State of Louisiana v. Brynton Kelli Simmons

Judgment rendered October 6, 2021.
Application for rehearing may be filed
within the delay allowed by Art. 922,
La. C. Cr. P.

No. 54,026-KA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

STATE OF LOUISIANA Appellee

versus

BRYNTON KELLI SIMMONS Appellant

*****

Appealed from the
Twenty-Sixth Judicial District Court for the
Parish of Webster, Louisiana
Trial Court No. 92349

Honorable Michael Owens Craig, Judge

*****

WHITLEY R. GRAVES, APLC Counsel for Appellant
By: Whitley Robert Graves

JOHN SCHUYLER MARVIN Counsel for Appellee
District Attorney

HUGO A. HOLLAND, JR.
JOHN MICHAEL LAWRENCE
Assistant District Attorneys

*****

Before PITMAN, STONE, and STEPHENS, JJ.

PITMAN, J., concurs in the result.

STONE, J.

This criminal appeal arises from the Twenty-Sixth Judicial District

Court in Webster Parish, the Honorable Michael O. Craig presiding. The

defendant, Brynton Kelli Simmons (“Simmons”), was convicted by a

unanimous jury of vehicular homicide, as defined by La. R.S. 14:32.1, and

was sentenced to 8 years at hard labor with credit for time served from the

date of arrest. The defendant now appeals.

For the following reasons, Defendant’s conviction and sentence are

affirmed.

FACTS

On October 28, 2016, the defendant, Simmons, and the victim, Kelly

Birdwell (“Birdwell”), had a head on collision on LA 157 near the center of

the road. Both vehicles were found on the wrong sides of the road, and

Birdwell died as a result of the injuries sustained in the crash. The

defendant, Simmons, was taken to the hospital for treatment of the injuries

he sustained in the crash and received 10 units of morphine and two Percocet

pills from medical personnel. The defendant also had alcohol and four other

drugs in his system which were not administered by medical personnel; to

wit: diazepam, fluoxetine, tramadol, and dextromethorphan.

At the hospital, Trooper Glenn Allen Younger (“Younger”) of the

Louisiana State Police sought the defendant’s consent for a blood test.

Simmons refused twice, but eventually consented after Trooper Younger

discussed the “pros and cons” of consenting and not consenting. The

conversation included Trooper Younger telling the defendant that there

could be “jail time” if he refused the test, and that the victim’s family might

be able to successfully sue the defendant in civil court if he could not prove

that he was not inebriated.

Simmons’ blood was drawn by a hospital employee whose name tag

bore the designation “RN.” Trooper Younger did not remember her exact

name, but thought he remembered her name being “Ms. Adams.” The

defendant’s counsel unsuccessfully filed a motion to suppress the blood

sample.

At trial, Trooper Younger and Trooper Garrett Monroe testified that

they believed a warrant was not necessary because the defendant consented.

Both state troopers testified that the defendant was alert, coherent and in his

right frame of mind and correctly gave the day of the week and his name.

Also, both troopers testified that the defendant gave no sign that the

morphine he received from the ambulance personnel affected his ability to

understand.

Three trial witnesses who responded to the scene of the accident

testified to smelling alcohol inside Simmons’ vehicle. The State introduced

evidence that the defendant had alcohol and four different drugs in his

system and was driving over the center line of the highway at a speed of 70

mph in a 55-mph zone. The State introduced evidence that the defendant’s

blood alcohol concentration was .07% when his blood was drawn, but

testimony from experts in blood alcohol testing concentration and forensic

toxicologists estimated that the defendant’s blood alcohol concentration was

.09 to 0.12% two hours before his blood was drawn and at the time the

accident occurred.1

1
The State utilized the toxicology report of Simmons’ blood sample at trial, but did not introduce
the blood sample itself.
2

Additionally, the State introduced the defendant’s black box data at

trial. The black box recorded the last five seconds before impact. For the

first three seconds Simmons traveled straight, then suddenly he veered right

and then to his left. The trial court accepted Trooper Verhoef as an accident

reconstruction expert. Trooper Vehoef testified that the defendant’s veer to

his right was consistent with trying to avoid a hazard in his lane of travel.

