SAMMY W. DORTCH, JR. APPELLANT
STATE OF ARKANSAS APPELLEE
FROM THE INDEPENDENCE COUNTY CIRCUIT COURT [NO. 32CR-16-13]
HONORABLE JOHN DAN KEMP, JUDGE
B. Lowrey; and Larry Dean Kissee, for appellant.
Rutledge, Att'y Gen., by: Vada Berger, Ass't
Att'y Gen., for appellee.
R. BAKER, Associate Justice
Independence County jury found appellant Sammy W. Dortch,
Jr., guilty of negligent homicide, driving while intoxicated,
and reckless driving. Dortch was sentenced to a total of
fifteen years' imprisonment, an $8, 000 fine, and
suspension of his driver's license for 120 days. On
October 23, 2017, the Arkansas Court of Appeals certified the
appeal to this court pursuant Arkansas Supreme Court Rule
1-2(b)(1), (3), (4), (5), and (6) because this appeal
involves (1) issues of first impression; (2) issues involving
federal constitutional interpretation; (3) issues of
substantial public interest; (4) significant issues needing
clarification or development of the law, or overruling
precedent; and (5) substantial questions of law concerning
the validity, construction, or interpretation of an act of
the General Assembly. On November 9, 2017, we accepted
certification of this appeal. We reverse and remand.
convictions stem from the following facts. On September 16,
2015, Dortch and his friend Matthew Anderson went to U.S.
Pizza in Batesville for lunch. Tara Hall waited on Dortch and
Anderson and testified that Dortch was served two beers-a
Shiner Bock in a regular size mug and a Lagunitas IPA
"Big Earl, " which is approximately twice the size
of a regular mug. Dortch testified that the "Big
Earl" was purchased for Anderson. Ms. Hall did not see
either Dortch or Anderson drink the beers. After leaving U.S.
Pizza, Dortch and Anderson went to Beef O' Brady's.
The receipt from Beef O' Brady's showed that Dortch
purchased three beers. However, Dortch testified that he only
drank two of the beers while Anderson drank one. After
leaving Beef O' Brady's, Dortch and Anderson went to
Stanley Wood Chevrolet and checked out a 2011 black Chevrolet
Camaro to test drive. The pair headed to Vista Point Drive
where Dortch lost control of the vehicle and the vehicle
flipped upside down. In response to dispatch, Deputy Aaron
Moody with the Independence County Sheriff's Office was
the first to arrive on the scene of the crash. Deputy Moody
testified that the vehicle was upside down, and Dortch was
standing outside the vehicle. Dortch told Deputy Moody that
Anderson was still inside the car and unconscious. Deputy
Moody testified that Anderson was still in the passenger seat
of the vehicle, upside down with his seatbelt on. Deputy
Moody was unable to detect Anderson's brachial pulse, so
he left Anderson until first responders arrived. Deputy Moody
noticed that Dortch had bloodshot, watery eyes and smelled of
intoxicants. Anderson was pronounced dead at the scene by the
county coroner. Dortch admitted that he and Anderson had
consumed beers together. Deputy Moody concluded that a blood
draw was necessary because the accident resulted in a
fatality and that Dortch was suspected of driving while
intoxicated. Deputy Moody transported Dortch to the emergency
room at the White River Medical Center for a blood draw.
There, Deputy Moody went over a standard form outlining
Arkansas's implied-consent law. The form stated that if
he refused to take the test, "none will be given, but
you will subject yourself to the penalties provided by law,
which includes, but is not limited to, the suspension or
revocation of your driving privileges." Dortch signed
and initialed the form and a blood draw was performed by a
registered nurse. At no point was a warrant obtained for the
blood draw. Based on the results of the blood draw, the state
crime lab calculated Dortch's blood alcohol level at
January 8, 2016, Dortch was charged by felony information
with negligent homicide. On February 2, 2016, Dortch was
charged by an amended felony information with the additional
charges of driving while intoxicated and reckless driving. On
September 6, 2016, Dortch filed his motion to suppress
chemical evidence from his blood draw and a motion to declare
unconstitutional the implied-consent statute, Arkansas Code
Annotated section 5-65-202(a)(2), and the
mandatory-chemical-testing statute, Arkansas Code Annotated
section 5-65-208, which requires chemical testing if an
accident results in a fatality. Dortch argued that these
statutory provisions violated the Fourth Amendment pursuant
to a then recent United States Supreme Court decision,
Birchfield v. North Dakota, 136 S.Ct. 2160 (2016).
