Lovell v. Thorp

JIMMIE LEE LOVELL, Petitioner, v. JACK THORP, Respondent.

Case No. CIV 19-024-RAW-KEW

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF OKLAHOMA

May 8, 2020

OPINION AND ORDER

This matter is before the Court on Petitioner's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is a state prisoner represented by counsel who currently is under house arrest in Sequoyah County, Oklahoma. He is attacking his conviction in Sequoyah County District Court Case No. CF-2014-612 for First Degree Manslaughter, pursuant to Okla. Stat. tit. 21, § 711,¹ raising the following two grounds for relief:

I. The blood alcohol test results should have been suppressed.

II. The manslaughter conviction should have been dismissed.

Respondent concedes that Petitioner has exhausted his state court remedies for the purpose of federal habeas corpus review. The following records have been submitted to the Court for consideration in this matter:

A. Petitioner's direct appeal brief. (Dkt. 9-1).

B. The State's brief in Petitioner's direct appeal. (Dkt. 9-2).

C. Petitioner's response to the State's brief. (Dkt. 9-3).

D. Summary Opinion affirming Petitioner's Judgment and Sentence. Lovell v. State, No. F-2016-997 (Okla. Crim. App. Dec. 21, 2017) (Dkt. 9-4).

E. Petitioner's motion to reconsider. (Dkt. 9-5).

F. Order Denying Motion to Reconsider and Directing Issuance of Mandate in Case No. F-2016-997. (Dkt. 9-6).

G. Original Record, state-court transcripts, and exhibits. (Dkt. 10)

Standard of Review

Under the Anti-Terrorism and Effective Death Penalty Act, federal habeas corpus relief is proper only when the state court adjudication of a claim:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d).

Facts

The State set forth the facts of the case in its brief in Petitioner's direct appeal:

Around 7:00 p.m. on April 22, 2014, the defendant, while driving his motorcycle northbound on Highway 59 south of Sallisaw in Sequoyah County, ran his motorcycle off of the road and into the median where it crashed (Tr.Vol. I, 51-56; Tr. Vol. II, 67, 72-75, 104-06, 114-16, 119-21; Tr. Vol. III, 311-13; State's Exs. 2-21). When the defendant ran off the road, his passenger, Peggy Taylor, who was not wearing a helmet, was thrown from the motorcycle (Tr. Vol. I, 51-52; Tr. Vol. II, 104-06, 114-16). An eyewitness testified he saw Ms. Taylor tumble head over heels several times striking the ground as she tumbled, before she landed on her bottom and fell over (Tr. Vol. II, 105, 111). Ms. Taylor's head, face, and legs were severely injured as a result of her repeated impact with the ground (Tr. Vol. II, 117, 131-36; Tr. Vol. III, 314). Her brain was torn from her body and her brain matter was found scattered along her path of travel along with other bodily tissue and bone fragments (Tr. Vol. II, 83-91, 131-36; Tr. Vol. III, 318-20, 343-44, 385, 390-92, 459-65; State's Exs. 12-20). One of her feet was almost severed from her body (Tr. Vol. II, 132; Tr. Vol. III, 315-16). Ms. Taylor did not survive her catastrophic injuries (Tr. Vol, II, 133-36, 201-03; Tr. Vol. III, 314-15; State's Ex. 31).²

The afternoon before the crash that evening, Ms. Taylor and the defendant had taken a ride on the motorcycle from their home to a bar in Ft. Smith, Arkansas (Tr. Vol. 1, 49). After drinking alcohol, the defendant drove himself and Ms. Taylor towards a casino (Tr. Vol. IV, 502-04). It is not clear whether the two went to the casino because the defendant claims to have no memory of what occurred between that time and the crash a few hours later (Tr. Vol. IV, 502-05, 519-24, 528-30).

At the time of the accident, after ejecting Ms. Taylor from the motorcycle, the defendant continued driving the motorcycle down the median until he was also thrown to the ground (Tr. Vol. I, 51-53; Tr. Vol. II, 105-06, 114-18). Passersby stopped to help and called 911 (Tr. Vol. I, 51-52; Tr. Vol. II, 105-07, 114-18).