Simmons called Dr. Jeffrey Bennett (“Bennett”) as an expert witness.

The trial court accepted Dr. Bennett as an expert in pharmacology, but

rejected him as an expert in retrograde blood alcohol analysis.

DISCUSSION

Simmons enumerates four assignments of error, but there are actually

five: (1) the evidence was insufficient to convict him because it did not

disprove the reasonable hypothesis that the collision was caused by Kelly

Birdwell swerving into Simmons’ lane; (2) the trial court erred in denying

the pre-trial motion to suppress the blood sample; (3) the trial court erred in

allowing testimony concerning the blood sample when the person who drew

the blood sample did not testify to her qualifications under La. R.S. 32:664;

(4) the trial court erred in allowing testimony concerning the blood samples

because they were not introduced at trial; and (5) the trial court erred in

refusing to recognize Dr. Bennett as an expert in retrograde blood alcohol

concentration analysis.

Sufficiency of the Evidence

Simmons argues that the evidence at trial was insufficient to support

his conviction because it did not disprove the reasonable hypothesis that the

collision was caused by Birdwell swerving into Simmons’ lane.

3

The standard of review for the sufficiency of the evidence to uphold a

conviction is whether viewing the evidence in the light most favorable to the

prosecution any, rational trier of fact could have found the essential elements

of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,

319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); State v. Tate, 01-1658

(La. 5/20/03), 851 So. 2d 921, cert. denied, 541 U.S. 905, 124 S. Ct. 1604,

158 L. Ed. 2d 248 (2004); State v. Ward, 50,872 (La. App. 2 Cir. 11/16/16),

209 So. 3d 228, writ denied, 17-0164 (La. 9/22/17), 227 So. 3d 827. This

standard, now legislatively embodied in La. C. Cr. P. art. 821, does not

provide the appellate court with a vehicle to substitute its own appreciation

of the evidence for that of the factfinder. State v. Ward, supra; State v.

Dotie, 43,819 (La. App. 2 Cir. 1/14/09), 1 So. 3d 833, writ denied, 09-0310

(La. 11/6/09), 21 So. 3d 297. On appeal, a reviewing court must view the

evidence in the light most favorable to the prosecution and must presume in

support of the judgment, the existence of every fact the trier of fact could

reasonably deduce from the evidence. Jackson, supra.

The appellate court does not assess the credibility of witnesses or

reweigh evidence. State v. Smith, 94-3116 (La. 10/16/95), 661 So. 2d 442;

State v. Ward, supra. A reviewing court accords great deference to a jury’s

decision to accept or reject the testimony of a witness in whole or in part.

State v. Ward, supra; State v. Eason, 43,788 (La. App. 2 Cir. 2/25/09), 3 So.

3d 685, writ denied, 09-0725 (La. 12/11/09), 23 So. 3d 913.

The Jackson, supra, standard is applicable in cases involving both

direct and circumstantial evidence. An appellate court reviewing the

sufficiency of evidence in such cases must resolve any conflict in the direct

evidence by viewing that evidence in the light most favorable to the
4

prosecution. When the direct evidence is thus viewed, the facts established

by the direct evidence and inferred from the circumstances established by

that evidence must be sufficient for a rational trier of fact to conclude

beyond a reasonable doubt that defendant was guilty of every essential

element of the crime. State v. Sutton, 436 So. 2d 471 (La. 1983); State v.

Ward, supra; State v. Speed, 43,786 (La. App. 2 Cir. 1/14/09), 2 So. 3d 582,

writ denied, 09-0372 (La. 11/06/09), 21 So. 3d 299.

