City of Columbus v. Lawrence Taylor, 87-LW-1586

• Decision Date: 07 May 1987
• Docket Number: 87-LW-1586,86AP-744
• Parties: City of Columbus, Plaintiff-Appellee, v. Lawrence Taylor, Defendant-Appellant.
• Court: Ohio Court of Appeals

City of Columbus, Plaintiff-Appellee, v. Lawrence Taylor, Defendant-Appellant.

No. 86AP-744.

87-LW-1586 (10th)

Court of Appeals of Ohio, Tenth District Franklin.

May 7, 1987

APPEAL from the Franklin County Municipal Court.

RONALD J. O'BRIEN, City Attorney, JAMES J. FAIS, City Prosecutor, DAVID E. TINGLEY and LISA SADLER, for appellee.

CAPITAL UNIVERSITY LEGAL CLINIC, MAX KRAVITZ, CATHERINE ZAMORA, JOHN GONZALES, and STEVEN NOLDER, for appellant.

OPINION

WHITESIDE Judge.

Defendant, Lawrence Taylor, appeals from a judgment of the Franklin County Municipal Court and raises seven assignments of error as follows:

"1. The trial court erred when it excluded the replicate testing of appellant by an expert witness to determine the breath alcohol content of appellant. The exclusion of the testimony violated the Fifth, Sixth and Fourteenth Amendments to the United States Constitution.

"2. The trial court erred when it permitted the prosecution to impeach appellant with the use of a statement previously excluded by the court for violating appellant's Fifth, Sixth, and Fourteenth Amendment rights under the United States Constitution, and Article I, Section 10, of the Ohio Constitution. Appellant did not testify as to the subject matter of the impeachment on direct examination.

"3. The trial court erred in overruling appellant's motion to suppress the results of the "BAC Verifier,' pursuant to Ohio Revised Code Section 2935.20 when the appellant asked to consult with an attorney by telephone before deciding whether to take the "BAC Verifier' but was denied a telephone call to contact an attorney.

"4. The trial court erred in admitting evidence of breath testing with the "BAC Verifier' performed on the defendant because the "BAC Verifier' was not properly adopted by the Department of Health as an approved testing device.

"5. Appellant was deprived of a fair trial when the prosecutor purposely timed her objections to appellant's opening statements in a manner calculated to disrupt interfere, and otherwise undermine the opening statements' proper and legitimate purposes at trial.

"6. The trial court erred when it excluded the testimony of appellant's expert witness due to the delay in furnishing the report of the witness to the prosecution.

"7. The trial court erred when it refused to instruct the jury on the issue of "unavoidable accident' after granting the prosecution's request to instruct the jury that a pedestrian in a crosswalk has the right of way.'

Defendant was charged with a violation of Columbus City Codes (C.C.), Section 2133.01(a) (O.M.V.I.^impaired driving), C.C. 2133.01(b)(2) (O.M.V.I.^"per se'/breath), and C.C. 2171.01(a) (failure to yield to pedestrian). Defendant was found guilty by jury verdict of both the O.M.V.I. charges.

Defendant was driving westbound on East Fifteenth Avenue and drove to the right of another vehicle which was stopped at the unmarked intersection of East Fifteenth Avenue and Pearl Alley, waiting to negotiate a left-hand turn into Pearl Alley. Defendant's car struck two pedestrians as they stepped out from in front of the stopped vehicle while walking northbound across East-Fifteenth Avenue. Defendant exited his vehicle and approached the injured pedestrians to offer assistance.

Police officers were on the scene immediately, having witnessed the accident from Pearl Alley. Defendant was first placed in the back of a police cruiser and subsequently requested to perform field sobriety tests and placed under arrest for O.M.V.I. Defendant was then taken to the police station where he was given a breath alcohol test (BAC Verifier) which registered .118.

Defendant, in his first and sixth assignments of error, alleges that the trial court erred in excluding as evidence an expert's replicate testing of defendant on a BAC Verifier. The issue presented is whether the trial court abused its discretion in not allowing expert testimony regarding the validity of defendant's BAC Verifier test.

