515 N.E.2d 652 | Ohio Ct. App. | 1986
Lead Opinion
James Kavlich, defendant-appellant, was indicted for the following crimes: (1) two counts of aggravated vehicular homicide (of Laura Donnell and Frances Telekese) with driving under the influence of alcohol and violence specifications; and (2) driving under the influence of alcohol. (There was a nolle prosequi as to the driving under the influence count.)
Defense counsel filed a motion to suppress the results of a blood-alcohol test administered by defendant's treating physician on the ground that it violated the physician-patient privilege pursuant to R.C.
Defendant pled no contest to the crimes charged. The prosecutor stated that the evidence would show that on October 19, 1984, at approximately 3:40 a.m., defendant was driving north on Warren Road. Defendant veered his car over the center line and struck an automobile head-on that was proceeding south, killing Laura Donnell, the passenger in the car, who was pronounced dead at 4:39 a.m. Frances Telekese, the driver, suffered injuries and ultimately died on November 15, 1984.1 The coroner testified that the deaths were the result of the automobile collision.
Defendant was transported to the hospital for treatment of injuries he sustained. Defendant's physician ordered a blood analysis. The results of this test revealed that defendant's blood-alcohol content level was .152.
The court found defendant guilty as charged. Defendant filed the instant appeal, raising three assignments of error.
R.C.
"The following persons shall not testify in certain respects:
"* * *
"(B) A physician concerning a communication made to him by his patient in that relation or his advice to his patient but the physician may testify by express consent of the patient * * *."
Appellant contends that pursuant to R.C.
In Dress, supra, at 261, 10 OBR at 375-376,
"`* * * The purpose of this [physician-patient] privilege is to encourage patients to make a full disclosure of their symptoms and condition to their physicians without fear that such matters will later become public. Against the interest of the patient inhaving his condition remain confidential, must be balanced theinterest to the public in detecting crimes in order to protectsociety.' * * * [State v. Antill (1964),
"* * *
"We concede that the law, to a reasonable degree, should encourage a frank and uninhibited flow of information between doctor and patient by protecting their private, confidential communications. However, the privilege is not absolute and must yield when the public interest outweighs the policy considerations supporting the privilege. This is especially so in the context of a prosecution for the offense of driving while intoxicated. To allow the privilege to be invoked so as to exclude evidence tending to prove that appellant was driving while intoxicated would be against the public interest and would not serve the purpose of R.C.
"* * *
"As we noted above, R.C.
Similarly, in Tu, supra, where the defendant was charged with driving while intoxicated and vehicular homicide, the court held that the physician-patient privilege does not preclude the admission of blood-alcohol test results:
"Unlike the Dress case, appellant's intoxicated driving in this case proximately caused another person's death. Consciously inebriating oneself to the point where driving a car becomes as dangerous (and as deadly) as recklessly discharging a firearm on a public sidewalk is inexcusable conduct that cannot be tolerated. We can hardly give our tacit imprimatur to it by approving the use of an artificial evidentiary privilege that excludes probative evidence of illegality. State v. Dress,supra, at 261-262. Simply put, the privilege must yield to competent evidence of conduct the law defines as criminal. The overriding public policy favoring the sensible and effective enforcement of R.C.
We conclude that the public policy of sensibly enforcing R.C.
Although appellant incorrectly labels this assigned error in terms of weight of the evidence, in essence, he is contending that the facts recited by the prosecutor did not establish that he committed aggravated vehicular homicide. At most, appellant contends he committed vehicular homicide.
In State v. Thorpe (1983),
"The trial court has clear authority in a felony case to determine whether the facts alleged in the indictment, information, or complaint are sufficient to justify conviction of the offense charged. If an indictment alleges facts sufficient to support a conviction, the trial court's acceptance of a no contest plea requires a guilty finding. If not, the court may dismiss the charge or find the defendant guilty of a lesser included offense which is shown by those alleged facts."
See, also, Cleveland v. Technisort, Inc. (1985),
The crime of aggravated vehicular homicide is defined in R.C.
"No person, while operating or participating in the operation of a motor vehicle, * * * shall recklessly cause the death of another." (Emphasis added.)
Vehicular homicide is similar to aggravated vehicular homicide except that it is couched in terms of negligence, not recklessness. R.C.
"No person, while operating or participating in the operation of a motor vehicle, * * * shall negligently cause the death of another." (Emphasis added.)
The issue presented is whether appellant acted recklessly or negligently. R.C.
"(C) A person acts recklessly when, with heedless indifference to the consequences, he perversely disregards a known risk that his conduct is likely to cause a certain result or is likely to be of a certain nature. A person is reckless with respect to circumstances, when, with heedless indifference to the consequences, he perversely disregards a known risk that such circumstances are likely to exist.
"(D) A person acts negligently when, because of a substantial lapse from due care, he fails to perceive or avoid a risk that his conduct may cause a certain result or may be of a certain nature. A person is negligent with respect to circumstances when, because of a substantial lapse from due care, he *244 fails to perceive or avoid a risk that such circumstances may exist."
Appellant relies in part on State v. Gates (1983),
"Considering this evidence alone there was no evidence whatever of any improper or erratic driving conduct on the part of the decedent and the evidence as to the defendant's driving conduct tended to prove, at most, only common-law negligence on his part or negligence per se by virtue of his statutory violations, but in no event did such evidence tend to prove, in and by itself, the defendant's mental state and that he had acted recklessly." (Emphasis added.)
