PRESENT: Hassell, C.J., Lacy, Keenan, Koontz, Kinser and Lemons,
JJ., and Stephenson, S.J.
DAVID ALAN STEVENS
OPINION BY
v. Record No. 051890 SENIOR JUSTICE ROSCOE B. STEPHENSON, JR.
September 15, 2006
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
I
Upon a jury verdict in the Circuit Court of Loudoun County,
David Alan Stevens was convicted of aggravated involuntary
manslaughter, in violation of Code § 18.2-36.1. Stevens was
sentenced to 15 years in prison, and his conviction was affirmed
by a panel of the Court of Appeals. Stevens v. Commonwealth, 44
Va.App. 122, 603 S.E.2d 642 (2004). Thereafter, the Court of
Appeals, sitting en banc, also affirmed the conviction. Stevens
v. Commonwealth, 46 Va.App. 234, 616 S.E.2d 754 (2005). We
awarded Stevens this appeal.
II
Stevens contends that the trial court committed reversible
error in allowing into evidence the results of a blood alcohol
content test performed on a blood sample taken from him in
violation of his Fourth, Fifth, and Fourteenth Amendment rights.
Stevens also contends that the trial court erred in denying his
motion to dismiss the charge of aggravated involuntary
manslaughter because he had not been provided the opportunity
for an independent testing of the blood taken from him pursuant
to the implied consent law, Code § 18.2-268.2. Finally, Stevens
claims that the evidence is insufficient, as a matter of law, to
support his conviction.
III
On appeal, we must view the evidence and all reasonable
inferences fairly deducible therefrom in the light most
favorable to the Commonwealth, the prevailing party at trial.
Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786
(2003).
Approximately 2:00 a.m., on June 29, 2002, Stevens was
driving his motor vehicle north on Sterling Boulevard, a four-
lane divided highway in Loudoun County. Barry Childers was
driving his vehicle south on the same highway, and Heather
Watson was a passenger in his car.
As Childers approached the intersection of Sterling
Boulevard and East Frederick Drive, he entered the left-turn
lane with the intention of turning left onto East Frederick
Drive. Childers paused in the left-turn lane until the
controlling traffic light changed from red to a green arrow and
then proceeded to turn left. When he was "halfway through the
intersection," the car operated by Stevens struck the passenger
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side of Childers' car.1 Heather Watson died as a result of
injuries she sustained in the collision. There were no skid
marks at the scene.
Shortly after the collision, Childers approached Stevens'
car to check on the driver. According to Childers, Stevens "was
talking[,] but [Childers] couldn't understand what [Stevens] was
saying." Stevens "was just mumbling."
The first police officer to arrive at the accident scene
detected a strong odor of alcohol about Stevens' car. A rescue
worker at the scene detected a very strong odor of alcohol on
Stevens' breath, and she described Stevens as very disoriented.
Stevens told the rescue worker that he had consumed both beer
and "shots of alcohol." When asked how much he had consumed,
Stevens said, "Lots, and lots, and lots." Stevens also told the
rescue worker that he did not remember the accident, and he
asked her, "What did I hit?"
Stevens was taken to a nearby hospital for examination. At
the hospital, Stevens reported that he had consumed 12 to 24
beers prior to the accident. Hospital personnel took a sample
of Stevens' blood for testing, and the test performed on the
1
John Olivo of the Virginia Department of Transportation
explained the operation of the traffic lights at the accident
scene and stated that the traffic light controlling the
northbound lanes of Sterling Boulevard will always be red when
the southbound left-turn lane of Sterling Boulevard shows a
green arrow.
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sample indicated a blood alcohol content of .24 or .25 (the
Hospital Test).
A deputy sheriff approached Stevens at the hospital and
clearly smelled the odor of alcohol in the room where Stevens
was located. The deputy arrested Stevens for driving under the
influence of alcohol and advised Stevens about the implied
consent law. Stevens agreed to a blood test (the Implied
Consent Law Test). After two vials of blood had been drawn from
Stevens, the deputy explained to Stevens that he was entitled to
have one vial independently analyzed. The deputy further
explained that, if Stevens desired an independent analysis, he
needed to sign a certain form. Stevens responded, "I'm too
f_____ up. I can't sign s___." The Implied Consent Law Test
indicated a blood alcohol content of .21.
At trial, Dr. Carol O'Neal of the Department of Forensic
Sciences testified as an expert witness for the Commonwealth.
Dr. O'Neal stated that a blood alcohol content reading above .20
would cause a motor vehicle operator to have tunnel vision,
increased reaction time, decreased steering accuracy, and a
tendency to be inattentive. Such an operator would have trouble
adapting vision between light and dark and reduced ability to
adjust vision from far to near and vice-versa. The operator
also would have a loss of coordination and reduced ability to
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estimate a vehicle's speed and to observe traffic signals,
traffic signs, other vehicles, and pedestrians.
IV
A
Prior to trial, Stevens contended that the seizure of his
blood by the police had violated his rights contained in the
Fourth, Fifth, and Fourteenth Amendments to the Federal
Constitution. He asserted that there had been no probable cause
to support his arrest; that he had not, in fact, been arrested;
and that exigent circumstances had not supported the taking of
his blood sample without a warrant.
Following a pretrial hearing, the trial court suppressed
the certificate of analysis regarding the Implied Consent Law
Test and precluded the Commonwealth from using the presumptions
established by Code § 18.2-269. At trial, however, Dr. O'Neal
was allowed to report that the Implied Consent Law Test revealed
a blood alcohol content of .21. Stevens contends that, in doing
so, the trial court committed reversible error. We do not
agree.
