The Palestine Herald, Palestine, Texas

February 14, 2014

State, defense attorney rest case in intoxicated manslaughter trial

By MARY RAINWATER
Palestine Herald-Press

PALESTINE —

After over a day and a half of testimony, both the state and defense rested their case Thursday afternoon in the intoxicated manslaughter trial of a 19-year-old man accused in the death of a 17-year-old Elkhart girl in 2012.

A six-man, six-woman jury began hearing evidence on Tuesday afternoon in the trial of Hayden Blaine Gray, who is accused of driving intoxicated and causing the death of Cheyenne Franklin in a one-vehicle wreck which occurred on Nov. 17, 2012.

Franklin was a back seat passenger in a pickup truck that Gray, then a senior at Elkhart High School, was driving on Anderson County Road 2102, just north of Texas 294. Three other teens were in the vehicle — a 2003 Dodge pickup — at the time of the crash, with front seat passenger Jeffrey Wilson injured and transported to a Tyler hospital.

Spending most of the time on the stand was Department of Safety Trooper Lynn Hubert, who investigated the case, administrated required field sobriety tests and interviews at the scene and obtained a blood sample from Gray.

Once he determined that Gray was driving the vehicle, Hubert testified that he conducted three field sobriety tests on the defendant, including an HGN (Horizontal Gaze Nystagmus) test, a “walk and turn” test and a “one-leg stand” test.

Each of those tests comes with certain “clues” that alert the officer to whether or not the subject is highly intoxicated.

The HGN test includes having the subject focus on a stimulus, such as a pen or the officer's finger, and follow it with their eyes. The eye is brought to the side, just enough to hide the whites of the eyes, and then observed for involuntary twitching that is only visible to the naked eyes when a subject is under the influence.

“There are six clues on the HGN test, and the 'decision point' comes with the observance of four or more of those 'clues,'” Hubert testified. “Grey showed a 'lack of smooth pursuit' (eyes did not move smoothly) on both eyes for that test.”

The “walk and turn” test requires a subject to walk a designated/imaginary line using heel-to-toe steps, while counting out loud and keeping one's hand at their sides. Clues for that test include the understanding of instructions, not starting early and keeping their balance.

There are eight clues in that test and two clues are the decision point, the trooper said.

“Grey's clues were instructional — he could not balance and he started too soon,” Hubert said.

The third test, called the “one-leg stand” test requires the subject to raise one of their feet six inches above the other while keeping their hands at their sides and counting in the one-thousandths until instructed to stop.

The “one-leg stand” has four clues, with two clues being the decision point.

“I noted that he swayed and used his arms for balance,” Hubert said.

A video taken from Hubert's patrol car from the night of the accident was shown to the jury during the trial, showing the trooper's conducting of the three tests and the results by the subject.

“I was able to make the decision that, in my opinion, he was intoxicated,” Hubert said, explaining that he then placed Gray under arrest for intoxicated manslaughter and instructed Anderson County Sheriff Sgt. Gabe Wallace to transport Gray to the jail.

“I called Angela Stemming (a phlebotomist) to take his blood,” he testified. “Wallace obtained the specimen and brought it back to me at the scene. I mailed it to Tyler for testing.”

Hubert continued his work at the scene of the crash “for at least a couple of hours,” he testified, talking to others involved in the crash, taking pictures at the scene and trying to determine the cause of the crash.

The trooper testified that it appeared the vehicle was traveling northbound on Anderson County Road 2101 on the west side of the road when it veered off the road on the east side, turned 180 degrees while crashing into several 10-12 inch trees and flipping on its top facing west.

Wheels on the rear of the vehicle were completely gone, with the driver's side of the vehicle receiving a large amount of damage, apparently from the impact of the trees.

“There were no signs of braking,” Hubert testified. “There was a glancing blow just off the east side of the road, and the vehicle started to spin and sliding north while facing south. When it got to some bigger trees, it eventually flipped over, and ended facing west on the east side of the road.”

There were no signs showing a speed limit on that road, the trooper said, which means the speed limit is 55 miles per hours at night and 60 miles per hour in the day time hours.

“With no braking involved, seeing that the vehicle started on the wrong side of the road and the results of the field sobriety tests — based on my training, in my opinion the vehicle was traveling over the speed limit,” Hubert testified.

On Thursday, Hubert testified regarding the signing of a Miranda Warning by Grey, going over it with attorneys for the jury.

“I read the report to him and asked him the questions,” the trooper said. “As per protocol, I wrote down the exact answers he gave me, then had (Gray) review and sign the report.”

In the document, Hubert wrote that Gray reported he was intoxicated and had drank “less than five beers,” vodka and MD (or Mad Dog) 20/20. He also reported that he had taken hydrocodone (a pain killer), and was under a doctor's care for a broken arm and injured shoulder.

A toxicologist with the Texas Department of Public Safety Crime Lab in Austin testified as to the results of Gray's blood tests, testifying that the test revealed that the subject had a BAC of .077, just under the legal intoxication level of .08.

The witness reported that his lab also was asked to test for hydrocodone, with Gray's blood level tested at less than half of .01 for the drug, and estimated that the medication was taken within 15 to 45 hours of the blood draw.

First Assistant District Attorney Stan Sokolowski, attorney for the state, asked about the effects of combining the two — alcohol and hydrocodone, with the witness stating that the combination would likely have an “additive” effect, possibly increasing the subject's BAC to .078.

The issue of alcohol's absorption rate also was brought up by attorneys, with the witness testifying that the average absorption rate was about .02 per hour, which would put the subject's BAC at .08 at the time of the crash.

Opening testimony Thursday were two people who were in the vehicle at the time of the crash, Wilson and another female passenger who was 16 at the time of the crash. A fifth male passenger was scheduled to testify for the state Thursday, but failed to appear.

The group of five teens had been returning to a nearby party when the crash occurred at about 3:28 a.m. that Saturday morning.

After previously testifying, Wilson returned to the stand to tell the jury about the amount of alcohol Gray, his friend, had consumed prior to the crash, testifying that Gray had drunk at least a half bottle of vodka.

“It was my birthday and I was spending the day with Hayden,” Wilson said about why he got in the car with Gray. “My car was at his house, so I had to go with him wherever he went.”

The female passenger, a friend of the victim, also testified that she saw Gray drinking prior to the crash and could not recall whether or not she saw him take any pills. She also said that Gray was driving “faster than usual” before the crash.

“We were trying to hurry and get to a party so we wouldn't get in trouble,” she testified.

Also taking the stand on Thursday was forensic pathologist Dr. Robert Lyon, who conducted the autopsy on the victim, reported the cause of death as blunt trauma causing a basilar skull fracture and concussion leading to death.

“She had fractures to the base of the skull and spine,” Lyon testified. “The basilar fracture runs across the back of the skull on the portion that protects the brain stem.

“She had large tears and scrapes of skin on the front and back of the head — I'm not sure which impact caused the fracture. And she had a lethal cerebral concussion.”

In cross-examination of state witnesses, Gray’s attorney Dan Scarbrough of Palestine, implied that mechanical failure was a possibility in the wreck, pointing out a recall on the truck model that could have caused the wheel to come off and cause the accident.

Trooper Hubert testified that was not possible as the rim of the tire would have left deep grooves in the pavement if the wheel had come off prior to, not as a result of, the crash.

Presiding over the trial is 87th District Court Judge Deborah Oakes Evans. Today's portion of the trial is expected to include a reading of the charges and the presentation of closing arguments followed by jury deliberations.

The State of Texas also was represented by assistant District Attorney Scott Holden.