To convict a defendant based upon circumstantial evidence, every

reasonable hypothesis of innocence must be excluded. La. R.S. 15:438;

State v. Barakat, 38,419 (La. App. 2 Cir. 6/23/04), 877 So. 2d 223. In the

absence of internal contradiction or irreconcilable conflict with the physical

evidence, the testimony of one witness, if believed by the trier of fact, is

sufficient support for a requisite factual conclusion. State v. Burd, 40,480

(La. App. 2 Cir. 1/27/06), 921 So. 2d 219, writ denied, 06-1083 (La.

11/9/06), 941 So. 2d 35.

At the time of the defendant’s arrest, the statute defining

vehicular homicide, La. R.S. 14:32.1 provided, in pertinent part:

A. (1) is the killing of a human being caused
proximately or caused directly by an offender
engaged in the operation of, or in actual physical
control of, any motor vehicle, aircraft, watercraft, or
other means of conveyance, whether or not the
offender had the intent to cause death or great bodily
harm, whenever any of the following conditions
exists and such condition was a contributing factor to
the killing:

B. The operator is under the influence of alcoholic
beverages as determined by chemical tests
administered under the provisions of R.S. 32:662.

C. The operator's blood alcohol concentration is 0.08
percent or more by weight based upon grams of
alcohol per one hundred cubic centimeters of blood.
5

D. The operator is under the influence of any controlled
dangerous substance listed in Schedule I, II, III, IV,
or V as set forth in R.S. 40:964.

E. The operator is under the influence of alcoholic
beverages.

F. The operator is under the influence of a combination
of alcohol and one or more drugs which are not
controlled dangerous substances and which are
legally obtainable with or without a prescription.

The defendant, in effect, argues that the evidence was insufficient to

prove beyond a reasonable doubt that he proximately caused the victim’s

death (as required by La. R.S. 14:32.1(A)(1)) because the evidence creates a

reasonable hypothesis that the victim swerved into his lane first.

As previously mentioned, Trooper Vehoef testified that the

defendant’s veer to his right was consistent with trying to avoid a hazard in

his lane of travel. However, Trooper Verhoef’s testimony does not bear any

indication that it was the victim swerving into defendant’s lane that caused

him to veer right. For example, the defendant could have veered to the right

because he was intoxicated and/or not paying attention. A reasonable juror

could conclude that something other than the victim swerving into the

defendant’s lane caused the defendant to initially swerve to the right.

Therefore, this assignment of error lacks merit and is rejected.

Admissibility of evidence related to blood sample

A. Constitutional violations

Simmons argues that the trial court erred in denying his pre-trial

motion to suppress the blood sample and evidence derived therefrom. The

defendant asserts that Trooper Younger was required to have a search

warrant to conduct the blood alcohol test because a blood draw is a search
6

within the meaning of the Fourth Amendment, and Trooper Younger had

neither a warrant nor valid consent from the defendant.2 The defendant

argues pursuant to Birchfield vs. North Dakota, 136 S. Ct. 2160, 195 L. Ed.

2d 560 (2016), that his consent to the blood draw was invalid because he

was threatened with criminal consequences if he refused.

The Fourth Amendment to the United States Constitution and Article

1, Section 5, of the Louisiana Constitution protect people against

unreasonable searches and seizures. The Fourth Amendment of the U.S.

Constitution states:

The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures,
shall not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons
or things to be seized.

To claim the protection of the Fourth Amendment, the claimant must

have a legitimate expectation of privacy in the place of search and the

expectation must be one that society is prepared to recognize as reasonable.

State v. Boyette, 52, 411 (La. App. 2. 1/16/2019), 264 So. 3d. 625;

Minnesota v. Olsen, 495 U.S. 91, 110 S. Ct. 1684, 109 L. Ed. 2d. 85 (1990).

