Hubbard v. Com., 910673

• Decision Date: 10 January 1992
• Docket Number: No. 910673,910673
• Citation: 243 Va. 1,413 S.E.2d 875
• Parties: Anne Lancaster HUBBARD v. COMMONWEALTH of Virginia. Record
• Court: Virginia Supreme Court

Page 875

413 S.E.2d 875

243 Va. 1

Anne Lancaster HUBBARD v. COMMONWEALTH of Virginia.

Record No. 910673.

Supreme Court of Virginia.

Jan. 10, 1992.

Henry M. Massie, Jr., Robert G. Cabell, Jr. (McGuire, Woods, Battle & Boothe, on brief), for appellant.

Leah A. Darron, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: CARRICO, C.J., COMPTON, STEPHENSON, WHITING and LACY, JJ., POFF, Senior Justice, and COCHRAN, Retired Justice

CARRICO, Chief Justice.

Following a two-car collision in which two persons were killed, a jury in the Circuit Court of Henrico County convicted Anne Lancaster Hubbard of two offenses of involuntary manslaughter and fixed her punishment at twelve months in jail for each offense. The trial court approved the convictions but suspended the jail sentences on condition that Hubbard perform 500 hours of community service, refrain from operating an automobile for 3 years, and remain of good behavior for 10 years.

In a petition for appeal filed with the Court of Appeals, Hubbard presented four questions:

A. Did the [trial] court err in excluding the evidence of the alcohol impairment, the erratic driving, and the emotional upset of the driver of the [other vehicle?]

B. Did the [trial] court err in permitting reconstructed opinion evidence of speed in a criminal case[?]

C. [Was] the reconstructed opinion evidence of speed presented in this case ... of the type that was helpful to the jury[?]

D. [Was] the jury ... properly instructed on manslaughter for purposes of deciding this case[?]

By order, the Court of Appeals refused Hubbard an appeal with respect to Question A, relating to the actions of the driver of the other vehicle, and Question D, relating to instructions. The Court awarded Hubbard an appeal limited to Questions B and C, relating to the reconstructed opinion evidence of speed.

In a published opinion, the Court of Appeals held that the trial court did not err in admitting the reconstructed opinion evidence of speed and affirmed Hubbard's convictions. Hubbard v. Commonwealth, 12 Va.App. 250, 403 S.E.2d 708 (1991). Then, on her petition to this Court, we awarded Hubbard an appeal to review all four of the issues outlined above.

The accident occurred on River Road in western Henrico County. River Road is a two-lane highway running generally east and west, with a posted speed limit of 45 m.p.h.

On the evening of March 18, 1989, Anne Hubbard and a friend, Mary Veeneman Hamilton, both teenagers, attended a party at the home of a schoolmate off River Road west of the accident scene. Neither Hubbard nor Hamilton had anything alcoholic to drink. ¹ Leaving the party about midnight, they proceeded eastwardly on River Road, with Hubbard driving her 1970 Buick Electra convertible.

David Cox, who previously had dated Hubbard, was also a guest at the party. Driving a red Volkswagen, he overtook Hubbard and Hamilton on River Road. When Cox drove closely behind Hubbard, she "tapped her brakes," and he proceeded to pass her over a solid double yellow line. As he was passing, she accelerated, almost causing him to collide with an oncoming vehicle. She then "tailgated" Cox as he attained speeds of 65 to 70 m.p.h.

Cox slowed to 55 m.p.h. as he passed through a series of curves in a construction area. After leaving the construction zone, he accelerated and proceeded down a hill. He began to pull away from Hubbard, but she also accelerated as she followed him down the hill. She was driving so fast that Hamilton was "hanging onto the [passenger's] door with both hands." Hubbard asked Hamilton if she were scared, and Hamilton replied affirmatively. After this exchange, although Hubbard was still "going fast," Hamilton felt no further acceleration and may have even detected "a bit" of braking. By this time, Cox had driven out of sight.

Hubbard reached the bottom of the hill and proceeded up a grade around a curve to the right. As she came out of the curve, her vehicle "started skidding." Hamilton "looked up and ... saw three sets of headlights and [the Hubbard vehicle] went toward the middle set." That was all Hamilton remembered "besides waking up."

At the same time, John Gregory Senter and his wife, Vicki, were travelling westwardly along River Road. Ms. Senter was driving and, because she was unfamiliar with River Road, she was "going a little bit slower than normal," about 35 to 40 m.p.h. She "turned the rear view mirror up" because she felt a car behind her was following too closely.

