State of Louisiana v. Sherry S. Bailey

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

04-1571

STATE OF LOUISIANA

VERSUS

SHERRY S. BAILEY

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APPEAL FROM THE
SEVENTH JUDICIAL DISTRICT COURT
PARISH OF CONCORDIA, NO. 03-1177
HONORABLE KATHY A. JOHNSON, DISTRICT JUDGE

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ELIZABETH A. PICKETT
JUDGE

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Court composed of Jimmie C. Peters, Marc T. Amy, and Elizabeth A. Pickett, Judges.

CONVICTION REVERSED AND SET ASIDE;
APPELLANT ACQUITTED.

Amy, J., dissents and assigns written reasons.

Hon. John Frederick Johnson
District Attorney, 7th JDC
Ronnie Owen McMillin
Assistant District Attorney
4001 Carter St., Suite 9
Vidalia, La 71373
(318) 336-7121
Counsel for State-Appellee:
State of Louisiana

G. Paul Marx
Attorney at Law
P. O. Box 82389
Lafayette, LA 70598-2389
(337) 237-2537
Counsel for Defendant-Appellant:
Sherry S. Bailey

PICKETT, Judge.

FACTS

On May 30, 2003, shortly after 9:00 p.m., an automobile driven by the

defendant struck an automobile driven by Lillie C. Ingram on Highway 84 in

Concordia Parish. According to witnesses, Ms. Ingram’s car was stopped on the

highway in a left-hand lane proximate to a store when it was struck from the rear by

the defendant’s car. The responding officer interviewed the defendant. Following

that interview, and based on his observations and field sobriety tests, the officer

arrested the defendant for driving while intoxicated. Ms. Ingram was removed from

her vehicle and placed in an ambulance, where she was pronounced dead by the

coroner at 10:05 p.m.

On August 6, 2003, the defendant, Sherry Bailey, was charged with vehicular

homicide, a violation of La.R.S. 14:32.1. On May 3, 2004, the bill of information

was amended to include the allegation that at the time of the accident which caused

the victim’s death, the defendant was under the influence of alcohol or a combination

of drugs and alcohol and that her blood alcohol concentration exceeded 0.08 percent.

On May 10, 2004, and following the trial, the jury found the defendant guilty

as charged. On August 18, the trial court sentenced the defendant to six years

imprisonment at hard labor, a fine of $2000 and court costs. The trial court further

specified that the first year of the sentence was to be served without benefit of

probation, parole or suspension of sentence and ordered the defendant to attend a

substance abuse program.

1

On August 30, 2004, a judgment of felony conviction was entered, and on

September 22, 2004, a motion for appeal was filed. The defendant now appeals her

conviction and alleges three assignments of error.

DISCUSSION

In her second assignment of error, the defendant argues that the evidence was

insufficient to sustain a conviction because the state failed to prove that the accident

was caused by the defendant, and not by the dangerous position of the victim’s car

immediately prior to the impact.

The analysis for a claim of insufficient evidence is well-settled:

When the issue of sufficiency of evidence is raised on appeal, the
critical inquiry of the reviewing court is whether, after 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 proven
beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct.
2781, 61 L.Ed.2d 560, rehearing denied, 444 U.S. 890, 100 S.Ct. 195,
62 L.Ed.2d 126 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559
(La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody,
393 So.2d 1212 (La.1981). It is the role of the fact finder to weigh the
respective credibility of the witnesses, and therefore, the appellate court
should not second guess the credibility determinations of the triers of
fact beyond the sufficiency evaluations under the Jackson standard of
review. See State ex rel. Graffagnino, 436 So.2d 559 (citing State v.
Richardson, 425 So.2d 1228 (La.1983)). In order for this Court to
affirm a conviction, however, the record must reflect that the state has
satisfied its burden of proving the elements of the crime beyond a
reasonable doubt.

State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371.

The elements of the crime at issue are set forth in La.R.S. 14:32.1, which states,

in pertinent part:

A. Vehicular homicide 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:

2

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

(2) 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.

