State of Wash. v. RUSSELL

Decision Date06 April 2011
Docket NumberNo. 26789-0-III,26789-0-III
CourtWashington Court of Appeals
PartiesSTATE OF WASHINGTON, Respondent, v. FREDERICK DAVID RUSSELL, Appellant.
OPINION TEXT STARTS HERE
UNPUBLISHED OPINION

Kulik, C.J.Frederick David Russell appeals his 2008 Whitman County convictions for three counts of vehicular homicide and three counts of vehicular assault. Mr. Russell drove his Chevrolet Blazer sport utility vehicle (SUV) into three cars, killing three people and injuring three others in June 2001 on the Moscow-Pullman Highway near the Washington-Idaho border.

Mr. Russell contends the trial court erred in multiple ways. We conclude that the trial court committed no error as to the convictions. Accordingly, we affirm them. We remand for the limited purpose of awarding credit for time served in confinement while Mr. Russell challenged extradition in Ireland.

FACTS

Mr. Russell was arrested on June 5, 2001, and charged by amended information with three counts of vehicular homicide and three counts of vehicular assault as a result of a multi-car accident on June 4. He posted bail and his trial was scheduled for November 5, 2001. Mr. Russell then fled the jurisdiction and failed to appear for a pretrial hearing on October 26. He was eventually captured in Ireland in 2005 and then extradited to the United States in 2006. Venue was changed from Whitman County to Cowlitz County due to media publicity. Trial started in October 2007.

The following facts relate mainly to trial testimony and evidence pertaining to circumstances surrounding the accident, its investigation, and evidence of Mr. Russell's intoxication. Facts pertaining to Mr. Russell's other challenges on appeal are set forth in the analyses.

Collision. At trial, Robert Hart testified that at approximately 10:35 p.m. on June 4, 2001, he was driving his Subaru Brat about 55 m.p.h. eastbound on State Route (SR) 270 from Pullman to his workplace at a motel in Moscow. The sky was clear and the roads were bare and dry. The highway is one lane in each direction, with a 55 m.p.h. speed limit.

Mr. Hart noticed a vehicle, later identified as Mr. Russell's vehicle, advancing from behind him "very, very rapidly" and repeatedly blinking its high beam/low beam headlights. Report of Proceedings (RP) at 3590. He monitored the vehicle, an SUV, until it was behind him an estimated 8 to 10 feet. Mr. Hart then swerved onto the right shoulder and stopped across the fog line. He momentarily lost sight of the SUV in his rear and side view mirrors before seeing it swerve onto the westbound shoulder and then proceed in the westbound lane parallel to the fog line. Mr. Hart believed the SUV was going at least 90 m.p.h. He saw headlights cresting the top of a hill up ahead, and the SUV that had gone around him appeared to speed up in an attempt to return to the eastbound lane. Mr. Hart had not returned to the lane of travel and was stopped on the shoulder when he observed the SUV sideswipe a westbound car, a green Geo driven by Alecia Lundt, before colliding with another westbound vehicle behind the Geo, a white 1978 Cadillac driven by Brandon Clements.

Mr. Russell's SUV was a Chevrolet Blazer that had been modified with a four-inch lift kit so that it sat higher than a normal sized car. Jacob McFarland was a passenger.

Ms. Lundt's Geo was the first car in a line of four westbound vehicles. Jill Baird was driving her Honda about 50 m.p.h. immediately behind the Geo and managed to veer to the shoulder and avoid collision. Ms. Baird was in her own lane prior to the collision. The third car in line was Mr. Clements' Cadillac. Mr. Russell's SUV's initial point of impact with the green Geo occurred on the crest of a hill in a no passing zone, 3/4 feet inside the westbound lane. Mr. Russell's SUV's subsequent impact with the Cadillac sliced off its front and rear driver's side and obliterated the vehicle. Mr. Clements and his passengers Stacy Morrow and Ryan Sorensen died instantly. Three more passengers in the Cadillac, Sameer Ranade, Kara Eichelsdoerfer, and John Matthew Wagner, all sustained extensive serious and permanent injuries. Mr. Ranade sustained multiple rib fractures, a pelvic fracture, a kidney laceration, and a life-threatening ruptured thoracic aorta. Following emergency surgery, he was flown to Harborview Medical Center for additional surgery, spent two weeks on a ventilator in intensive care and then six weeks in a nursing home.

Ms. Eichelsdoerfer suffered four broken ribs, pubic and tail bone fractures, heart and lung contusions, a brain injury impairing her motor functioning for one year and facial lacerations causing permanent scarring. After hospital care in Pullman, she too was flown to Harborview for surgery. She required three months of 24-hour care.

