State v. Farr-Lenzini

• Decision Date: 08 January 1999
• Docket Number: FARR-LENZIN,A,No. 21969-7-II,21969-7-II
• Citation: 93 Wn.App. 453,970 P.2d 313
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Lisa Annppellant.

Page 453

93 Wn.App. 453

970 P.2d 313

STATE of Washington, Respondent, v. Lisa Ann FARR-LENZINI, Appellant.

No. 21969-7-II.

Court of Appeals of Washington Division 2.

Jan. 8, 1999.

Mark W. Muenster, Vancouver, for Appellant.

Kathleen Ann Rukliss, Clark Co. Deputy Pros. Atty, Vancouver, for Respondent.

SEINFELD, J.

Lisa Ann Farr-Lenzini appeals her conviction for attempting to elude a police officer, RCW 46.61.024. Because the officer's opinion testimony as to Farr-Lenzini's state of mind constituted harmful error, we reverse. We further hold that the traffic infraction of negligent driving in the second degree, RCW 46.61.525, is not a lesser included offense of reckless driving, RCW 46.61.500.

Facts

Early on a September Sunday morning, a Washington State Patrol trooper and his trooper cadet passenger observed Farr-Lenzini drive her Ford Probe through the intersection of SR 503 and 199 th Street in rural Clark County at what the trooper believed to be an excessive speed. The trooper followed in his marked patrol car, trying to overtake her. At that point, the trooper was about one thousand feet behind the Probe.

The weather conditions were clear and dry except for a patch of fog that both vehicles went through. When the trooper emerged from the fog, he saw that the Probe had passed another vehicle. He estimated that it was traveling over eighty miles per hour in a fifty mile per hour zone at that time. The trooper then activated his siren and overhead lights and continued his pursuit.

At one point, as the Probe slowed for a left turn onto 72 nd Avenue, the trooper came within three or four hundred feet of it, but the gap widened as the Probe accelerated to over eighty miles per hour in a fifty mile zone. As the Probe sped along, the trooper saw three vehicles in the oncoming lane pull over. According to the trooper, before the Probe turned right onto 179 th Street, its turn signal flashed once and it braked "really hard." At that point, the trooper was approximately five hundred feet behind the Probe and trying hard to maintain the distance. Also at that point, according to the trooper, the Probe's driver was braking and accelerating "real hard" and appeared to be driving more "erratically." At one point on 179 th Street, the trooper's speedometer exceeded one hundred miles per hour and he was still five hundred feet behind the Probe.

At the next intersection, 179 th St. and 50 th Avenue, the trooper saw the Probe's driver "hit the brakes real hard" before going through a stop sign and on to 50 th Avenue. The trooper cadet estimated the Probe was going between thirty and forty miles per hour as it rounded the corner. And the trooper said that the Probe cut across oncoming lanes to get around the corner, and its rear-end "almost, sort of, slides to the right a little bit" as it rounded the corner. But when the trooper later checked the intersection for skid marks, he found none.

Farr-Lenzini testified at trial that she had tried to stop at the 179 th and 50 th intersection but "I must have been going faster that [sic] I realized and my brakes were slightly squishy, and I looked in both directions and in front of me and I didn't see anybody. ¹ So I just chose to go ahead and make my turn."

As Farr-Lenzini braked for the intersection, the trooper's vehicle came within several hundred feet of her, but the trooper lost ground again as the Probe accelerated to an estimated seventy miles plus per hour in a forty mile zone.

At the next intersection, 50 th Avenue and Salmon Creek Avenue, Farr-Lenzini stopped at the stop sign, saw the trooper coming up behind her, and pulled into a parking lot. She testified that this was the first time she saw the patrol car and that she had not heard the siren until then.

The trooper had traveled approximately four and a half miles since activating his lights and sirens and the pursuit had lasted for approximately three and a half to four minutes. During this time, the trooper saw no pedestrians ² or animals. Nor did he see any vehicles exiting driveways.

When the trooper stopped Farr-Lenzini, she was not intoxicated, she had a valid driver's license, her car contained no contraband, and the Probe was registered in her name. She was dressed in running clothes and said that she was on her way to meet a friend with whom she planned to go to Portland for a charity run.

The State charged Farr-Lenzini with one count of attempting to elude, RCW 46.61.024, or in the alternative, the lesser included offense of reckless driving, RCW 46.61.500.

At trial, over defense counsel's continuing objection, the State questioned the trooper as follows:

Q: Just based on your training and experience, do you have an opinion as to what the defendant's driving pattern exhibited to you?

A: It exhibited to me that the person driving that vehicle was attempting to get away from me and knew I was back there and refusing to stop.