As the Senters approached the intersection of River Road and Twin Lakes Lane, they saw "coming toward [them] around [a] curve [the extremely erratic] headlights of a car which ... was out of control ... going very, very fast ... and swerving left and right." When the car crossed into the Senters' lane, Ms. Senter pulled to the right onto the paved surface of Twin Lakes Lane to avoid a collision. The car was swerving to the opposite side of the road as it passed by the Senters' car. John Senter looked over his shoulder and watched the car, observing that "as it apparently crossed into the lane behind [him] it blocked out the headlights" of the car that had been following them. "After ... a couple of seconds," the Senters heard a "horrible crash." They did not stop but continued on to their home, where they called the police.

Mary Hamilton awoke to find herself sitting in Hubbard's wrecked Buick "on the [wrong] side of the road." ² Hamilton looked "down the hill and ... noticed another car"; she thought she recognized it as one belonging to Susan Darr, but she "didn't think it could be hers."

The Hubbard vehicle had in fact collided with an automobile operated by Susan Darr. She and a passenger, Catherine A. Davis, were killed in the collision. Both were classmates of Anne Hubbard and Mary Hamilton at a private school in western Henrico County.

The accident was investigated by Officer Ronald James Smith, Sr., a member of the Crash Team of the Henrico County Police Department. Officer Smith approached the accident scene from the west and found Susan Darr's vehicle, a 1980 Honda Accord, partially in the ditch and partially on the pavement of the westbound lane of River Road. ³ He found Hubbard's Buick some 125 feet east of the Honda, also partially in the ditch and partially on the pavement of the westbound lane.

Smith determined that the impact between the two vehicles occurred in the westbound lane, near the center line and approximately 300 feet east of Twin Lakes Lane. Near the point of impact, also in the westbound lane, Smith found a "gouge" mark one foot in length which, he opined, was made when a "sharp piece or object" under the left front of the Honda struck the pavement on impact. ⁴

Smith found a "yaw" mark in the eastbound lane extending from the south side of the lane to "the point where the impact occurred." This mark, Smith said, was made by the edge of the right front tire on Hubbard's Buick and meant "the vehicle had lost control coming or going from the right side of the road over to the left side."

As explained in the record, a yaw mark is made by the "lead" tire of a vehicle which is travelling too fast for the angle at which the tire is turned, causing the tire to slide sideways across a road surface while still rotating. ⁵ Yaw marks are always arc- shaped and characteristically display striations running obliquely across the mark itself.

Smith measured the yaw mark made by the Hubbard vehicle and found it to be 90 feet in length. He then measured a chord across the first 45 feet of that length, next measured to the mid-point of the chord, struck a 90-degree angle, and determined that the middle ordinate was 5 inches. From these figures, Smith ascertained that the radius of the circle in which the Hubbard vehicle had travelled was 607.8 feet.

Several days later, Smith conducted "test skids" at the accident scene and determined that the coefficient of friction of the road surface was .887. ⁶ Then, using a mathematical formula, speed = the square root of 15 X radius X friction factor, he concluded that the Hubbard vehicle was travelling at an average speed of 89.92 m.p.h. through the first 45 feet of the yaw.

Stephen B. Chewning, president of Traffic Safety Consultants of Richmond, and Dr. James Charles Wambold, professor of mechanical engineering at Pennsylvania State University, were accepted by the trial court as experts in the field of automobile accident reconstruction, and both testified as witnesses for the Commonwealth. Chewning stated that, using Officer Smith's data and doing additional testing of his own for the "friction level," he determined that the average speed of the Hubbard vehicle through the first 45 feet of the yaw was 89 m.p.h. Dr. Wambold testified that after reviewing Smith's data and making an adjustment for "yaw angle," his calculation of the speed of Hubbard's vehicle through the first 45 feet of the yaw came within 1 m.p.h. of Smith's determination of 89.92 m.p.h.

The defense called a father-and-son team of engineers, Sammie F. Lee and David S. Lee of Louisville, Kentucky, who were accepted by the trial court as experts in the field of automobile accident reconstruction. The Lees agreed that the speed of motor vehicles can be determined from yaw marks, but they disagreed with the opinions given by the Commonwealth's experts with respect to Hubbard's speed.

Sammie Lee cited a professional journal that noted numerous examples of miscalculations resulting from use of the theory by unqualified persons. He stressed the need to recreate the exact pavement conditions in testing to determine the coefficient of friction as well as the necessity of adjusting the results obtained from skid tests made at slow speeds to reflect the same conditions present in high-speed yaws. He noted the effect that the application of brakes and the use of different types of tires can have on the result in a given case. He said that, in his...