is insufficient does not preserve for appeal issues relating to a specific deficiency such as insufficient proof on the elements of the offense.

Ark. R. Crim. P. 33.1. Rule 33.1 is to be strictly construed. Carey v. State, 365 Ark. 379, 230 S.W.3d 553 (2006) (citing Pinell v. State, 364 Ark. 353, 219 S.W.3d 168 (2005)). Accordingly, in order to preserve a challenge to the sufficiency of the evidence, an appellant must make a specific motion for a directed verdict, both at the close of the State's case and at the end of all the evidence, that advises the circuit court of the exact element of the crime that the State has failed to prove. Id. (citing Grady v. State, 350 Ark. 160, 85 S.W.3d 531 (2002)). The reason underlying the requirement that specific grounds be stated and that the absent proof be pinpointed is that it allows the circuit court the option of either granting the motion or, if justice requires, of allowing the State to reopen its case and supply the missing proof. Id. (citing Webb v. State, 327 Ark. 51, 938 S.W.2d 806 (1997)). A general motion that merely asserts that the State has failed to prove its case is inadequate to preserve the issue for appeal. Id. (citing Beavers v. State, 345 Ark. 291, 46 S.W.3d 532 (2001)).

Here, Dortch's challenge to the sufficiency of the evidence is not preserved for our review. At trial, Dortch's counsel made a generic directed-verdict motion and renewed motion, which the circuit court denied:

DEFENSE COUNSEL: Judge, two things. At this time the State has rested and we'll move for a directed verdict of not guilty. And I realize that the Court has ruled on these previously but since all of the evidence is in, we'd again allege that the chain of custody was improper in this...