Mr. Wagner suffered a bruised kidney, seven broken transverse processes, a scraped cornea and a fractured collar bone requiring surgery and hospitalization for two weeks. His vision remains impaired. Mr. Wagner testified he initially saw an oncoming car pull out and strike the vehicle in front of them, go back into its lane and then come back into their lane. He noticed on the speedometer that the Cadillac was travelling about 50 m.p.h.

Eric Haynes was the seventh occupant of the Cadillac. He was seated in the front seat passenger side. He and the front middle passenger, Mr. Wagner, both saw the first collision with the Geo and an SUV emitting blue sparks from the front driver's side wheel as the SUV came directly toward them. Mr. Haynes said Mr. Clements instantly swerved to the right shoulder but had no time to avoid collision with Mr. Russell's SUV.

The force of the impact shoved the Cadillac counterclockwise into a rock wall. Mr. Russell's SUV then careened backwards and collided with Vihn Tran's red Geo—the fourth car in the westbound line. Mr. Russell's SUV and the red Geo both burst into flames after the occupants exited. Mr. Tran, who was traveling about 50 m.p.h., only saw the SUV come suddenly out of a dust cloud and into his lane before they collided.

Investigation. Washington State Patrol (WSP) detectives and accident reconstruction experts David Fenn and Ron Snowden investigated the scene. They used a total station instrument to take measurements and produce a diagram of their findings. There was no evidence of braking by Mr. Russell's SUV before initial impact with the green Geo. The impact tore Mr. Russell's SUV's left front tire from the wheel and canted the right front tire and wheel inward. Gouge marks in the westbound lane starting near the initial impact point showed that pavement drag on the left-hand side of the SUV caused it to rotate out of control counterclockwise and gradually swerve left as it continued eastbound. The total station measurements showed that from Mr. Russell's SUV's initial point of impact with the green Geo, approximately 34 feet inside the westbound lane, Mr. Russell's SUV then traveled 208+ feet to the point of impact with the Cadillac on the westbound lane/shoulder, before traveling another 60 feet and colliding with the Mr. Tran's Geo.

Detective Fenn opined that the severity of the damage to the Cadillac indicated Mr. Russell's SUV was traveling well over the 55 m.p.h. speed limit. Detective Snowden likewise testified that "obviously speed" was probably the most important factor in the magnitude of damage to the Cadillac. RP at 3925. He said that in hundreds of collision scene investigations, he had never seen damage that extensive to a vehicle other than when a semi truck or train was involved. Detective Fenn testified, however, that speeds of the vehicles could not be competently calculated because there was no evidence from which it could be determined beyond a reasonable doubt that Mr. Russell's SUV was braking after the initial impact with the green Geo. He said the evidence suggested Mr. Russell's SUV was not braking and that the impact with the Geo did not cause it to slow down because the collision induced no change of direction in Mr. Russell's SUV.

The defense accident reconstruction expert Richard Chapman agreed that Mr. Russell was exceeding the speed limit. Mr. Chapman disagreed, however, that speeds could not be mathematically calculated. He calculated that Mr. Russell was traveling 67 m.p.h. upon impact with the green Geo, and his speed was reduced to 30 m.p.h. at the point of impact with the Cadillac. He calculated the Cadillac's speed at 42 m.p.h. upon impact with Mr. Russell's SUV.1

The State's rebuttal expert witness Detective Ryan Spangler agreed with Mr. Chapman's formulas and thought processes, but stated that Mr. Chapman made mathematical errors in his calculations. Detective Spangler explained that under the Chapman formulas, Mr. Russell's speed at impact with the green Geo would have been 79 m.p.h. to 80 m.p.h., and 58 m.p.h. at impact with the Cadillac. But Detective Spangler said he would not have performed a speed analysis of this collision because it would require too many assumptions about factors such as westbound vehicle speeds, road friction, and difficulty in calculating change in Mr. Russell's SUV's change of velocity given the damage in the first two collisions followed by its burning in a fire. Another State's rebuttal expert, Geoffrey Genther, likewise testified that an accurate speed analysis was not possible under the circumstances of the chain of collisions. Mr. Genther had conducted his analysis in 2001 after visiting the accident scene. He also found no evidence that Mr. Russell's SUV took any evasive action prior to any of the collisions.

Immediately after the accident, Mr. Hart, who had no first responder or first aid/CPR2 training, began flagging down vehicles and telling others to call 911. He approached Mr. Russell and asked what he was thinking; Mr. Russell did not answer. Brad Raymond and his wife Kami were westbound when they arrived at the accident scene. Ms. Raymond is a trained first responder. Mr....

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