State v. Bettencourt

• Decision Date: 06 January 1999
• Docket Number: No. 97-53-C.A.,97-53-C.A.
• Citation: 723 A.2d 1101
• Parties: STATE v. Jeffrey BETTENCOURT.
• Court: Rhode Island Supreme Court

723 A.2d 1101

STATE v. Jeffrey BETTENCOURT.

No. 97-53-C.A.

Supreme Court of Rhode Island.

January 6, 1999.

Lauren Sandler Zurier, Asst. Attorney General, Aaron Weisman, Asst. Attorney General, for plaintiff.

Lauren E. Jones, Jean Rosiello, John A. Macfadyen, III, Providence, Francis P. Castrovillari, Cranston, for defendant.

Before WEISBERGER, C.J., and LEDERBERG, BOURCIER, FLANDERS, and GOLDBERG, JJ.

OPINION

BOURCIER, J.

Following his conviction by a Superior Court jury trial on two counts of driving so as to endanger, death resulting (G.L.1956 § 31-27-1), and after sentence and final judgment entered thereon, Jeffrey Bettencourt (defendant) appeals to this Court seeking reversal of his convictions and a new trial.

The defendant asserts on appeal that the trial justice erred by (1) admitting into evidence (a) a photograph of one of the decedents, (b) the medical testimony of the medical examiner, Dr. Sicerica, (c) the lay opinions concerning the speed of the defendant's truck at the time of the incident and limitations placed on the cross-examination of the lay witnesses' estimates of speed, and (d) expert opinion concerning speed; (2) the trial justice's denial of the defendant's motion for a new trial; and (3) the propriety of the sentences imposed by the trial justice. In addition, the defendant requests this Court to review the trial court's in-camera inspection of sealed medical records to determine whether the trial court was correct in concluding after an in-camera review, that the medical records contained nothing of relevance that would assist the defendant's cross-examination of the state's witnesses. For the reasons stated below, we deny the defendant's appeal and affirm the judgment of conviction. The facts insofar as relevant to the issues raised in this appeal are related below.

Facts and Procedural History

On Friday, June 30, 1995, six young women and two young men left Fairfield, Connecticut to go to a rock concert in Mansfield, Massachusetts. At approximately 3:30 p.m., as the group was traveling on Interstate Route 95 in two cars—a Jeep Wrangler and a Ford Taurus—the right rear tire of the Jeep blew out in the far left lane of a straight away just north of Jefferson Boulevard in Warwick. Traffic was heavy on this clear day, so Liz Daily (Liz), the driver of the Jeep, pulled over into the left median shoulder. The median shoulder was nine feet wide. The Taurus pulled in behind the Jeep, and the flashing emergency lights of both cars were activated. The Jeep then was moved so that its left wheels were touching the Jersey barrier that divided the highway, and the two young men, David Tippett (David) and Richard Nolfi (Richard), began changing the tire.

Four of the young women stood between the cars while the remaining two young women, Amber Austin (Amber) and Liz, positioned themselves behind the Taurus and close to the yellow fog line that separated the median shoulder from the left travel lane. From there, they directed oncoming traffic away from the parked vehicles by waving their arms. Traffic responded to their signaling by slowing down and pulling over into the next travel lane. Approximately ten minutes later, however, a yellow pick-up truck driven by the defendant entered the far left lane and proceeded for one half mile passing general traffic at a speed somewhere between sixty and eighty miles per hour.¹ The yellow pick-up truck veered into the left median shoulder causing Amber and Liz, who had been attempting to signal the driver, to jump out of the way. The truck first hit the side of the Taurus and then hit Richard and David leaving them mangled together, Richard on top of David, approximately fifty feet beyond the Jeep in the median shoulder. After hitting the Jeep, the yellow truck grated the Jersey barrier a further 400 feet, knocking over a utility pole before finally stopping. David was killed instantly; Richard died at a hospital shortly thereafter.

At the Grand Jury proceedings, the defendant testified that he entered Interstate 1-95 at the airport connector, then crossed over four lanes into the far left lane so that he could make the best time possible through a construction site that lay ahead. The distance from the airport connector to the location of the Taurus was estimated to be sixtenths of a mile. The defendant also stated that the nearest vehicle in his lane of travel was approximately one quarter-mile ahead.

