Hanks v. State, 1 Div. 549

• Decision Date: 27 January 1989
• Docket Number: 1 Div. 549
• Parties: James Leonard HANKS v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 536

562 So.2d 536

James Leonard HANKS v. STATE.

1 Div. 549.

Court of Criminal Appeals of Alabama.

Jan. 27, 1989.

Rehearing Denied April 28, 1989.

James H. Lackey, Mobile, for appellant.

Don Siegelman, Atty. Gen., and Beth Slate Poe, Asst. Atty. Gen., for appellee.

McMILLAN, Judge.

The appellant was indicted for manslaughter, in violation of § 13A-6-3, Code of Alabama 1975. He was found guilty of vehicular homicide and was sentenced to five years in the State penitentiary. His sentence was split and he was ordered to serve 90 days in a "jail-like facility" and was then to be placed on formal probation. His probation was conditioned on staying out of trouble and completing a 13-month course at the Outreach Program. He was further ordered to pay $1000 under the Crime Victims Compensation Act and to pay the cost of the proceeding.

I

The appellant argues that the trial court erred in allowing a police officer to give his opinion of the speed of the appellant's vehicle based on using a formula involving the impact on the vehicle struck. The facts surrounding the automobile accident indicate that a large truck used for gathering trash by the City of Mobile, which carried a "cherry picker," was situated in the outside lane of traffic with its hazard lights operating. The appellant was driving a Toyota Celica; he approached the trash vehicle from the rear; and, although the driver of the trash vehicle testified that the inside lane was open, the appellant failed to pass the trash truck and hit it from the rear. A girl in the passenger seat of the appellant's vehicle was killed, as well as a boy who was riding in the back seat. Beer cans were found in the automobile, as well as hand-rolled cigarettes, a purse containing a "baggie" with a "green leafy substance" inside, and a "roach," which an officer identified as marijuana. The officers also testified that the appellant "went berserk" after the accident and appeared to be under the influence of narcotics.

The driver of the trash truck testified that from his experience in having observed cars and trucks in motion and having driven automobiles, he estimated the speed of the Toyota at approximately 70 miles per hour. Thereafter, a police officer who investigated the scene of the accident testified that he had investigated several hundred accidents. He stated that he had attended schools on the investigation of traffic accidents, including the Institute of Traffic of Northwestern University in Illinois, an advanced accident investigation course in Jacksonville, Florida, with the Institute of Police Technology and Management, and a course on accident reconstruction in Jacksonville, Florida with the Institute of Police Technology and Management. He testified that, during these courses, he was taught how to calculate the speed of an automobile at the time of a collision and what factors or evidence on which to concentrate in determining speed. The officer testified to the specifics of his information gathering in the present accident, the measurements he made, and the photographs he observed. Generally, the formula which the officer used involved determining the weights of the two vehicles, determining the coefficient of friction of the road, and determining the distance which the truck was moved by the impact. The officer testified that this method has been accepted and used in the investigative community and that its reliability has been established. The officer concluded that the appellant's vehicle must have been traveling at approximately 56 to 61 miles per hour at the time of impact.

The appellant argues that the officer should not have been allowed to give his opinion as to the speed of the vehicle, because, he argues a proper predicate was not laid for the admission of such testimony. The leading case concerning expert testimony as to the estimated speed of an automobile at impact is Maslankowski v. Beam, 288 Ala. 254, 259 So.2d 804 (1972). In Maslankowski, the Court determined that expert testimony was a proper means of determining such estimated speed, as "a jury would not be equally competent to reach a conclusion from the facts of the case." 288 Ala. at 264, 259 So.2d at 813. We find that here, as in Maslankowski, there were sufficient scientific data available upon which a reasonably accurate opinion as to the speed of the appellant's vehicle could be formulated. We base this conclusion on the officer's testimony concerning his measurements, the weights, the coefficients, and his analysis of the photographs. Furthermore, the officer testified that there were some skid marks, although he did not use them in his formula. We find that this officer was a properly qualified expert. His training had surpassed that of the general "investigating officer." The officer presented his qualifications and experience and also explained his methods in detail. Any objection to the inadequacy of facts or data would go to the weight of the evidence rather than its admissibility. Maslankowski v. Beam, 288 Ala. at 265, 259 So.2d at 814.

The trial court did not abuse its discretion in allowing the officer to testify to his calculations concerning the speed of the appellant's automobile. As the Court stated in Maslankowski:

"This Court does not wish to be understood as holding that in all cases of automobile collision such evidence by any self-proclaimed expert is admissible, but as in every civil case where expert testimony is presented, the responsibility is on the trial court to satisfy itself of the requirements of the law regarding admissibility. If the responsibility is exercised with care so that reasonable expert testimony is presented based upon reasonably sound scientific approaches, then this Court will not reverse in the absence of an abuse of discretion."

288 Ala. at 269, 259 So.2d at 818.

II

The appellant argues that the trial court erred in allowing evidence of the refusal of the appellant's father to allow a blood alcohol test or drug urinalysis on the appellant. The record indicates that after the accident, the appellant was taken to the hospital. Later, with his father present, he was approached by a nurse and a police officer. The nurse asked permission for tests to determine the presence of alcohol or drugs in the appellant for law enforcement purposes, but the appellant's father refused to allow the test. The appellant remained silent. The State attempted to introduce the father's refusal at trial, and defense counsel objected on the grounds that the father's refusal was irrelevant and had no probative value. The trial court overruled defense counsel's objections.

The father's refusal to allow his son to take the test was properly admitted for the jury's consideration, as it was relevant toward the determination of whether the appellant was under the influence at the time of the accident. The test of relevancy in Alabama is liberal and "a fact is admissible if it has any probative value, however slight, upon a matter in the case." C Gamble, McElroy's Alabama Evidence, § 21.01(1) (3rd ed.1977). Relevancy is distinguishable from weight or proof. 1A Wigmore, Evidence § 29 (Tiller's rev.1983).

"[J]udges constantly find it necessary to warn us that their function in determining relevancy is not that of final arbiters but merely of preliminary testers; the evidentiary fact offered does not need to have strong, full, superlative, and probative value and does not need to involve demonstration or to produce persuasion by its sole and intrinsic force but merely needs to be worth consideration by the jury. It is for the jury to give the fact the appropriate weight in effecting persuasion."

Id.

The father's refusal was admissible because the State proved its relevancy. The refusal was in the nature of a tacit...