Ethridge v. State

• Decision Date: 06 July 1983
• Docket Number: No. CACR,CACR
• Citation: 654 S.W.2d 595,9 Ark.App. 111
• Parties: Evelyn ETHRIDGE, Appellant, v. STATE of Arkansas, Appellee. 82-197.
• Court: Arkansas Court of Appeals

Page 595

654 S.W.2d 595

9 Ark.App. 111

Evelyn ETHRIDGE, Appellant, v. STATE of Arkansas, Appellee.

No. CACR 82-197.

Court of Appeals of Arkansas.

July 6, 1983.

Rehearing Denied Aug. 24, 1983.

Blevins, Pierce & Stanley by Robert E. Marston, North Little Rock, for appellant.

Steve Clark, Atty. Gen. by Velda P. West, Asst. Atty. Gen., Little Rock, for appellee.

MAYFIELD, Chief Judge.

Appellant Evelyn Ethridge appeals her conviction of manslaughter and urges eight points for reversal. We find reversible error as to one and discuss the others only to the extent we think necessary in view of a new trial.

In April of 1982 a tornado had touched down near the City of Conway and the police had set up a roadblock to control traffic going in and out of the area. A vehicle driven by appellant came over the crest of a hill some 1400 feet from where a police officer was standing in appellant's lane talking to the driver of a vehicle headed toward appellant, but which had been stopped at the officer's signal. It was after dark, the lights of the other vehicle were shining toward appellant, and appellant's vehicle struck the policeman as he stepped out from behind the front door of the other vehicle and signaled the appellant to stop.

Appellant never applied her brakes before the officer was hit; her male companion was intoxicated; and her blood-alcohol test registered .15%, although a man helping the police control traffic testified that shortly after the accident he did not notice anything unusual about her behavior or demeanor.

One of the points relied upon by appellant concerns the giving of an instruction based upon the presumptions set out in Ark.Stat.Ann. § 75-1031.1 (Repl.1979). That instruction, No. 9, was as follows:

COURT'S INSTRUCTION NO. 9

You are instructed that the amount of alcohol in the defendant's blood at the time alleged as shown by chemical analysis of the defendant's blood, urine, breath or other bodily substance shall give rise to the following presumptions:

Number one, if there was at the time point 0-five percent present or less by weight of alcohol in the defendant's blood, it shall be presumed that the defendant was not under the influence of intoxicating liquor.

If there was at the time in excess of point 0-five percent but less than point one-0 percent by weight of alcohol in the defendant's blood, such fact shall give rise to--shall not give rise to any presumption that the defendant was not under the influence of intoxicating liquor, but such fact may be considered with other competent evidence in determining the guilt or innocence of the defendant.

Number three, if there was at the time point one-0 percent or more by weight of alcohol in the defendant's blood, it shall be presumed that the defendant was under the influence of intoxicating liquor.

The foregoing provisions shall not be construed as limiting the introduction of any other competent evidence bearing upon the question of whether or not the defendant was under the influence of intoxicating liquor.

This instruction was objected to by appellant on the specific grounds that it was not in the Arkansas model criminal instruction book (AMCI). Appellant offered an instruction incorporating AMCI 205 to be given in lieu of the court's instruction No. 9, but the court refused that request and gave both instructions to which appellant objected. Appellant's requested instruction was given as the court's instruction No. 10, and reads as follows:

Evidence of drinking may be considered by you along with all the other evidence in the case in determining whether Mrs. Ethridge was reckless or negligent, but that evidence alone does not impose upon you the duty of finding guilt as to manslaughter or negligent homicide.

We think the court erred. The note on use which appears in the AMCI book under 205 clearly states that instruction should be used when the evidence raises a statutory presumption other than the shoplifting presumption. And the comment which follows the note on use states: "It is improper for the judge to tell the jury that a specific fact in evidence is sufficient to support a specified inference or presumption of fact." Certainly that is what the court's instruction No. 9 did.