As another circuit has explained:

In State v. Taylor, 463 So.2d 1274, 1275 (La.1985), the Louisiana
Supreme Court concluded that, under the vehicular homicide statute,
“the state . . . must prove that an offender’s unlawful blood alcohol
concentration combined with his operation of a vehicle to cause the
death of a human being.” See also State v. Ritchie, 590 So.2d 1139,
1149 (La.1991) (on rehearing). It is insufficient for the state to prove
merely that the alcohol consumption “coincides” with the accident.
Taylor, 463 So.2d at 1275. The vehicular homicide statute does not
impose criminal liability based solely on the coincidental fact that the
fatal accident occurred (without fault on the part of the accused) while
the accused was operating a vehicle under the influence of alcohol.
Ritchie, 590 So.2d at 1149. See State v. Archer, 619 So.2d 1071, 1074
(La.App. 1st Cir.), writ denied, 626 So.2d 1178 (La.1993). Causation
is a question of fact which should be considered in light of the totality
of circumstances surrounding the ultimate harm and its relation to the
actor’s conduct. State v. Kalathakis, 563 So.2d 228, 231 (La.1990).

State v. Trahan, p. 11 (La.App. 1 Cir. 5/20/94), 637 So.2d 694, 701.

In her brief to this court, the defendant argues that the victim was stopped in

the “fast lane” of the highway at night and that the lights of the victim’s car were

either inoperable or were dimmed. The defendant concludes that these dangerous

conditions made the accident unavoidable. The defendant argues that these

conditions, therefore, rather than the actions or the intoxication of the defendant,

caused the death of the victim.

As stated above, the vehicular homicide statute does not impose criminal

liability based solely on the coincidental fact that the fatal accident occurred while the

accused was operating a vehicle under the influence of alcohol. See State v. Ritchie,

3

590 So.2d 1139 (La.1991) (on rehearing). Also, “[c]ausation is a question of fact

which has to be considered in the light of the totality of circumstances surrounding

the ultimate harm and its relation to the actor’s conduct.” State v. Kalathakis, 563

So.2d 228, 231 (La.1990). We find, after consideration of the totality of

circumstances, that the evidence was insufficient to meet the standard of proof

beyond a reasonable doubt that it was the defendant’s intoxication, combined with her

operation of her car, that caused the victim’s death. See State v. Taylor, 463 So.2d

1274, 1275 (La.1985).

Four of the trial witnesses saw the accident occur and testified about the

positioning and visibility of the victim’s car at the time of the accident, and each

testified that the victim’s car was precariously positioned. Butch Hammett was

driving his Ford F-150 in the right-hand lane of the highway at approximately fifty-

five to sixty miles per hour in the same direction of travel as the defendant and in

front of her car. Mr. Hammett testified as to what he saw:

Q. Were you aware of a vehicle coming up behind you?

A. Well, I was after my wife said there’s a vehicle in the left hand
lane stopped. And I looked in my rear view mirror just to see if
somebody was coming up that lane to hit her.

Q. And what did you see?

A. Well, I saw a car approaching my rear, and of course it went in the
left lane to pass me and that’s when it hit the car that was sitting.

Q. Now, was this car that was coming up behind you, had it – was it
traveling approximately the same speed that you were and pulled out to
go around or what did you observe?

A. Well, no, it had to be going a little faster than I was. Because like
I said, I saw it and then I saw it, you know, coming up on me fast
enough that it had to change lanes.

4

Mr. Hammett further testified that he did not see the victim’s car until the

moment of impact:

Q. Did you – was this vehicle’s lights on that was sitting in the left
hand lane?

A. I never saw the vehicle in the left lane.

Q. Okay, you saw it beside you?

A. Are you talking about the car that hit the car, or the car that got
hit?

Q. The car that got hit.

A. No, I never saw the car that got hit until it all was just a big
collision.

Mr. Hammett testified that the defendant was driving a Mazda, a car he described as

lower to the ground than his Ford F-150.