The circuit court denied Dortch's motion to suppress his
blood draw, finding that Dortch impliedly consented to the
warrantless blood draw. Further, the circuit court found that
Dortch consented to the blood draw and that the consent was
voluntary. The circuit court denied Dortch's motion to
declare Arkansas Code Annotated sections 5-65-202(a)(2) and
noted above, a jury trial was held and Dortch was convicted
of negligent homicide, driving while intoxicated, and
reckless driving. On October 28, 2016, Dortch timely filed
his notice of appeal. On appeal, Dortch argues that (1) the
prosecution presented insufficient evidence of his guilt of
negligent homicide; (2) Arkansas Code Annotated sections
5-65-202(a)(2) and 5-65-208 are unconstitutional and
therefore his blood draw pursuant to these statutes was
required to be suppressed; (3) because Anderson's cause
of death was not patently apparent, the circuit court erred
in permitting the coroner to testify as to Anderson's
cause of death; (4) the failure of the coroner to obtain an
autopsy and preserve evidence of the cause of Anderson's
death affirmatively prejudiced Dortch's ability to
present a defense in this case; (5) the circuit court erred
in not permitting rebuttal testimony to correct the
State's repeated mischaracterization of the evidence
relating to Dortch's alcohol consumption, and in not
addressing the prosecution's misstatements of fact; and
(6) the list of errors asserted here are such that reversal
should be granted because of their cumulative effect.
Sufficiency of the Evidence
appeal, Dortch argues that there was insufficient evidence of
his guilt of negligent homicide because the State failed to
prove that he caused Anderson's death as required by
Arkansas Code Annotated section 5-10-105(a)(1) (Repl. 2013).
Although Dortch raised this issue as his last point on
appeal, double-jeopardy considerations require this court to
consider a challenge to the sufficiency of the evidence prior
to the other issues on appeal. Jones v. State, 349
Ark. 331, 78 S.W.3d 104 (2002). In reviewing a challenge to
the sufficiency of the evidence, we view the evidence in the
light most favorable to the State and consider only the
evidence that supports the verdict. Edmond v. State,
351 Ark. 495, 95 S.W.3d 789 (2003). We will affirm a
conviction if substantial evidence exists to support it.
Id. Substantial evidence is that which is of
sufficient force and character that it will, with reasonable
certainty, compel a conclusion one way or the other, without
resorting to speculation or conjecture. Id.
regard to sufficiency-of-the-evidence challenges, Arkansas
Rule of Criminal Procedure 33.1 provides, in pertinent part:
(a) In a jury trial, if a motion for directed verdict is to
be made, it shall be made at the close of all of the evidence
offered by the prosecution and at the close of all of the
evidence. A motion for directed verdict shall state the
specific grounds therefor.
. . . .
(c) The failure of a defendant to challenge the sufficiency
of the evidence at the times and in the manner required in
subsection[ ] (a) . . . will constitute a waiver of any
question pertaining to the sufficiency of the evidence to
support the verdict or judgment. A motion for directed
verdict or for dismissal based on insufficiency of the
evidence must specify the respect in which the evidence is
deficient. A motion merely stating that the evidence is
insufficient does not preserve for appeal issues relating to
a specific deficiency such as insufficient proof on the
elements of the offense.
Ark. R. Crim. P. 33.1. Rule 33.1 is to be strictly construed.
Carey v. State, 365 Ark. 379, 230 S.W.3d 553 (2006)
(citing Pinell v. State, 364 Ark. 353, 219 S.W.3d
168 (2005)). Accordingly, in order to preserve a challenge to
the sufficiency of the evidence, an appellant must make a
specific motion for a directed verdict, both at the close of
the State's case and at the end of all the evidence, that
advises the circuit court of the exact element of the crime
that the State has failed to prove. Id. (citing
Grady v. State, 350 Ark. 160, 85 S.W.3d 531 (2002)).
The reason underlying the requirement that specific grounds
be stated and that the absent proof be pinpointed is that it
allows the circuit court the option of either granting the
motion or, if justice requires, of allowing the State to
reopen its case and supply the missing proof. Id.
(citing Webb v. State, 327 Ark. 51, 938 S.W.2d 806
(1997)). A general motion that merely asserts that the State
has failed to prove its case is inadequate to preserve the
issue for appeal. Id. (citing Beavers v.
State, 345 Ark. 291, 46 S.W.3d 532 (2001)).
Dortch's challenge to the sufficiency of the evidence is
not preserved for our review. At trial, Dortch's counsel
made a generic directed-verdict motion and renewed motion,
which the circuit court denied:
Defense Counsel: Judge, two things. At this time the State
has rested and we'll move for a directed verdict of not
guilty. And I realize that the Court has ruled on these
previously but since all of the evidence is in, we'd
again allege that the chain of custody was improper in this
matter for the blood samples. And also, as far as the State
Crime Lab test to come in, there were so many irregular
procedures and defects with that test to where it's
not---should not be given any weight. That's the scope of
. . . .
Court: The Court's ruling would be the same as previously
made on the chain of custody issue and the---the blood test.
As you mentioned, it goes to the weight and the weight is
determined by the jury.