In Lilly v. Commonwealth, 258 Va. 548, 551, 523 S.E.2d 208,
209 (1999), we quoted from Chapman v. California, 386 U.S. 18,
24 (1967), as follows: " '[B]efore a federal constitutional
error can be held harmless, the court must be able to declare a
5
belief that it was harmless beyond a reasonable doubt.' " We
further stated the following:
In making that determination, the reviewing court is
to consider a host of factors, including the
importance of the tainted evidence in the
prosecution's case, whether that evidence was
cumulative, the presence or absence of evidence
corroborating or contradicting the tainted evidence on
material points, and the overall strength of the
prosecution's case.
Lilly, 258 Va. at 551, 523 S.E.2d at 209.
The Hospital Test had been independently performed by
hospital personnel and the written report thereof was admissible
under Code § 19.2-187.02(A).2 It is unreasonable to believe that
the jury would have rejected the Hospital Test and accepted,
instead, the Implied Consent Law Test. Moreover, Stevens'
conduct and statements showed that he was highly intoxicated at
the time of the collision. Therefore, we conclude that any
error in permitting Dr. O'Neal to testify as to the result of
the Implied Consent Law Test was harmless beyond a reasonable
doubt, and we so hold.
2
At the time of the offense, Code § 19.2-187.02(A)
provided, in pertinent part, the following:
Notwithstanding any other provision of law, the
written results of blood alcohol tests conducted upon
persons receiving medical treatment in a hospital
emergency room are admissible in evidence as a
business records exception to the hearsay rule in
prosecutions for any violation of § 18.2-266 (driving
while intoxicated) or a substantially similar local
ordinance [and] § 18.2—36.1 (involuntary manslaughter
resulting from driving while intoxicated).
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B
Stevens also contends that the trial court erred in
refusing to dismiss the charge of aggravated involuntary
manslaughter because he had not been provided the opportunity
for an independent testing of the blood taken from him pursuant
to the implied consent law. See former Code § 18.2-268.6 (1996
& Supp. 2002).
Again, we conclude that any error was harmless beyond a
reasonable doubt, and we so hold.3 As previously noted, the
Hospital Test revealed a higher blood alcohol content than the
result reported from the Implied Consent Law Test. The Hospital
Test was an independent examination performed by hospital
personnel who had no interest in the charge against Stevens.
Both of the tests performed on Stevens' blood showed an alcohol
content in excess of .20, and it is unreasonable to believe that
a third test would have differed substantially.
V
Finally, we consider Stevens' contention that the evidence
is insufficient, as a matter of law, to support his conviction.
Code § 18.2-36.1 provides, in pertinent part, the following:
3
In its brief, the Commonwealth presents argument to
counter what it characterizes as Stevens' federal constitutional
claim. It is unclear from Stevens' brief whether he makes such
a claim, but, to the extent that he does, we have held the
Commonwealth to this more stringent harmless-error standard.
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A. Any person who, as a result of driving under
the influence in violation of clause (ii), (iii), or
(iv) of § 18.2-266 or any local ordinance
substantially similar thereto unintentionally causes
the death of another person, shall be guilty of
involuntary manslaughter.
B. If, in addition, the conduct of the defendant
was so gross, wanton and culpable as to show a
reckless disregard for human life, he shall be guilty
of aggravated involuntary manslaughter.
When a person challenges the sufficiency of the evidence,
we must view the evidence in the light most favorable to the
Commonwealth and give the Commonwealth all reasonable inferences
fairly deducible therefrom. Dowden v. Commonwealth, 260 Va.
459, 461, 536 S.E.2d 437, 438 (2000). Further, a jury's verdict
should not be disturbed on appeal unless the verdict was plainly
wrong or without evidence to support it. Stockton v.
Commonwealth, 227 Va. 124, 145-46, 314 S.E.2d 371, 385 (1984).
Stevens first asserts that the evidence was insufficient,
as a matter of law, to prove that he was intoxicated at the time
of the accident. We disagree.
There is ample evidence that Stevens was extremely
intoxicated. The Hospital Test showed that Stevens' blood
alcohol content was .24 or .25, approximately three times the
legal limit. As previously related, an expert testified about
the effect that this amount of alcohol would have on an operator
of a motor vehicle. There was also evidence that Stevens did
not remember what he had hit. Stevens admitted he had consumed
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between 12 and 24 beers before the accident, and witnesses who
observed Stevens after the accident testified that Stevens was
mumbling, confused, and had a strong odor of alcohol about him.
Clearly, there was substantial evidence from which the jury
could find that Stevens was intoxicated at the time of the
accident.
Next, Stevens asserts that the evidence was insufficient,
as a matter of law, to prove that he caused Watson's death. The
evidence, as previously related, established that Childers had
received a green arrow before undertaking his left-hand turn and
that, when the arrow was green, Stevens would have faced a red
light. No skid marks were found at the scene, indicating that
Stevens never applied his brakes prior to striking Childers'
car. As discussed above, Stevens was highly intoxicated. From
all the evidence presented, the jury properly could have
concluded that Stevens caused Watson's death.
Finally, Stevens asserts that the evidence is insufficient,
as a matter of law, to prove that his conduct was gross, wanton,
and culpable. Again, we focus upon Stevens' high level of
intoxication, approximately three times the legal limit. This
alone justifies a finding that Stevens' conduct was gross,
wanton, and culpable. In addition to the high degree of
intoxication, other facts support the jury's finding. Stevens
9
ran a red light, failed to apply his brakes before the
collision, and did not know what he had struck.
VI
For the foregoing reasons, we will affirm Stevens'
conviction for aggravated involuntary manslaughter.
Affirmed.
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