At trial, the defendant testified that although traffic in the travel lane slowed down for what he believed to be no apparent reason, he continued to travel at approximately sixty miles per hour. He testified that he then noticed a purple Saturn or sports car activate its directional light and attempt to pull out in front of him.² The defendant testified that rather than slowing down, he attempted to avoid the purple car by veering to the left. He testified that it was only after the purple car had pulled back into its proper lane and the defendant had pulled alongside, that he looked up and saw the Taurus and the young people. In the statement he made to the police, however, one and one-half hours after the collision, the defendant was able to describe vividly what he had observed ahead of him in the high-speed breakdown lane as he was approaching the Taurus. He described two cars and five people, three of whom were near the barrier and two of whom were close to the lane of travel. He described a female wearing a white top and a white hat who was standing towards the back of a gray Ford Taurus, and a second female with dark clothes and dark hair standing near the barrier. He stated that both the Taurus and a black Jeep were "in the high speed breakdown lane, but close to the travel lane." At trial, the defendant testified that the Taurus "was close to the lane, it was, like, on the line." When pressed for details on cross-examination, the defendant stated, "I have to say it was very close, maybe possibly over slightly. I, you know, I know I was in my lane of travel, and I hit it." The defendant admitted to telling the investigating officer at the scene that the Taurus was inside the breakdown lane. At trial, he testified that as he was attempting to swerve to the right, the protruding left rear tool box of his truck caught the right rear of the Taurus, causing his truck to spin counter-clockwise, crash into the disabled Jeep, and slide along the barrier.

Additional facts will be supplied as needed.

Analysis

The defendant appeals his jury conviction of two counts of driving to endanger, death resulting, pursuant to G.L.1956 § 31-27-1.³ Before addressing the merits of the defendant's appeal, we first must consider application of the reckless driving statute.

"Conviction under the reckless-driving statute requires evidence that the defendant embarked on a course of conduct demonstrating a heedless indifference to the consequences of his act." State v. Dionne, 442 A.2d 876, 883 (R.I.1982); see In re David P., 697 A.2d 1099, 1100-01 (R.I.1997) (per curiam)

. "Mere error in judgment by a driver is not sufficient for conviction; neither is the negligence that could support a civil action on damages." Dionne, 442 A.2d at 883. "Recklessness, like negligence, must be related to time, place, persons and surrounding circumstances and be measured by them. Excessive speed under some circumstances may amount to mere negligence and under other circumstances it may constitute willful or wanton disregard of the safety of others." State v. Lunt, 106 R.I. 379, 383, 260 A.2d 149, 152 (1969).

Thus, "in order to sustain a conviction for a reckless homicide under § 31-27-1 * * * the accused must have known or should have known that his manner of driving created an unreasonable risk of harm but he need not have intended to cause such harm. Intentional conduct, not intentional harm, is what is proscribed by [this] statute[]." Lunt, 106 R.I. at 382, 260 A.2d at 151.

With this standard in mind, we now may analyze the merits of the defendant's various arguments.

Admission of Evidence

(a) The Photograph

Prior to trial, the defendant moved to exclude any and all photographs depicting the injuries of the two victims on grounds that their probative value was substantially outweighed by the danger of unfair prejudice pursuant to Rule 403 of the Rhode Island Rules of Evidence. The defense argued that introduction of such photographs would be unnecessary to prove death or causation because it intended to concede that the defendant was operating the truck that struck and killed Richard and David. In response, the prosecution argued that it only intended to introduce one photograph of David's body for the purpose of showing the jury "the relevant positions of the people and vehicles in order to illustrate the testimony testified by our experts and respondent at the scene."⁴ Subsequently, the defense requested the trial court to cover that portion of the photograph that depicted David's face. After examining the photograph, the trial justice denied the motion finding that it was material, relevant, and not being introduced solely to inflame the jury.

At trial, the contested photograph was admitted as one of a series of photographs presented during the testimony of Kenneth Marandola, the first Rhode Island State Trooper to arrive at the scene. After estimating that David's body was located approximately twenty-five feet in front of the Jeep, Trooper Marandola testified that the photograph fairly and accurately depicted that location. At this point, defense counsel objected without stating the grounds for such objection.⁵ In later testimony, State Police Corporal Matthew Giardina, who arrived at the scene after the victims had been removed, testified that the measured distance between the Jeep and the bodily fluids in the median shoulder was fifty-one feet.

On appeal, the defendant alleges that the trial justice abused her discretion in admitting the photograph,...