The trial court excluded the testimony of defendant's expert witness for defendant's failure to provide the prosecution with a timely copy of the report of the defendant's expert witness. (Tr. 96-97.) The court also, without benefit of a hearing, ruled that it was scientifically impossible to simulate the conditions of the human body on the date in question, that the testimony would be prejudicial to the prosecution, and that the testing on the BAC Verifier possessed by the expert was not in accordance with the Department of Health regulations, primarily because the expert did not have the requisite operator's permit and did not use the calibration solution issued by the Department of Health when calibrating him machine (Tr. 344-353.)

Evid. R. 702 provides that, if scientific, technical or other specialized knowledge will assist the jury in understanding the evidence or determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify in the form of opinion or otherwise. However, an accused may not use expert testimony to attack the general reliability of the BAC Verifier when the General Assembly has provided for the admission of such tests if analyzed in accordance with methods approved by the Director of the Department of Health. State v. Vega (1984), 12 Ohio St. 3d 185. Although he may not challenge the general accuracy of a legislatively determined test procedure, an accused may challenge the accuracy of his specific test result. State v. Tanner (1984), 15 Ohio St. 3d 1, at 6; Columbus v. Sullivan (1982), 4 Ohio App. 3d 7, at 10. In Columbus v. Day (1985), 24 Ohio App. 3d 173, this court held that an accused may challenge the accuracy of his specific test result through the use of expert testimony to show that he could not have produced the test results claimed by the prosecution under those circumstances. In earlier case law, the Ohio Supreme Court, in considering the admissibility of replicate tests in general, has held in St. Paul Fire & Marine Ins. Co. v. B. & O. Rd. Co. (1935), 129 Ohio St. 401:

"Evidence of experiments performed out of court, tending to prove or disprove a contention in issue, is admissible if there is a substantial similarity between conditions existing when the experiments are made and those existing at the time of the occurrence in dispute; dissimilarities, when not so marked as to confuse and mislead the jury, go to the weight rather than the admissibility of the evidence.'

On the other hand, a determination as to the admissibility of evidence is a matter generally within the sound discretion of the trial court. See, e.g., Calderon v. Sharkey (1982), 70 Ohio St. 2d 218; Paugh & Farmer, Inc. v. Menorah Home for Jewish Aged (1984), 15 Ohio St. 3d 44.

A trial court has the discretion to allow out-of-court experiments, but this discretion may not be exercised arbitrarily and summarily based on hunches and speculation rather than evidence. At the very least, the trial court has an obligation to hear some testimony as to the validity of the experiment conducted before making a unilateral decision when, as in this case, the evidence is crucial to an adequate defense of the accused.

The trial court, in effect, by excluding this testimony, made judgments not only as to the admissibility of the evidence but as to the weight of the evidence. It is for the trier of fact, the jury in this instance, to determine the correct weight to be given to the expert's testimony, and the trial court may not usurp that function, when, based on these facts, the unadmitted evidence is critical to an adequate defense.

The defendant inadvertently, and due to a series of unavoidable events, was unable to provide the prosecution with a copy of the expert's report until the day of the trial. This omission should not have been fatal to an adequate defense, particularly where, as here, defense counsel requested the court to provide an overnight continuance for the prosecutor to "adequately' prepare her case, but instead the court opted not to adjourn until 8 p.m. The trial court recognized that defendant had not failed to provide discovery but ordered that defense counsel provide the prosecutor with a copy of the report at the earliest convenience. Defense counsel did not provide the copy the same day, but instead provided it the next morning, the case, however, having been continued until 1:15 p.m. the second day. It was upon this basis the trial court excluded the evidence. However, what scant evidence there was indicates the prosecutor was unavailable to receive a copy of the report the previous evening and made no request for it at the time it should have been furnished or later. Although some sanction might be proper, imposition of the extremely harsh sanction of exclusion of the only evidence that defendant could possibly produce in defense to the per se charge is unreasonable and an abuse of discretion. This is especially true here where there is no indication whatsoever of any prejudice to the prosecutor. The trial court eventually relented and allowed the expert to testify but not on the salient area of expertise. As stated above this was error.

The defendant's first and sixth assignments of error are well-taken.

Defendant, in his second assignment of error, alleges that the trial court erred by permitting the prosecution to impeach defendant with the use of a statement previously excluded by the court. The threshold issue is whether it was error for the trial court to allow statements previously excluded, because they were made before the Miranda warnings were given, to be introduced during cross-examination under the guise of impeachment but without giving requested limiting instructions.

Prior to trial, the trial court s...