It is well settled that a search and seizure conducted without a warrant

issued on probable cause is per se unreasonable unless the warrantless

search and seizure can be justified by one of the narrowly drawn exceptions

2
The State argues that the warrantless search of taking defendant’s blood sample
did not require a warrant because at the Motion to Suppress hearing, the State called
Trooper Younger who testified that he was trained in recognizing the influence of drugs on
people from his training at the Louisiana State Police Training Academy and was a certified
as a SFST instructor, certified in ARIDE and DRE. SFST stands for Standardized Field
Sobriety Test. Trooper Younger testified at the Motion to Suppress hearing that officers
can receive certification in SFST at the academy. He testified that he went further and
became a SFST instructor. He also testified that he received ARIDE certification. ARIDE
stands for Advanced Roadside Impaired Driving Enforcement. Trooper Younger testified
at the Motion Suppress hearing that he furthered his education by becoming a Drug
Recognition Expert (DRE).
7

to the warrant. State v. Bates, 51,890 (La. App. 2 Cir. 2/28/18), 246 So. 3d

672; State v. Thompson, 02-0333 (La. 4/9/03), 842 So. 2d 330; State v.

Tatum, 466 So. 2d 29 (La 1985); State v. Howard, 49, 965 (La. App. 2 Cir.

6/24/15), 169 So. 3d 777, af’d, 15-1404 (La. 5/3/17), 226 So. 3d 419; State

v. Ledford, 40, 318 (La. App. 2 Cir. 10/28/05), 914 So. 2d 1168. La. C. Cr.

P. art 703 states, “a defendant adversely affected may move to suppress any

evidence from use at the trial on the merits on the ground that it was

unconstitutionally obtained.” This is known as the exclusionary sanction.

A blood draw constitutes a search and a seizure within the meaning of

the Fourth Amendment. Birchfield, supra. Because the officer did not have a

warrant authorizing the blood draw, an exception to the warrant requirement

must be applicable; otherwise the blood sample must be suppressed. In this

case, two exceptions are implicated by the facts: (1) the exigent

circumstances doctrine; and (2) consent. We examine the applicability of

each of these exceptions to the warrant requirement in turn.

Exigent circumstances. Under the exception for exigent

circumstances, a warrantless search is allowed if: (1) the police officer has

probable cause to arrest or search; and (2) there are exigent circumstances

justifying nonconsensual warrantless intrusion. State v. Magee, 17-1217 (La.

App. 1 Cir. 2/27/18), 243 So. 3d 151. Such exigent circumstances exist if

“there is compelling need for official action and no time to secure a

warrant.” Missouri v. McNeely, 569 U.S. 141, 133 S. Ct. 1552, 185 L. Ed. 2d

696 (2013) quoting Michigan v. Tyler, 436 U.S. 499, 98 S. Ct. 1942, 56 L.

Ed. 2d 486 (1978); State v. Miller, 53,356 (La. App. 2 Cir. 4/22/20), 295 So.

3d 443.

8

In Schmerber v. California, 384 U.S. 757, 86 S. Ct. (1826), 16 L. Ed.

2d 908 (1966), the United States Supreme Court upheld the warrantless

blood test of an individual arrested for driving under the influence of alcohol

because the officer “might reasonably have believed that he was confronted

with an emergency, in which the delay necessary to obtain a warrant, under

the circumstances, threatened the destruction of evidence.” Id. at 770.

Missouri v. McNeely, supra, held that the natural metabolization of alcohol

in the bloodstream does not constitute a per se exigency that allows an

exception to the warrant requirement for nonconsensual blood testing in all

drunk-driving cases. Id. at 145. Rather, whether a sufficient exigency exists

depends on the totality of the circumstances of the case. Id.