The state argues that Jones v. City of Forrest City, 239 Ark. 211, 388 S.W.2d 386 (1965), supports the trial court's action, but French v. State, 256 Ark. 298, 506 S.W.2d 820 (1974), cited under AMCI 205, holds otherwise. In French the court said the vice in an instruction which tells the jury that a specific fact shown by the evidence is sufficient to support a certain inference is that this amounts to a comment on the evidence which is prohibited by Art. 7, Sec. 23 of the Constitution of Arkansas. In reference to the Jones v. Forrest City case, the court said:

[W]e reject appellee's argument based upon a statement in Jones v. City of Forrest City, 239 Ark. 211, 388 S.W.2d 386 (and cases cited therein), that an instruction in the language of a statute applicable to the facts of a case is always proper. This comprehensive language applied literally would permit the legislature to override Art. 7, Sec. 23 of the Constitution, but we have held in Reno [and Stark v. State, 241 Ark. 127, 406 S.W.2d 372] decided subsequently to Jones, that this cannot be. 256 Ark. at 300, 506 S.W.2d 820.

Since this case must be reversed and remanded for a new trial because of the error above discussed, we also discuss the appellant's contention that it was improper to allow the state's expert to give his opinion on an ultimate fact in issue.

The state called Steve Jackson of the state police who testified as an expert in accident investigation and reconstruction. He said he had been asked to do a reconstruction in this case and he read six questions which he had been asked to answer. After explaining how he arrived at his answers, he read the questions again and gave his answers.

The first question asked what minimum speed the vehicle was traveling at impact, and the trooper's answer was 42 miles per hour.

The second question asked what visibility was possible at the time of the accident, and the officer's answer was 1420 feet.

The third question asked what was the maximum visibility under the circumstances, and the answer was 1420 feet.

The fourth question asked if the driver of the striking vehicle should have been able to see the pedestrian's position, and the expert's answer was "only at the point where the flashlight is used."

The fifth question asked if the driver of the striking vehicle had time to take evasive action if traveling at the speed limit, and the answer was yes.

And the last question was, "had driver been alert and practicing reasonable safety, could this death have been prevented?" The state trooper's answer was, "In my opinion it could have."

Now the question for the jury to decide in this case was whether the appellant recklessly caused the death of the policeman, and the law provides that one acts recklessly when there is a gross deviation from the standard of care that a reasonable person would observe in the same situation. Ark.Stat.Ann. §§ 41-1504 and 41-203 (Repl.1977). We think this is essentially the same question the state trooper answered. When he said the policeman's death could have been avoided if the appellant had been alert and practicing reasonable safety, he answered the question the jury had to answer--did appellant cause the policeman's death by a gross deviation from the standard of care that a reasonable person would observe in the same situation.

The state asserts, however, that our Uniform Evidence Rule 704 allows an expert to give an opinion on an ultimate fact issue. However, that is not really what the rule provides. The rule states that testimony in the form of an opinion otherwise admissible is not objectionable because it embraces an ultimate issue. Our rule 704 is the same as the federal evidence rule 704. The advisory committee's note to that rule states, in part, "The abolition of the ultimate issue rule does not lower the bars so as to admit all opinions .... opinions must be helpful to the trier of fact...." 28 U.S.C.A. Rule 704 (West 1975).

An 8th Circuit case, United States v. Scavo, 593 F.2d 837 (8th Cir.1979), states:

Rule 704 does not, of course, render all expert testimony admissible. Expert testimony must still meet the criterion of helpfulness expressed in Rule 702 and is also subject to exclusion under Rule 403 if its probative value is substantially outweighed by the risks of unfair prejudice, confusion or waste of time.

Here are some cases which have held that an opinion involving an ultimate issue was not admissible even though rule 704 or its equivalent was in effect.

Marx & Co., Inc. v. Diners' Club, Inc., 550 F.2d 505 (2nd...