When paramedic Ernest Perkins arrived at the scene he checked on the victim who he determined was deceased (Tr. Vol. II, 124, 128-36). He then assisted his partner, paramedic Mike Little, who was tending to the defendant (Tr. Vol. II, 136-37, 165-71). During treatment the defendant was able to communicate verbally with both paramedics and did not appear to have anyexternal injuries more serious than road rash (Tr. Vol. II, 137-40, 171-76).³ Both paramedics testified that defendant smelled of alcohol, especially when he spoke to them (Tr. Vol. II, 141-42, 176-77). Mr. Little testified that when he asked the defendant if he had been drinking the defendant stated that he had four (4) or five (5) beers and some whiskey earlier that evening in Ft. Smith (Tr. Vol. II, 142, 177). After the defendant told Mr. Little that he had been drinking, Mr. Little called Oklahoma Highway Patrol Trooper Derek Griffey over to the ambulance to speak with the defendant (Tr. Vol. II, 145, 177; Tr. Vol. III, 318). As Trooper Griffey spoke with the defendant, he noticed an odor of alcohol and that the defendant had slurred speech (Tr. Vol. III, 321-22, 325). During their conversation the defendant told Trooper Griffey that he was driving the motorcycle and had just missed the curve and was trying to get back on the road when he crashed (Tr. Vol. III, 325-26). When Trooper Griffey asked the defendant if he had been drinking that evening, the defendant stated he had drunk a couple of beers (Tr. Vol. II, 177-78; Tr. Vol. III, 321-22). Trooper Griffey then read the "Implied Consent" form, including the portion indicating the defendant could have a sample of his blood independently tested, to the defendant and asked for his consent to withdraw the defendant's blood (Tr. Vol. III, 324, 352-54). The defendant denied consent (Tr. Vol. II, 145, 177-79; Tr. Vol. III, 324). Trooper Griffey then placed the defendant under arrest and informed him his blood would be drawn at the hospital due to the death of his passenger (Tr. Vol. II, 178-80; Tr. Vol. III, 326-27).

Trooper Griffey followed the ambulance to Sparks Hospital in Ft. Smith, Arkansas, where the defendant was taken for treatment (Tr. Vol. II, 328; Tr. Vol. III, 327-30). Once at the hospital, Trooper Griffey again went over the blood withdrawal procedure with the defendant who responded appropriately to Trooper Griffey's questions and appeared to understand what was happening (Tr. Vol. III, 330-31). Three vials of the defendant's blood were drawn by Registered Nurse David Bise (Tr. Vol. II, 295, 297-301, 304; Tr. Vol. III, 331-35; State's Ex. 30). The vials were sealed in accordance with procedure and Trooper Griffey later sent the samples to the Oklahoma State Bureau of Investigation ("OSBI") for analysis (Tr. Vol. III, 331-38; State's Ex. 32). Before leaving the hospital, Trooper Griffey made a copy of the "Blood Test Officer's Affidavit" he had filled out for purposes of drawing thedefendant's blood and left a copy with the defendant (Tr. Vol. III, 335-38; State's Ex. 30).

OSBI forensic toxicologist and criminalist supervisor Michael Wallace later analyzed the defendant's blood (Tr. Vol. III, 411, 418-25). Mr. Wallace determined the defendant's blood alcohol content was 0.114 when his blood was drawn (Tr. Vol. III, 418-25; State's Ex. 33).

Oklahoma Highway Patrol Trooper Robert Francis, an expert in accident reconstruction, analyzed the data and evidence collected from the crash scene (Tr. Vol. II, 213-14, 216-22). He estimated the defendant was traveling approximately eighty-four (84) miles per hour when he left the roadway for no external reason, i.e. weather or other traffic, which resulted in Ms. Taylor being ejected from the motorcycle (Tr. Vol. II, 221-59; State's Exs. 23-28).

(Dkt. 9-2 at 6-10).

Ground I: Failure to Suppress the Blood Alcohol Test

Petitioner alleges in Ground I of the petition that the trial court erroneously denied his motion to suppress the results of the blood test for the specimen that was drawn on April 22, 2014. He asserts he was hospitalized and was in rehabilitation for a total of three weeks but did not begin to remember what had happened for about a week after the wreck. He claims he received no paperwork or clothing when he was discharged from the hospital to rehabilitation. He also maintains he was unaware he was under investigation until he was charged in November 2014 and he first saw the Blood Test Officer's Affidavit (State's Ex. 30; Dkt. 10-10 at 45) in December 2014 when his attorney showed it to him.

Petitioner complains that pursuant to Okla. Stat. tit. 47, § 752, the State was required to retain a blood sample for independent testing for sixty (60) days. The sample wasdestroyed on October 31, 2014, more than six months after the crash, but before Petitioner was arrested.⁴ Because he was unaware of the blood test results until he was charged, Petitioner missed his opportunity to independently test the blood sample. The State offered no explanation for the delay in filing charges.

Petitioner argues the State could have advised him that he was a suspect before the sample was destroyed. He claims Trooper Griffey, in acknowledging Petitioner's condition, could have made additional contact at the hospital or at Petitioner's home. Also, Trooper Griffey or the district attorney could have sent a copy of the test to Petitioner to notify him that his blood alcohol level exceeded the legal limit of 0.8. Further, although the Blood Test Officer's Affidavit stated that Petitioner would be notified by the Department of Public Safety requesting his driver's license if the test exceeded the legal limit, he received no such notice and retained his license.

The trial court held a hearing on the motion, and Petitioner testified he...