Smith v. Busick, CA07-968 (Ark. App. 4/2/2008)
| Decision Date | 02 April 2008 |
| Docket Number | CA07-968. |
| Parties | WILLIE SMITH APPELLANT v. KEVIN R. BUSICK APPELLEE AFFIRMED. |
| Court | Arkansas Court of Appeals |
A Jefferson County jury found that both appellant Willie Smith and appellee Kevin Busick were equally at fault for an automobile accident that occurred within the Tucker city limits. The circuit court subsequently entered a judgment dismissing both appellant's claim and appellee's counterclaim. Appellant appeals from the order, contending that the circuit court erred in allowing a state trooper to express an opinion on fault, in refusing to allow evidence under the excited-utterance exception to the hearsay rule, and in refusing to instruct the jury on a violation of Ark. Code Ann. § 27-51-307(b)(2) (Repl. 1994) (). We affirm, holding (1) that the circuit court did not err in allowing the trooper to state that there was no reason that appellee could not attempt to pass appellant's vehicle; (2) that the circuit court did not err in excluding the hearsay testimony, as it did not qualify as an excited utterance; and (3) that the circuit court did not err in refusing to grant appellant's proffered instruction, as he presented insufficient proof that the accident occurred at an "intersection."
On August 28, 2005, appellant and appellee were both traveling southbound on State Highway 15. As appellant attempted to turn left into the Tucker Fire Department, he was struck by appellee, who was attempting to pass appellant at the time. The highway where the accident occurred is marked with a yellow dotted line, and the only sign nearby is one indicating a fire department in the area. The parties disagreed about many of the facts that led to the accident, including whether appellant signaled a left turn, whether appellee signaled before trying to pass appellant, and whether appellee was traveling at an excessive rate of speed prior to the crash. Appellant filed a complaint for negligence on November 8, 2005,1 and appellee filed a counterclaim on November 30, 2005. Trial was held May 30, 2007.
A major issue at trial was whether the accident occurred at an "intersection." Appellant was turning into a gravel driveway leading to the fire department. Farther down the road was the water company, which was blocked by a gate. On the other side of the highway from the gravel driveway was "Rice Street," which was described as an unpaved narrow roadway. Appellant opined that he was turning into a "street."
The jury heard testimony from Corporal Mike Phillips of the Arkansas State Police, who had trained as an accident reconstructionist. He testified that the entrance to the fire department's parking lot was not labeled as a street; therefore, he considered it to be a driveway to a private lot. He considered Rice Street to be a driveway, as there was nothing in the area (e.g., a sign) identifying it as "Rice Street." He stated that the part of the highway where the accident occurred was marked with a dashed line, meaning that drivers were allowed to pass, but that they were to do so with caution. Counsel for appellee asked Phillips, "Do you find any reason to find that Mr. Busick should not have been passing at the time that he was passing, based on your investigation?" Counsel for appellant objected, stating that the question was for the jury. The court overruled the objection, and Phillips replied, "I find no reason or basis to find that Mr. Busick should not have been passing at the time that he was passing." When asked by appellant's counsel, Phillips acknowledged that it is illegal to pass a vehicle within one hundred feet of approaching an intersection.
Appellant presented the testimony of Claude Horton, who was at the fire department on the day of the accident. Outside the presence of the jury, counsel for appellant proffered that Horton would testify that someone came up to him in the fire department parking lot and said, "That guy just passed me going fast." Appellant's counsel argued that the statement was admissible as an excited utterance and that Beverly Smith would testify to the same. Appellee's counsel objected, arguing that the statement was inadmissible hearsay and that appellant's counsel never indicated that he would be calling Horton as a witness on the issue of liability. The court did not allow the testimony. After that ruling, appellant's counsel proffered Mrs. Smith's testimony concerning the hearsay statement. Accordingly to her proffered testimony, Mrs. Smith arrived at the scene about ten to fifteen minutes after the accident. An unidentified person later arrived at the scene and said, When asked what the person looked like when he was talking, Mrs. Smith stated that the man was "excited." When asked by the court, she noted that the man did not witness the actual impact. After hearing the proffer, the court ruled that the statement did not qualify as an excited utterance, as the person making the utterance would have to be under the influence of the event, which was the crash. It rejected appellant's argument that the "exciting" event was being passed at a high speed.
The parties discussed jury instructions prior to closing arguments. Appellant asked the court to instruct the jury on the statute that prohibited vehicles from passing within one hundred feet of an intersection. The court was troubled by the instruction because Phillips had described the road as a driveway. After hearing arguments from the parties and considering the definition of "intersection," the court declined to give the instruction. After deliberations, the jury unanimously found that both appellant and appellee were equally at fault in the accident. The court entered judgment accordingly on June 4, 2007. Appellant filed a timely notice of appeal.
Appellant argues that the circuit court erred in allowing Phillips to express his opinion as to fault. He contends that Phillips had no special training to give an opinion as to fault and had not observed the accident or any of the events leading to it.2 As noted by both parties, questions concerning the admission of evidence are reviewed under the abuse-of-discretion standard. See, e.g., FMC Corp., Inc. v. Helton, 360 Ark. 465, 202 S.W.3d 490 (2005). Abuse of discretion is a high threshold that does not simply require error in the circuit court's decision, but requires that the trial court act improvidently, thoughtlessly, or without due consideration. Id.
Appellant compares the instant case to Butler v. Dowdy, 304 Ark. 481, 803 S.W.2d 534 (1991), which involved a collision similar to the one in the instant case. There, the lower court allowed the police officer to testify that he found no wrongdoing by the appellee and that the appellant had either made an illegal left turn or failed to yield on a left turn. The supreme court found that the testimony was inadmissible under Rule 701, as the testimony did not help the fact finder determine the facts or decide who was responsible for the accident. The court ultimately affirmed, however, as the case was tried before a judge and there was other evidence to support the verdict.
Butler is distinguishable from the instant case. There, the police officer opined that the appellant either made an illegal turn or failed to yield, but he had no basis for that opinion. Here, Phillips was cross-examined on the conditions of the roadway, and the point being made was that there were no conditions present (e.g., a solid-yellow line, a sign, an intersection) that would have made passing illegal. Further, though appellant argued that the issue was a question for the jury, an opinion that embraces an ultimate issue to be decided by the jury is not inadmissible if it is otherwise admissible under the rules of evidence. See id. (citing Ark. R. Evid. 704). The circuit court did not err in allowing Phillips's testimony. We affirm on this point.
Next, appellant argues that the circuit court erred in excluding Horton's and Mrs. Smith's hearsay testimony regarding the statement of the unidentified person. He contends that the statement was admissible as an excited utterance, as the unidentified person made the statement while still being startled by being passed at a high rate of speed.
Under Rule 802 of the Arkansas Rules of Evidence, hearsay evidence is generally inadmissible. However, an excited utterance is a recognized exception to the rule. See Ark. R. Evid. 803(2). An excited utterance is "[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." Id. To qualify as an excited utterance, the statement in question must appear to be spontaneous, excited, or impulsive, rather than the product of reflection and deliberation. Warner v. State, ...
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