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State v. Nunn

March 25, 1997

STATE OF WASHINGTON, RESPONDENT,
v.
JOHN OLIVER NUNN, APPELLANT.



Appeal from Superior Court of Klickitat County. Docket No: 93-1-00073-3. Date filed: 05/23/94. Judge signing: Hon. Ted Kolbaba.

Authored by Dennis J. Sweeney. Concurring: John A. Schultheis, Stephen M. Brown.

The opinion of the court was delivered by: Sweeney

SWEENEY, C.J. To established ineffective assistance of counsel, a criminal defendant must show that his lawyer's representation fell below an objective standard of reasonableness and that he was prejudiced. State v. Rosborough, 62 Wash. App. 341, 348, 814 P.2d 679, review denied, 118 Wash. 2d 1003, 822 P.2d 287 (1991). John Oliver Nunn was convicted of vehicular homicide. He contends his lawyer was ineffective. Specifically, he asserts counsel (1) failed to move to suppress the results of a blood alcohol test based on a sample obtained in Oregon after he was airlifted there for medical treatment; (2) failed to object to the admission of a blood alcohol test even though the state toxicologist who performed the test did not testify; and (3) failed to object to the admission of an unsworn statement of an unavailable witness. We conclude that Mr. Nunn was effectively represented and affirm.

FACTS

At about four o'clock on the afternoon of January 15, 1993, Dennis M. Reeves was driving a tractor on State Route 141. He saw a Jeep approaching in his lane of traffic. Mr. Reeves turned the tractor onto the shoulder of the road. As he turned, the Jeep hit the left rear wheel of the tractor, spun sideways and proceeded to roll down an embankment. Mr. Nunn and a passenger, Larry Heath, were thrown from the Jeep. Mr. Heath died at the scene. A second passenger, Larry Teel, climbed out of the back seat and told Mr. Nunn: "I told you [[you__ were driving too fast. I told you to slow down." Mr. Teel told Mr. Reeves and the ambulance workers that Mr. Nunn was driving.

Washington State Patrol Trooper Neil Hoffberger went to the scene of the accident at approximately 4:29 p.m. He smelled intoxicants on Mr. Nunn's breath. Mr. Teel told Trooper Hoffberger that Mr. Nunn was driving the Jeep. Beer cans were scattered around the accident scene. Trooper Hoffberger believed probable cause existed to arrest Mr. Nunn for vehicular homicide. Mr. Nunn was taken to Skyline Hospital in White Salmon.

Trooper Dale Retzlaff went to the hospital to arrest Mr. Nunn. At the hospital, Trooper Retzlaff talked to Mr. Nunn in the hallway as he was being prepared for a helicopter flight to Portland, Oregon, for medical treatment. The trooper advised Mr. Nunn of his constitutional rights. Mr. Nunn indicated he did not understand. The trooper repeated the warnings.

He also read Mr. Nunn the special evidence warnings. *fn1 Trooper Retzlaff arrested Mr. Nunn for vehicular homicide. Hospital employees took a blood sample. Because of Mr. Nunn's low blood pressure, they took only a small sample.

Mr. Nunn was airlifted to Portland. Washington State Trooper Roy Rhine met Mr. Nunn at the hospital. He detected the odor of intoxicants on Mr. Nunn's breath. He again advised Mr. Nunn of his constitutional rights and again gave Mr. Nunn the special evidence warnings. Mr. Nunn did not respond. Trooper Rhine arrested Mr. Nunn. Hospital employees took a second blood sample which was sent to a state laboratory in Washington.

Mr. Nunn was charged with one count of vehicular assault and one count of vehicular homicide. At trial, Patrick Friel, a forensic toxicologist at the Washington State Toxicology Lab, testified that he tested the blood sample taken from Mr. Nunn in Washington. He found that Mr. Nunn's blood alcohol level was .22 grams of alcohol per 100 milliliters of blood.

Without objection, Mr. Friel testified that the laboratory supervisor, Dave Predmore, tested the sample obtained from Mr. Nunn in Oregon. Mr. Predmore determined that Mr. Nunn's blood alcohol content was .22 grams of alcohol per 100 milliliters of blood. Mr. Friel also testified that Mr. Predmore tested a urine sample taken from Mr. Teel following the accident. Mr. Teel's blood alcohol content was .13 grams per 100 milliliters.

Detective Steven Stockwell testified that after investigating the accident, it was his Conclusion that Mr. Nunn was driving the Jeep.

Defense counsel asked the reason for his Conclusion. As part of his answer, Detective Stockwell read a statement by Dick Kelley, a landowner, who had asked the three men not to fish on his property shortly before the accident. *fn2 Mr. Kelley suggested that Mr. Nunn was driving the Jeep. ...


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