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05/05/95 JESSIE FILLMORE v. STATE

May 5, 1995

JESSIE FILLMORE
v.
STATE



Appeal from Dallas Circuit Court. (CC-92-491). Jack Meigs, TRIAL JUDGE.

Rule 39(k) Motion Denied June 16, 1995. Rehearing Denied June 16, 1995. Certiorari Denied August 25, 1995. Released For Publication February 17, 1996.

Taylor, Presiding Judge. All The Judges Concur.

The opinion of the court was delivered by: Taylor

TAYLOR, PRESIDING JUDGE

The appellant, Jessie Fillmore, was convicted of homicide by vehicle, a violation of § 32-5A-192, Code of Alabama 1975. He was sentenced to five year's imprisonment; that sentence was split and he was ordered to serve two years in jail and the remainder on probation.

The state's evidence tended to show that on August 27, 1992, the appellant failed to stop his 18-wheel semitrailer at a stop sign and as a result his vehicle collided with an automobile driven by Hickman Lester Bamberg. Bamberg died 17 days after the accident as a result of the injuries he sustained in the collision.

Charlie Lee Woods testified that at about 6:00 p.m. on August 27, 1992, the appellant arrived at Miller Lumber Company in Selma to pick up a load of sawdust. Woods was employed by Miller Lumber as a front end loader operator. Woods testified that he always stayed at work until after 5:00 p.m. in order to load or unload any trucks that might arrive. Woods testified that he knew the appellant because the appellant had picked up loads of sawdust four or five times in the past. Woods loaded the appellant's semitrailer, and the appellant left to deliver the load. Woods testified that the appellant returned about one hour later for another load. Woods again loaded the appellant's truck. The appellant invited Woods to ride with him on this delivery and Woods accepted. Woods testified that they drove on Highway 14 toward County Road 80 and that he drank two cans of beer during the trip. He stated that he got the beers out of a paper sack that contained three cans of beer. Woods testified that during the trip the appellant was drinking something from a can, but that he did not notice what it was.

Woods testified that from the direction he and the appellant were traveling, the intersection of Highway 14 and County Road 80 is at the bottom of a long downhill stretch and there is a stop sign at the intersection for vehicles on Highway 14. Woods testified that when they got to the top of the hill before the downhill stretch leading to the intersection he told the appellant, "Don't forget the stop sign down there." However, Woods said that he did not see the appellant apply the brakes or downshift in order to slow the truck. Woods testified that the appellant did not stop and that he drove through the intersection at about 15 miles per hour, without stopping for the stop sign. At the same time a car had arrived at the intersection from the right. The appellant's truck collided with the car. Woods testified that the appellant's truck ran off the road to the left into the woods and the car remained in the intersection. Woods got out of the truck and walked to the intersection. He stated that he saw Bamberg in the car and that he appeared to be breathing.

About three minutes later Freddie Brady arrived at the scene of the accident. Brady testified that he lived about 200 yards from the intersection. Woods testified that he went back to the truck and got a fire extinguisher because a fire had started near Bamberg's vehicle. Woods began to put out the fire and Brady ran back to his house to telephone the state troopers. Brady testified that after making the telephone call he returned and helped Woods put out the fire. He saw Bamberg lying in the car; it appeared that his head "was busted real bad and he didn't appear to be breathing really good." About five minutes later an ambulance and a state trooper arrived.

Brady testified that Woods walked back to the truck and he heard Woods talking to somebody. He stated that this was the first time he knew that somebody else had been in the truck with Woods. Brady then saw the appellant get out of the truck and walk around to the rear of the truck. The appellant mumbled something and then walked off. Brady testified that he then heard the appellant "rattling around in the truck and going out into the woods." According to Brady, the appellant repeated this action two or three times.

The appellant then began talking with the state trooper. Brady testified that he was standing within a few feet of the appellant and that he could smell alcohol on the appellant. Brady also testified that the appellant appeared to have been drinking because he was "really wobbly and he talked like he was pretty well tight." Also, Brady stated that the appellant told him that he had drunk a couple of beers. However, Brady stated that the appellant did not appear to be drunk.

State Trooper Chris Ellis testified that he arrived at the scene at about 8:00 p.m. Ellis stated that as he began to talk to the appellant he could smell alcohol and that the appellant's eyes were bloodshot. The appellant denied that he had been drinking. Ellis then spent about 10 minutes talking with the appellant, gathering background information. The appellant then took a preliminary breath test which indicated the presence of alcohol. Ellis then placed the appellant under arrest for driving under the influence of alcohol. Ellis and Brady both testified that they found some Budweiser and Busch Light beer cans in the bushes 10 to 15 feet from the appellant's truck. Ellis found a cold, unopened can of Busch Light in a paper sack in the same area in which the other beer cans were found.

Ellis took the appellant to the Dallas County jail to administer an Intoxilyzer 5000 breath test. Ellis testified that the appellant was able to blow only a partial or "deficient" breath sample. The Intoxilyzer 5000 showed the blood alcohol content of the deficient sample to be .087%.

The appellant raises four issues ...


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