An acoustical engineer testified as an expert on Farr-Lenzini's behalf. The engineer had tested the acoustical characteristics of the Probe. Based upon information he obtained from the siren manufacturer and the Washington State Patrol, along with other technical data, environmental factors, and the distances reported by the trooper, the engineer concluded that it was very probable that Farr-Lenzini could not hear the police sirens inside the Probe.

Farr-Lenzini admitted to going through the stop sign and speeding, but said she was largely unaware of her exact speed and did not think she went as fast as one hundred miles per hour. Farr-Lenzini said, "I was driving for the road conditions."

Farr-Lenzini took exception to jury instruction 11, which stated in part:

A person who drives in excess of the maximum lawful speed at the point of operation may be inferred to have driven in a reckless manner.

This inference is not binding upon you, and it is for you to determine what weight, if any, such inference is to be given.

The trial court rejected Farr-Lenzini's proposed jury instruction on the lesser included offense of negligent driving in the second degree, reasoning that a traffic infraction was not a lesser included offense to a criminal charge.

In closing argument, defense counsel asked the jury to consider whether Farr-Lenzini is the type of "person who's going to go out and commit this crime [.]" In response, the State argued: "What is a profile of somebody eluding? You know, look at Ted Bundy, common experience. Look at things people like that - good looking guy, goes to UPS Law School; come to find out, he's a mass murderer." The trial court overruled Farr-Lenzini's prejudice objection.

The jury convicted Farr-Lenzini of attempting to elude and the trial court denied her motion for new trial. On appeal, she challenges: (1) the admission of the trooper's opinion testimony as to her state of mind; (2) the denial of her proposed negligent driving instruction; (3) the court's inference instruction; (4) the prosecutor's closing argument; and (5) the sufficiency of the evidence. She also argues that cumulative errors denied her a fair trial.

I. Opinion Testimony

Farr-Lenzini argues that the trooper's opinion testimony as to her state of mind violated her constitutional right to a jury trial under the federal and state constitutions. Because it is the jury's responsibility to determine the defendant's guilt or innocence, no witness, lay or expert, may opine as to the defendant's guilt, whether by direct statement or by inference. State v. Black, 109 Wash.2d 336, 348, 745 P.2d 12 (1987); State v. Garrison, 71 Wash.2d 312, 315, 427 P.2d 1012 (1967). Such an opinion would invade the jury's independent determination of the facts and violate the defendant's constitutional right. State v. Carlin, 40 Wash.App. 698, 701, 700 P.2d 323 (1985). Further, the closer the tie between an opinion and the ultimate issue of fact, the stronger the supporting factual basis must be. 1 JOHN WILLIAM STRONG ET AL., MCCORMACK ON EVIDENCE § 12 (4 th ed.1992).

The State argues that the court properly admitted the trooper's opinion under ER 704. ER 704 allows for the admission of an opinion or inference on an ultimate issue that the trier of fact must decide provided that the opinion or inference is otherwise admissible. Seattle v. Heatley, 70 Wash.App. 573, 578-79, 854 P.2d 658 (1993). To be otherwise admissible, opinion evidence must also satisfy ER 403, ER 701, and ER 702. Heatley, 70 Wash.App. at 579, 854 P.2d 658. Here, we find the trooper's opinion was inadmissible under ER 702 and ER 701.

The court did not state whether it was admitting the trooper's challenged opinion as expert or as lay testimony. "Expert testimony on scientific, technical or specialized knowledge is admissible under ER 702 if it will assist the trier of fact to understand the evidence or a fact in issue." ³ Hiner v. Bridgestone/Firestone, Inc., 91 Wash.App. 722, 734-35, 959 P.2d 1158 (1998) (citing Queen City Farms, Inc. v. Central Nat'l Ins. Co., 126 Wash.2d 50, 102, 882 P.2d 703, 891 P.2d 718 (1994)). ER 702 requires us to make two inquiries: "(i) does the proffered witness qualify as an expert; and (ii) would the proposed testimony be helpful to the trier of fact." State v. Greene, 92 Wash.App. 80, 96, 960 P.2d 980 (1998); State v. Janes, 121 Wash.2d 220, 235-36, 850 P.2d 495, 22 A.L.R.5th 921 (1993).

"Practical experience is sufficient to qualify a witness as an expert." State v. Ortiz, 119 Wash.2d 294, 310, 831 P.2d 1060 (1992). The trooper here had nearly twenty years experience, was a vehicle instructor trained in accident investigation, and had participated in fifty to eighty arrests for attempting to elude. Thus, he certainly qualified as an expert for purposes of police procedures, speed, vehicle dynamics, and accident reconstruction.

But the expert testimony of an otherwise qualified witness is not admissible if the issue at hand lies outside the witness' area of expertise. Queen City Farms...