In State v. Miller, supra, this Court held that nonconsensual

warrantless blood sample taken from the defendant was valid under the

doctrine of exigent circumstances. In a rural area around 6:45 a.m., the

defendant was operating a motor vehicle and veered across the centerline,

thereby causing a collision that killed another person. The officers

responding to the accident took 45 to 60 minutes to arrive at the scene.3

They found Miller unconscious and in critical condition, and quickly became

aware that he had swerved into the victim’s lane and thereby caused the

crash. The officers also discovered that someone had seen Miller driving in

the wrong lane of the highway earlier that morning (prior to the crash). This

gave them probable cause to believe that Miller had been driving while

intoxicated. Because the defendant was unconscious, he could not perform a

breath test or undergo a field sobriety test. Thus, the troopers could not

3
This was partly because of the location of the accident and partly because the timing of the
accident coincided with a shift change at the responding law enforcement agency.
9

otherwise obtain proof of the defendant’s intoxication. Miller’s blood was

drawn at 9:04 a.m., right before Miller became unavailable for a blood

sample because he was going into surgery. The blood evidence of Miller’s

intoxication may have been lost if the police waited until after surgery.

Accordingly, exigent circumstances existed to justify the warrantless blood

sample.

In this case, the exigent circumstances doctrine validates the

warrantless taking of the blood sample. Like Miller, supra, the defendant

was operating a motor vehicle involved in a collision in which a fatality

resulted, and his vehicle was found across the center line. Three witnesses

testified that they smelled alcohol coming from the defendant’s vehicle. Like

the defendant in Miller, Simmons was injured in the wreck and was taken to

the hospital for that reason. Trooper Younger testified that when he arrived

at the hospital he performed the standard Horizontal Gaze Nystagmus

(“HGN”) test, and the defendant showed all six of the signs of intoxication

identifiable from an HGN test. As mentioned earlier, Trooper Younger is

certified in SFST, ARIDE and DRE. The defendant admitted to Trooper

Younger that he had been drinking, and the defendant confirmed that in his

own testimony.4 These facts amply supplied Trooper Younger with probable

cause to believe that Simmons had been driving while intoxicated in causing

the wreck. Also, like in Miller, the blood sample was taken two or three

hours after the accident. Given the evanescence of intoxicants in the

bloodstream, Trooper Younger faced the risk that if he did not act quickly,

4
During the Motion to Suppress hearing the defendant took the stand. The
defendant admitted that he initially lied to Trooper Younger in saying that he had not been
drinking.

10

proof of Simmons’ vehicular homicide would be lost. Accordingly, we hold

that the exigent circumstances doctrine validates the warrantless taking of

the blood sample in this case. For this reason alone, this assignment of error

lacks merit and is rejected.

Consent. The defendant argues that, pursuant to Birchfield, supra, his

consent to the blood test was invalid because Trooper Younger “coerced”

him.

A warrantless search conducted pursuant to valid consent is permitted

by the Louisiana and United States Constitutions. State v. Boyette, 52, 411

(La. App. 2 Cir. 1/16/19), 264 So. 3d 625. For consent to search to be valid,

it must be given freely and voluntarily, i.e., in circumstances that indicate

the consent was not the product of coercion, threat, promise, pressure or

duress that would negate the voluntariness. Id.

Birchfield, supra, does not support the defendant’s argument. The

defendant fails to acknowledge that Birchfield, supra, explicitly declined to

hold that the threat of criminal prosecution for refusal to be tested for

intoxication renders consent invalid. We decline to hold that Trooper

Younger giving Simmons what amounts to bad legal advice invalidated

Simmons’ consent.

Furthermore, Simmons argument that his intoxication invalidated his

consent also lacks merit. Both State Troopers testified that the defendant was

alert, coherent and in his right frame of mind and correctly gave the day of

the week, and his name. Both Troopers testified that the defendant gave no

sign that the morphine he received from the ambulance personnel affected

his ability to understand. Although the defendant was in pain and had taken

ten milligrams of morphine, he was coherent and alert enough to sign the
11

consent form for treatment at the hospital roughly fifteen or twenty minutes

before Trooper Younger arrived to get the defendant’s version of the

accident. This assignment of error lacks merit. The defendant’s consent to

the search was valid.

B. La. R.S 32:661

Additionally, the defendant argues that the trial court erred in denying

his pre-trial motion to suppress the blood alcohol results because Trooper

Younger failed to comply with the implied consent statute, La. R.S. 32:661.