Dale Vestal testified that he was also driving in the same direction in which the

victim’s car was facing. Mr. Vestal described the events as follows:

A. Yes, sir. Well, I was approaching that Dodge Store area up
there, and everybody knows the lights from that thing, and I’ve always
been leery of that, I’ve seen many wrecks up there. As I approached Ms.
Ingram’s car, there was some boxes kind of obstructing in the back
glass, I couldn’t see into the front of the car, automobile. And as I
passed the car I told – made the comment to my grandson, I said, that car
is fixing to get hit real bad, right there. And I was looking at the
automobile and as I passed it Ms. Ingram was in the car, from the side
of it, cause I could see the lights from the Dodge Store was shining to
me, and I could see through that way. And all I could see is just the bulk
of the lady in the car and I told him that car is fixing to get hit and
there’s somebody in the front seat. And I veered to the right hand side
of the road, turned my flashers on, get off the road, because I was with
the intentions of going trying to get the car out of the road because I
knew somebody was fixing to get hurt real bad. And that’s – the moment
I stepped out of my truck, I turned and told my grandson, I said, you stay
in this truck. And I turned and when I turned that’s when the vehicle hit
Ms. Ingram from behind.

5

Mr. Vestal also described the lights of the victim’s car:

A. . . . The car was there. And I didn’t – you know, the thought, I didn’t
see no tail lights, when I got to her car I could see that the lights had
been on, like the battery had run down, maybe shorted out or whatever.
They were very dim. And when I got off on the shoulder – on the
shoulder of the road, to get out of my vehicle, the lights, her headlights
was awful dim on the front, like the battery was going down, maybe the
alternator shorted out or whatever, I don’t know.

John Dale Loomis, Mr. Vestal’s grandson, was riding with him in his truck at

the time of the accident. Mr. Loomis described the positioning of the victim’s car:

A. . . . When we passed Ms. Ingram’s car she was – I guess you can just
say sitting out on – I don’t really remember – she was kind of sitting
over or nothing, she was just sitting there. The lights weren’t – they
were on, but they weren’t bright or nothing. She was just sitting there,
I didn’t see no movement or nothing.

Mr. Loomis also described the defendant’s car immediately prior to the impact:

Q. Did you have time to see it coming down the lane in behind Ms.
Ingram?

A. Uh-huh. Right when she came around behind Mr. Butch, I saw her
coming straight on into Ms. Ingram’s car.

Q. Did she veer right or left?

A. No, from –

Q. Did she throw on her brakes?

A. It was kind of unavoidable, because I mean, I can’t really say how
fast she was going, I don’t really know. But if you’re in that situation
coming around behind the car, you really didn’t have no chance of
braking or anything like that. I mean, it was just like that.

Finally, witness Jarred Dooley stated that he saw the victim’s car for a brief

moment before the impact and that it “straddled the turn lane and the fast lane.” Mr.

Dooley also stated that it appeared to him that the driver of the victim’s car “may

have been kind of slumped over somewhat.”

6

In State v. Archer, 619 So.2d 1071 (La.App. 1 Cir.), writ denied, 626 So.2d

1178 (La.1993), the court reversed a conviction following a bench trial for vehicular

homicide. The court reversed upon its finding that, under the Taylor standard, the

evidence that the defendant’s intoxication combined with his operation of a vehicle

to cause the death of the victim was insufficient. In Archer, the intoxicated

defendant’s van was traveling southbound on a heavily traveled intersection at night.

Id. The defendant turned left in order to enter the parking lot of a service station

located on the northeast corner of the intersection. Id. At the scene, the defendant

told the investigating officer that at the time he made his left turn, the traffic light

controlling traffic at the intersection was showing a green arrow, allowing for traffic

to make an unimpeded left-hand turn. Id. However, upon turning left, the defendant

struck the Toyota Camry in which the victim was a guest passenger, which was

traveling north. Id. The court reversed the defendant’s conviction for the following

reasons:

After carefully reviewing the entirety of the trial testimony and
exhibits, we conclude that the state did not sufficiently establish that
defendant’s unlawful blood alcohol concentration combined with his
operation of the van to cause the victim’s death. Defendant’s statement
at the scene that he had a green left turn arrow was neither disproved nor
disputed. Although the state presented the testimony of a person who
had been in a nearby parking lot and of a driver who was stopped at the
intersection before the accident, neither bystander was able to say which
driver (defendant or Laird or both) had a green light. At the time of the
accident, defendant was turning into the service station and not onto
Perkins Road. Thus, he had an obligation to yield to oncoming traffic.
However, if the light showed a green turn arrow for defendant to turn
onto Perkins, it would be reasonable for defendant (whether sober or
intoxicated) to assume oncoming traffic would stop at the red light, thus
allowing him to turn safely into the station. We recognize that the state’s
accident reconstruction expert concluded that defendant took no evasive
action prior to the accident. The expert explained that defendant should
have turned to the right to go back into the turning lane in order to avoid
the accident. However, because defendant already was in the process of
turning to the left, his attention would have been focused on the service

