Greenway v. Com., 961996

• Decision Date: 06 June 1997
• Docket Number: No. 961996,961996
• Citation: 487 S.E.2d 224,254 Va. 147
• Parties: Jackie G. GREENWAY, Jr. v. COMMONWEALTH of Virginia. Record
• Court: Virginia Supreme Court

Page 224

487 S.E.2d 224

254 Va. 147

Jackie G. GREENWAY, Jr. v. COMMONWEALTH of Virginia.

Record No. 961996.

Supreme Court of Virginia.

June 6, 1997.

Timothy B. Hyland (Rodney G. Leffler; Leffler, Hyland & Thompson, on briefs), Fairfax, for appellant.

Richard B. Smith, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.

Present: All the Justices.

KOONTZ, Justice.

In a bench trial, Jackie G. Greenway, Jr. was convicted in the Circuit Court of Prince George County on two counts of involuntary manslaughter arising out of a fatal motor vehicle accident. On appeal, Greenway asserts that the trial court erred in admitting the opinion testimony of a 12-year-old witness concerning the speed of Greenway's vehicle immediately prior to the accident. Greenway further asserts that the evidence was not sufficient to sustain a finding of criminal negligence necessary to support his convictions for involuntary manslaughter.

Background

Because the Commonwealth prevailed in the trial court, we will view the evidence and all reasonable inferences drawn therefrom in the light most favorable to the Commonwealth. Parks v. Commonwealth, 221 Va. 492, 498, 270 S.E.2d 755, 759 (1980), cert. denied, 450 U.S. 1029, 101 S.Ct. 1738, 68 L.Ed.2d 224 (1981).

At approximately 11:00 a.m. on May 29, 1994, the Sunday of Memorial Day weekend, Greenway drove a blue Ford Bronco south in Prince George County on Interstate 95 in heavy traffic. At trial, Thomas Hawick testified that he observed Greenway "coming up behind me real fast" in the left southbound lane of the Interstate. Hawick, who was driving his vehicle at the 65 mile per hour speed limit, estimated the Bronco's speed at "eighty, ninety miles an hour ... [m]aybe faster." Hawick believed that Greenway's vehicle would strike the rear of his vehicle and so he "mashed on the gas."

According to Hawick, Greenway then pulled into the right lane of the Interstate, passed Hawick's vehicle, and "plowed into the vehicle in the right lane." This vehicle, a maroon Bronco, "flipped twice, and then it just shot right into the woods." Kimberly Dawn Wray, the driver of the maroon Bronco, died at the scene of the accident; Angela Nicole Yerovsek, a passenger in the maroon Bronco, died at the Medical College of Virginia Hospital emergency room where she was transported for treatment of her injuries. Hawick further testified that following the collision Greenway then "weaved to the left, in the left lane, and he went on the shoulder a little bit, then he got back in the right lane, and then he was going real fast."

Rhonda Thacker testified that on the morning of the accident she was stopped for a red light on the Route 301 overpass of Interstate 95. Justin Thacker, her 12-year-old son, called her attention to Greenway's vehicle, saying that it was going to hit the maroon Bronco. Rhonda Thacker estimated Greenway's speed at "a minimum of eighty-five" miles per hour. She further testified that Greenway's vehicle "was like in the middle ... not in one lane or the other, it was more like in the middle of the white [line] that divides the two [lanes]."

Justin Thacker testified that he observed Greenway's vehicle as it crossed under the overpass "going pretty fast." The Commonwealth's Attorney then asked Justin if he had "been in cars all [his] life as a passenger." Justin stated that he had. The Commonwealth's Attorney then asked Justin if he knew "how fast or do you have an opinion of how fast [Greenway's] vehicle was going?" Justin gave a contradictory answer, stating, "No, sir, I don't. He was going, say, ninety."

Greenway's counsel then objected, asserting that Justin was incompetent to testify as to the speed of the vehicle. Greenway's counsel argued that "a 12-year-old boy, who is not even eligible and won't be for four more years to even have a driver's license, [could not] estimate speed." The Commonwealth responded that such evidence was "totally admissible. The weight it would be given is for the Court to determine." The trial court ruled that Greenway could "challenge it on cross" and permitted the Commonwealth to continue its examination.