The Court finds that there is sufficient evidence that's
been presented by the State to withstand a motion for
directed verdict on all three counts. And it'll just be
up to the jury to determine the credibility of the witnesses
and the weight to be given the evidence. So, the motions for
directed verdict will be denied.
. . . .
Defense Counsel: I'd just renew my motions for a directed
verdict at the close of all of the evidence, Judge. Same---
Prosecutor: Same response.
Defense Counsel: ---same grounds.
Prosecutor: Same response.
Court: The motion will be denied based on the Court's
appeal, Dortch admits that his directed-verdict motion was
general in nature. However, Dortch contends that his
insufficiency argument was preserved for appellate review
because the State expressly raised the elements of the
offense and the circuit court ruled. We disagree. In order to
preserve a challenge to the sufficiency of the evidence, Rule
33.1(c) clearly places the burden on the defendant to state
the specific grounds. While Dortch made a motion for directed
verdict at the close of the State's case and renewed his
motion at the close of the evidence, his motion did not
comply with the dictates of Rule 33.1. Dortch's motion
was general in nature and lacked the requisite specificity
required by Rule 33.1. Stated differently, because
Dortch's motion was general and not specific, his motion
was inadequate to preserve for appellate review the specific
challenges to the sufficiency of the evidence he now raises
on appeal. Accordingly, we affirm on this point.
Motion to Suppress and Motion to Declare Ark. Code Ann.
§§ 5-65-202(a)(2) & 5-65-208
second point on appeal, Dortch argues that, under Arkansas
Code Annotated section 5-65-208, warrantless searches
requiring drivers involved in an accident to submit to
blood-alcohol testing violate the Fourth Amendment's
prohibition on unreasonable searches. In response, the State
argues that we should not address any argument pertaining to
section 5-65-208. The State contends that although the
circuit court denied Dortch's motion to declare this
provision unconstitutional, the circuit court did not
actually analyze or rule on the constitutionality of section
5-65-208 because it concluded that Dortch had impliedly and
actually consented to the blood draw. We agree. Here, the
circuit court's September 27, 2016 written order merely
denied Dortch's motion to declare Arkansas Code Annotated
sections 5-65-202(a)(2) and 5-65-208 unconstitutional. The
circuit court's ruling authorizing the admission of
evidence obtained from Dortch's blood draw did not
require the circuit court to apply or consider section
5-65-208. The circuit court's order specifically found:
1. That the Defendant is charged with Negligent Homicide, a
Class B felony, DWI, and Reckless Driving. That on September
16, 2016, the Defendant was involved in a one-vehicle
accident that resulted in the death of the passenger of the
vehicle. That the Defendant was taken to the White River
Medical Center in Batesville, Arkansas by Deputy Aaron Moody
of the Independence County Sheriff's Department. That the
Defendant was advised of the implied consent law and the
consequences of refusal to take a chemical test as contained
in the Arkansas Statement of Rights Form.
2. That the recent case of Birchfield v. North
Dakota, 136 S.Ct. 2160 (2016) found constitutional the
general concept of implied consent laws that impose civil
penalties and evidentiary consequences on motorists who
refuse to comply. Furthermore, the Birchfield Court
stated, "[i]t is well established that a search is
reasonable when the subject consents, e.g.,
Schneckloth v. Bustamonte, . . . and that sometimes
consent to a search need not be express but may fairly be
inferred from context, " 136 S.Ct. at 2185 [internal
citations omitted]. Birchfield was explicit in
holding that the warrantless taking of a blood sample
pursuant to implied consent- where those implied consent laws
impose civil penalties and evidentiary consequences on
motorists who refused to comply-was not constitutionally
questionable. 135 S.Ct. at 2185. On the other hand, should a
state, "not only insist upon an intrusive blood test,
but also . . . impose criminal penalties on the refusal to
submit to such test, " the Court held that such violated
the Fourth Amendment to the United States Constitution.
. . . .
4. That in Arkansas, refusal to submit is a violation, which
subjected Arkansas motorists to a civil administrative
penalty of suspension or revocation of driving privileges.
Thus, the blood draw from the Defendant did not implicate the
5. That the Defendant was apprised of the implied consent law
and the consequences of refusal to submit to a chemical test.
He voluntarily signed the form indicating that he would take
the test. No coercion or deceit has been alleged by the
Defendant or proven. The United States Supreme Court has made
clear that Fourth Amendment consent need only be voluntary,
not knowing and intelligent. Schneckloth v.
Bustamonte, 412 U.S. 218, 241 (1973). Knowing and
intelligent waiver of rights is primarily applied to
constitutional rights necessary to preserve a fair trial.
Id. at 237.
6. That Defendant gave his consent to the blood draw. The
consent was voluntary. Consent is a valid exception to the
7. That any evidence obtained from the blood draw of the
Defendant and subsequent test results are admissible and do
not violate the U.S. ...