7

station and not on any traffic presumably stopped at the light. According
to the expert, because it was nighttime and because of the slight incline,
defendant would only have seen the glare of the Camry’s headlights and
would not have been able to estimate the Camry’s exact location until
the Camry was within two seconds of defendant’s location. The expert
estimated that the Camry was traveling eighty feet per second. Under
these circumstances, the state’s position that defendant was at fault for
failing to yield to the oncoming vehicle is unreasonable. The hypothesis
that the Camry was speeding and ran a red light is “sufficiently
reasonable that a rational juror could not have found proof of guilt
beyond a reasonable doubt.” Jacobs, 504 So.2d [817] at 821, n. 6
[(La.1987)].

Id. at 1074-75.

In the case sub judice, as in Archer, the intoxication of the defendant is not

contested. Several additional factual circumstances in the case sub judice also

parallel the circumstances in Archer. The accident occurred at night. Although no

evidence was adduced at trial to specifically indicate such, the road was described by

the state’s brief to this court as “congested.” The defendant apparently took no

evasive action.

Just as the victim’s car in Archer was positioned so as to cause danger to

another driver, evidence in the instant case indicates that the victim’s car was also

positioned to create a dangerous condition. Mr. Vestal told his grandson that the

victim’s car was “fixing to get hit real bad.” He also stated that the victim’s car was

in such a dangerous position that he actually pulled over to the side of the road,

intending to assist in moving the car from danger. Mr. Loomis, his grandson, stated

that because of the location of the victim’s car, the accident was unavoidable and that

a person in the place of the defendant would have had no opportunity to apply the

brakes. Mr. Dooley described the victim’s car as straddling the turning lane and the

fast lane. Finally, Mr. Hammett testified that he did not see the victim’s car even after

having been warned by his wife that “there’s a vehicle in the left hand lane stopped.”

8

In Archer, the court found that the defendant’s testimony that the traffic signal

gave the right of way to a person making a left turn showed that it was reasonable for

the defendant to assume he would not encounter oncoming traffic. The court found

that assumption reasonable even though, as pointed out in the Archer dissent by

Judge Shortess, the defendant was not turning left at the intersection controlled by the

light; rather, he was turning left to enter a parking lot situated north of that

intersection. Id. In the instant case, the defendant could also have reasonably

assumed she would not encounter an automobile stopped in the lane of traffic when

she attempted to pass Hammett’s pick-up truck. Further, although no accident report,

diagram or photos showing the accident site were admitted into evidence, no

testimony indicated that the defendant was utilizing a lane of the highway that was

improper for passing.

Additionally, the expert in Archer testified that the defendant would have had

problems seeing the victim’s car due to the glare of its lights and its speed. Id. In the

instant case, evidence also suggested that the defendant would have had difficulty

seeing the victim’s car from her position behind Mr. Hammett’s truck. Mr. Hammett

observed that the defendant’s car was lower to the ground than his pick-up truck.

Further, and although the state asserts in its brief to this court that “[a]ll the witnesses

were able to clearly see [the victim’s] vehicle,” Mr. Hammett stated that he “never

saw the car that got hit until it all was just a big collision.” Additionally, Mr. Vestal

and his grandson each testified that the lights of the victim’s car were very dim.

In its brief to this court, the state also presupposes that the lack of evasive

action on the part of the defendant was due solely to her intoxication. But, the Archer

court observed that the defendant’s movement, the left turn, meant that his attention

9

was focused elsewhere, specifically, on the service station into which he was

intending to drive. Id. In the instant case, the defendant’s attention was likely

focused elsewhere, specifically, on Mr. Hammett’s pick-up truck, the vehicle she was

moving to pass. The Archer court found that under the specific facts of the case, the

conclusion that the defendant was at fault was unreasonable. Id.