However, La. R.S. 32:661, which only applies to defendants who are under

arrest, does not apply to this case because the defendant was not under

arrest. Therefore, Trooper Younger did not have to inform the defendant of

any rights under La. R.S. 32:661. This argument lacks merit.

C. Qualifications of Person Drawing the Blood

The defendant asserts that the trial court erred in allowing testimony

concerning the blood samples when the person who drew the sample did not

testify about her qualifications under La. R.S. 32:664.

Our review of the record shows that the State did provide testimony that

a qualified person drew the defendant’s blood sample. Trooper Younger

testified that he witnessed the woman who drew the blood sample from

Simmons, and that she had the designation “RN” on her name tag; and that

he believed her name to be Mrs. Adams. Therefore, the State adequately

proved that a registered nurse is the person who drew the blood.

D. Testimonial Evidence regarding Blood sample not Introduced
at Trial

The defendant asserts that the trial court erred in allowing testimony

concerning the blood sample because the blood sample itself was not

12

introduced at trial. The defendant cites no authority for this proposition. In

our research, we have found no such authority, and we are unwilling to

create any. This assignment of error lacks merit.

E. Qualification of Dr. Bennett as an expert

The defendant asserts the trial court’s ruling denying expert witness

status to Dr. Bennett as an expert in retrograde extrapolation of alcohol

elimination rate was an error. Admissibility of expert testimony in Louisiana

is governed by La. C. E. art. 702, which provides as follows:

A witness who is qualified as an expert by knowledge, skill,
experience, training, or education, may testify in the form of
an opinion or otherwise if:

1. The expert’s scientific, technical, or other specialized
knowledge will help the trier of fact to understand the
evidence or to determine a fact in issue;
2. The testimony is based on sufficient facts or data;
3. The testimony is the product of reliable principles and
methods; and
4. The expert has reliably applied the principles and methods to
the facts of the case

The trial court has great discretion in determining the competence of an

expert witness, and that determination will not be overturned absent an

abuse of discretion. State v. Castleberry,758 So. 2d 749 (La. 1999); State v.

Bourque, 622 So. 2d 198 (La. 1993); State v. Trahan, 576 So. 2d 1 (La.

1990). Trial judges are thus afforded “great latitude” in deciding whether a

proffered expert has the competence, background and experience to testify

as an expert. Clement v. Griffin, 634 So. 2d 412 (La. App. 4 Cir. 1994);

Pearce v. Power & Tel. of Kentucky, Inc., 533 So. 2d 46 (La. App. 3 Cir.

1988). Although such discretion is not absolute, the decision to qualify an

expert witness may not be reversed in the absence of clear error. Clement v.

13

Griffin, 634 So. 2d 412 (La. App. 4 Cir. 1994); Breeden v. Valencia, Inc.,

557 So. 2d at 302 (La. App. 4 Cir.1990).

Initially, the defendant tendered Dr. Bennett as an expert in

pharmacology, not retrograde extrapolation blood analysis. Dr. Bennett

testified regarding his qualifications as follows: (1) he holds a Bachelor of

Science in biology and a minor in chemistry degree from Louisiana Tech

University in Ruston; (2) he also holds a Bachelor in Science in pharmacy

from the University of Louisiana at Monroe, formerly known as Northeast

Louisiana University; and (3) Doctor of Pharmacy or PharmD from the

University of Arkansas. Dr. Bennett testified that he did not take any classes

on retrograde extrapolation, but he did purchase several sources to educate

himself on the subject. Furthermore, Dr. Bennett admitted on direct

examination that he had never testified as in expert on retrograde

extrapolation and testified that he has never taught any classes on retrograde

extrapolation to his pharmacological students, and that he did not recall any

questions regarding extrapolation on the pharmacy test. We cannot say the

trial court abused its vast discretion in not accepting Dr. Bennett as an expert

in retrograde extrapolation of alcohol.

CONCLUSION

For the foregoing reasons, the defendant’s conviction and sentence are

AFFIRMED.

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