In response to a question from the Commonwealth, Justin confirmed his estimate of Greenway's speed at ninety miles per hour. He further testified that Greenway's vehicle was "swerving ... before it got up close to the [maroon] Bronco it would ... try to get in that lane then come back, then go and then come back, and then it just hit it." On cross-examination, Greenway's counsel asked Justin to describe in detail the swerving motion of Greenway's vehicle, but did not further question Justin on the issue of speed or the basis for his estimate of the speed of Greenway's vehicle.

Additional evidence showed that approximately half a mile from the accident scene, Greenway's vehicle left the Interstate, crossed a gully and service road, entered the front yard of a private residence, and struck a tree. When interviewed at the scene, Greenway told police investigating the accident that he believed he had hit Hawick's vehicle which "got squirrly," and when Greenway tried to stop "he must have hit the accelerator" instead. Although stating that he was tired and had been awake since 3:30 a.m., Greenway did not assert at that time that he had fallen asleep while driving. However, when subsequently interviewed by a State Police trooper at Southside Regional Hospital, Greenway asserted that he had struck Hawick's vehicle after falling asleep while driving.

At the conclusion of the Commonwealth's evidence, Greenway made a motion to strike, asserting that the evidence was consistent with the assertion that Greenway had fallen asleep while driving. The trial court ruled that "on a prima facie standard" the evidence showed that Greenway was able to control his vehicle to avoid a collision with Hawick's vehicle. Based upon that evidence, the trial court rejected the theory that Greenway had fallen asleep.

Greenway called only one witness, Robert D. Maclin, who testified that he saw Greenway's vehicle go "out to pass" and strike the maroon Bronco. Although he could not give an opinion of the speed of Greenway's vehicle, Maclin stated that he was travelling fifty-five to sixty miles per hour and did not remember being passed by Greenway or any other vehicle.

The trial court overruled Greenway's renewed motion to strike, holding that Maclin's testimony failed to "shed any light" on the question whether Greenway had fallen asleep. Reviewing the evidence of Greenway's excessive speed, erratic driving, his ability to avoid hitting Hawick's vehicle, and his flight from the accident scene, the trial court convicted Greenway of two counts of involuntary manslaughter. After receipt of a pre-sentence report, the trial court sentenced Greenway to consecutive seven-year prison terms for the convictions.

Greenway appealed his convictions to the Court of Appeals, challenging, inter alia, the trial court's admission of Justin's testimony concerning Greenway's speed and the sufficiency of the evidence to support the finding that Greenway's conduct amounted to criminal negligence. In an unpublished order, the Court of Appeals refused Greenway's petition for appeal, holding that Justin's testimony was properly admitted under Moore v. Lewis, 201 Va. 522, 525, 111 S.E.2d 788, 790 (1960). The Court further held that the evidence taken in the light most favorable to the Commonwealth was adequate to sustain the trial court's finding of criminal negligence. King v. Commonwealth, 217 Va. 601, 607, 231 S.E.2d 312, 316 (1977). We awarded Greenway this appeal.

Competency of Child Witness to Testify Concerning Speed

Our decisions follow the mainstream of authority which holds that expert knowledge is not required for a witness to be considered qualified to make an estimate of speed. As we said in Moore:

"An estimate of the speed at which an automobile was moving at a given time is generally viewed as a matter of common observation rather than expert opinion, and it is accordingly well settled that any person of ordinary experience, ability, and intelligence having the means or opportunity of observation, whether an expert or nonexpert, and without proof of further qualification may express an opinion as to how fast an automobile which came under his observation was going at a particular time. The fact that the witness had not owned or operated an automobile does not preclude him from so testifying. Speed of an automobile is not a matter of exclusive knowledge or skill, but anyone with a knowledge of time and distance is a competent witness to give an estimate; the opportunity and extent of observation goes to the weight of the testimony."

Moore, 201 Va. at 525, ...