Additional jurisprudence supports the defendant’s assertion that the

circumstances of the accident mean that a rational juror would not have found proof

of guilt beyond a reasonable doubt. In Bordelon v. State, Department of Highways,

253 So.2d 677 (La.App. 1 Cir.), writ ref’d, 260 La. 18, 254 So.2d 619 (1971), the

driver-defendant in a suit for civil recovery for the death of his passenger was found

to be not liable. The accident occurred at night on a highway and the defendant was

driving between sixty and sixty-five miles per hour. Id. The defendant diverted his

attention momentarily when he changed lanes. When he again looked straight ahead,

he saw a dead cow lying in his lane of travel. Id. He swerved off the road and into

a tree. Id. That court quoted Kirk v. United Gas Public Service Co., 185 La. 580,

585-86, 170 So. 1, 3 (1936), where the supreme court stated:

The rule that a motorist traveling on the public highways after
dark or during a rainstorm, fog, or other abnormal condition, which
prevents him seeing ahead, except imperfectly, and for a short time and
distance, must guard against striking objects in the road with which he
may be suddenly confronted, constitutes an exception to the general rule
that a motorist may assume that the road is safe for travel even at night.
But that exception to the general rule is itself subject to the exception
that a motorist traveling by night is not charged with the duty of
guarding against striking an unexpected or unusual obstruction, which
he had no reason to anticipate he would encounter on the highway.

Bordelon, 253 So.2d at 678-79 (emphasis added).

The first circuit applied the rule from Kirk to a case involving a rear-end

collision and stated that an unlighted vehicle, whether moving, stopped or parked

10

upon a highway, constitutes an unexpected or unusual obstruction that would not

reasonably be anticipated. Shively v. Hare, 189 So.2d 12 (La.App. 1 Cir. 1966).

In contrast to Bordelon and Shively, this court ruled in Fontenot v. Continental

Casualty Co., 175 So.2d 853 (La.App. 3 Cir. 1965), that a driver-defendant was liable

to a passenger for injuries occurring from an accident when the driver swerved to

avoid an unforeseen obstacle in the road. That driver swerved to avoid a cow

standing in his lane of travel. However, the facts of Fontentot do not suggest that the

defendant was traveling on a busy highway, nor that his attention was reasonably

diverted from his path of travel. The accident circumstances in the instant case more

closely parallel those circumstances in Archer and in Bordelon.

Accordingly, we find that the circumstances of the accident precluded the state

from proving beyond a reasonable doubt that the intoxication of the defendant

combined with her operation of the vehicle to cause Ms. Ingram’s death. Rather, the

accident was unavoidable, and, under Taylor, the defendant may not be held

criminally liable simply due to the coincidental fact that the fatal accident occurred

while she was driving a vehicle under the influence of alcohol.

Because we find merit in assignment of error number two and reverse the

defendant’s conviction, the remaining assignments of error need not be addressed.

DECREE

The defendant’s conviction is reversed and set aside. It is ordered that an

acquittal be entered on the record.

CONVICTION REVERSED AND SET ASIDE; APPELLANT ACQUITTED.

11

NUMBER 04-1571

COURT OF APPEAL, THIRD CIRCUIT

STATE OF LOUISIANA

STATE OF LOUISIANA

VERSUS

SHERRY S. BAILEY

AMY, J., dissenting.

I respectfully dissent from the reversal of the defendant’s conviction. After

review of the record, I find an affirmation required. The State presented testimony

indicating that the level of the defendant’s intoxication restricts peripheral vision,

impairs reaction time, and increases the likelihood of errors in judgment in gauging

speed and distances. An eyewitness testified that he was traveling approximately 55-

60 miles per hour and that the defendant approached his truck from the rear. The

driver explained that the defendant would have had to either slow her speed or change

lanes in order to avoid hitting him. The investigating State Trooper testified that

there were no skid marks from the defendant driver’s vehicle that would indicate an

evasive maneuver. Given this testimony, I conclude that the record supports a

determination by the jury that the defendant’s intoxication contributed to the fatal

accident and that, although the evidence as to this element was limited, it was proven

beyond a reasonable doubt. The jury members reached their determination regarding

contribution of the defendant’s intoxicated condition after hearing both the State’s

witnesses and the contrary expert testimony offered by the defendant. The jury was

free to find in favor of the evidence presented by the State.

As I find that the record supports the jury’s verdict, I conclude that the

conviction should be affirmed.