Summary 2010 WY 162

Summary of Decision December 10, 2010

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Case Name: Tucker v. State

Citation: 2010 WY 162

Docket Number: S-10-0006

URL: http://tinyurl.com/24deumm

Appeal from the District Court of Fremont County, The Honorable Marvin L. Tyler, Judge

Representing Appellant (Defendant): Diane E. Courselle, Director, UW Defender Aid Program; Kevin Ward, Student Intern. Argument by Mr. Ward.

Representing Appellee (Plaintiff): Bruce A. Salzburg, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Leda M. Pojman, Assistant Attorney General. Argument by Ms. Pojman.

Date of Decision: December 10, 2010

Facts: Appellant challenged his convictions on two counts of aggravated vehicular homicide.

A bartender stopped serving Appellant alcohol due to his level of intoxication. Approximately an hour later, Appellant asked the bartender for help starting his truck. The bartender then asked another patron, a mechanic, to help Appellant with his vehicle. The mechanic determined that the truck would not start because the clutch had not been pressed. During this time, Appellant was in the driver’s seat attempting to start the truck, the girlfriend was in the passenger seat with her head against the passenger door, and the girlfriend’s son was asleep in the backseat. After it was determined that the truck did not need a jump, Appellant got out of the truck momentarily while the mechanic got into the driver’s seat, pushed in the clutch, and started the truck. Appellant got back into the driver’s seat and the mechanic saw Appellant drive away. Approximately seven miles from town, the truck left the road, flipped over, and crashed into a tree. The girlfriend and her son were ejected from the vehicle and were found dead at the scene of the accident.

Prior to trial, the State filed a witness list designating the investigating officer as a witness. Appellant filed a motion which sought to prevent the investigating officer from testifying as an expert. The court granted the motion “in part” but also indicated that the officer could testify “in accordance with his designation.” Before the officer took the stand, another hearing was held concerning the anticipated testimony. The court stated that it would limit the officer’s testimony to the matters described in the witness designation and that it would give a curative instruction to the jury in the event that the officer’s testimony crossed into the realm of expert opinion. During the State’s examination of the officer, the prosecution asked him to describe his training in accident investigations and his experience in investigations involving ejections. The State also asked the officer to give his opinion as to where the victims were seated prior to being ejected from the vehicle. Finally, the officer was asked whether he thought the accident was influenced by alcohol impairment.

Defense counsel repeatedly objected to the State’s questions regarding the officer’s training and experience, and to the officer’s testimony regarding the position of the occupants of the vehicle, on the grounds that he was stating opinions that only an expert witness could provide. In response, the court instructed the jury several times that the investigating officer could not provide expert opinions and as to how much weight, if any, should be given to opinion testimony from a witness who is not an expert witness

Ultimately, the jury found Appellant guilty on both counts of aggravated vehicular homicide. Appellant was subsequently sentenced to 12 to 20 years for each conviction, with the sentences to be served consecutively.

Issues: I – Whether the district court abused its discretion when it admitted the portion of a trooper’s testimony challenged in the motion for new trial. II – Whether there was sufficient evidence of Appellant’s guilt. III -- Whether Appellant’s consecutive sentences were illegal.

Holdings: The Court held that the district court erred in admitting the investigating officer’s opinion as to the location of the occupants of the vehicle at the time of the crash and as to whether alcohol impairment was a factor in the crash. However, in light of the remaining evidence produced by the State, the Court held these errors were harmless. The evidence was sufficient to establish that Appellant was driving the vehicle and that his intoxication was the proximate cause of the crash and the resulting deaths of the victims. Finally, the Court held that Appellant’s constitutional rights against double jeopardy and against cruel and unusual punishment were not violated by the imposition of consecutive sentences of 12 to 20 years. For these reasons, the decision of the district court was affirmed.

J. Burke delivered the opinion for the court.

A special concurrence was delivered by J. Voigt.

Specifically, to address why the State did not offer the trooper/investigating officer as an expert witness under W.R.E. 702 and offer some form of Wyoming Criminal Pattern Jury Instruction No. 6.08A (2004), which instruction tells the jury how to consider the opinion of an expert witness.

The concurrence concludes that an expert in the field of accident investigation or reconstruction, particularly one who investigated the scene immediately after the accident and who interviewed the pre-accident witnesses, may opine as to the position of the occupants in the vehicle, assuming that he or she is able to testify as to a sufficient basis for that opinion.