However, appellant neglected to quote the court when it said:
"In these circumstances the jury could properly conclude that the defendant knew his own condition, knew also that driving his car in such condition was likely to cause him to drive in such manner as to cause a collision with another car, and with heedless indifference to these consequences, perversely disregarded such known risk and, nevertheless, drove his car from the Red Fox Inn to the point of the collision. Such conclusion is tantamount to a conclusion that the defendant operated his vehicle recklessly and, with the other evidence as to causation, thus caused the death of another." Id. at 268, 10 OBR at 383,
In essence, Gates supports the state's position, not appellant's.
Appellant cites Chockley, supra, for the proposition that the use of alcohol alone is insufficient proof of recklessness. However, as pointed out in State v. Hennessee (1984),
"* * * In Chockley the court held a defendant in a civil case could not be held liable for punitive damages, although defendant was intoxicated while driving, without other evidence of actual malice. Appellant asserts this is the standard `recklessness' must meet for a conviction under R.C.
"Under prior law, R.C.
The Hennessee court then interpreted R.C.
"The record reveals appellant was driving while under the influence of alcohol, and failed to yield the right-of-way, causing the accident and the victim's death. A person is said to be `reckless,' pursuant to R.C.
See, also, State v. Dudock (1983),
In the case sub judice, the prosecutor stated that appellant (1) had a blood-alcohol content level of .152; (2) veered his car over the center line; and (3) collided head-on with another vehicle, causing the death of two women. By driving while under the influence appellant disregarded a known risk that his conduct would create substantial injury to himself and others. There were sufficient facts presented to sustain the conviction.
Appellant's second assigned error is overruled.
Appellant challenges the inclusion of two violence specifications to his indictment.
R.C.
"Imposition of an indefinite term pursuant to division (B) * * * (7) of section
Appellant incorrectly speaks of the violence specification as an additional element of aggravated vehicular homicide, viz., surplusage, and asserts that the violence specifications should have been deleted. In State v. Jones (Apr. 3, 1986), Cuyahoga App. No. 50362, unreported, at 4, a case involving a conviction for aggravated vehicular homicide, this court ruled that the violence specification "is not an element of the offense but rather a factor which permits the imposition of an indefinite sentence." The trial court was therefore warranted in overruling appellant's motion to strike the violence specifications as surplusage.
Appellant's third assignment of error is overruled.
Judgment affirmed.
PARRINO, J., concurs.
MARCUS, C.J., concurs separately.
Concurrence Opinion
While I agree that we should affirm the defendant's conviction, I reach that conclusion for significantly different reasons. In my view, the trial judge did not decide that the statutory physician-patient privilege is inapplicable here. Further, we should not review such a pretrial advisory ruling even if the trial court had made that decision. Finally, I believe that this court should not follow the Sixth District cases by allowing judicial policy preferences to override a valid legislative enactment. *246
Defendant's counsel moved to suppress evidence about the blood sample which the defendant's physician obtained while treating the defendant's injuries. He premised that motion on two independent theories: (a) an alleged federal constitutional violation by extracting blood, and (b) a claimed state statutory privilege for physician-patient communications. If the former reason had merit, it would justify an order to suppress that evidence. If the latter reason had apparent merit, it could justify an advisory ruling in limine, until the prosecutor demonstrated admissibility during the trial.
The claimed privilege would not justify a pretrial suppression order. Cf. Columbus v. Sullivan (1982),
The trial court did not expressly rule whether the statutory privilege would apply here. Instead, the court denied the motion to suppress, saying:
"The court is prepared to rule on the question of blood alcohol. I find that it's perfectly proper for the doctor to draw a blood sample from Mr. Kavlich [the defendant]. I do not find a constitutional violation.
"There is a substantial difference between civil law and criminal law and simply stated, the public policy demands this answer: public policy as it relates to criminal cases."
If the court denied the motion for lack of any constitutional reason to suppress the blood evidence, the ruling was clearly proper. Cf. Schmerber v. California (1966),
A plea bargain which conditions the plea on appellate review of a liminal decision may conceivably justify appellate review of that ruling. Columbus v. Sullivan, supra. Otherwise, a no contest plea precludes appellate review for the denial of a motion inlimine. Id. There was no plea bargain here. Since a pretrial ruling in limine makes no final decision about admissibility, Crim. R. 12(H) does not permit its review after a no contest plea. Id.
However, if the trial court had rejected the statutory privilege and if we could review that ruling, I would reverse. The prosecutor relies on two Sixth District decisions that public policy favors reliable evidence in drunken driving cases and overrides the statutory physician-patient privilege. State v.Dress, supra; State v. Tu, supra.
Those decisions suggest that courts can decide which statutes must yield to judicially perceived public policy. However, the legislature is the final arbiter of public policy, unless its acts contravene the state or federal Constitutions. The Ohio Constitution vests the legislative power to resolve policy issues in the General Assembly. Section
Certainly, the public policy favoring convictions for even graver crimes would equally justify a decision to disregard this privilege. If the statutory physician-patient privilege is subject to judicial policy preferences, the statutory attorney-client privilege may be similarly vulnerable. If judicial policy preferences override this statute in criminal cases, there is no assurance that they cannot override it in civil cases. In other words, courts should not forget that the legislature's valid laws control policy preferences.
In my view, the Sixth District cases misread and mistakenly relied on the Supreme Court's decision in State v. Antill (1964),
The Antill decision concluded that the legislature intended to require disclosure and testimony about gunshot wounds, despite the otherwise applicable physician-patient privilege. It did not conclude that the physician-patient privilege is inapplicable to evidence about serious crimes. Nor did it conclude that courts can discard that statutory privilege when they feel compelled to do so. There is no legislative policy that the statutory physician-patient privilege is inapplicable in drunken driving cases, if it is otherwise applicable.
Hence, I would affirm the defendant's conviction for the reasons stated earlier, rather than the reasons provided in the majority opinion.