State v. Golub

• Jurisdiction: Oregon
• Court: Oregon Court of Appeals
• Writing for the Court: Before SCHWAB; FORT; SCHWAB
• Citation: State v. Golub, 24 Or.App. 19, 544 P.2d 609 (Or. App. 1976)
• Decision Date: 12 January 1976
• Parties: STATE of Oregon, Respondent, v. Kevin King GOLUB, Appellant.

Page 609

544 P.2d 609

24 Or.App. 19

STATE of Oregon, Respondent, v. Kevin King GOLUB, Appellant.

Court of Appeals of Oregon.

Argued and Submitted Nov. 21, 1975.

Decided Jan. 12, 1976.

John K. Hoover, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.

Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen. and W. Michael Gillette, Sol. Gen., Salem.

Before SCHWAB, C.J., and FOLEY and FORT, JJ.

FORT, Judge.

Defendant was convicted by a jury of criminally negligent homicide, ORS 163.145. He appeals from the resulting judgment, asserting as his sole assignment of error the admission of certain testimony of two police officers.

A brief statement of the facts relevant to a determination of the particular question presented is necessary.

The defendant was the driver of a car involved in an intersection collision with a motorcycle upon which the decedent was riding as a passenger. Defendant was traveling west on Eighth Street in Eugene. There was a stop sign at the intersection requiring traffic on Eighth Street to stop prior to entering Chambers Street. The motorcycle was traveling south on Chambers Street, the through street.

Promptly following the collision two police officers were called to and made a careful investigation of the scene of the accident. One of the areas of investigation concerned the tire marks left on the pavement by defendant's car. The record shows that Officer Michaelson was the principal investigating officer. We set forth in a footnote ¹ the portions of the testimony relevant to the assignment of error.

From that testimony and from defendant's brief it appears that the claimed error relates both to the qualification of the witness as a expert and to a contention that whether the tire marks described by the witness supported a conclusion that they were made inacceleration or deceleration of the vehicle was an invasion of the function of the jury and thus that expert opinion concerning either was inadmissible.

Defendant contends that 'the jury should have been apprised of the observations of the police officers and allowed to form their own opinions and draw their own conclusion.' Defendant contends that he was accelerating slowly into the intersection after stopping and that the collision resulted from the excessive speed of the motorcycle. He contends further that the 'opinions of (the) officers * * * precluded the jury from considering defendant's theory of the cause of the accident.'

Principal reliance is placed by defendant on the case of Bailey v. Rhodes, Adm., 202 Or. 511, 276 P.2d 713 ((1954). In that case the police officer, who investigated the accident about an hour after it occurred but was not an eyewitness to it, had been permitted to testify that in his opinion the defendant's vehicle was traveling at a rate of speed 'possibly between 70 and 90 miles an hour' at the time of the accident. See also: Webber v. Yaden, 232 Or. 113, 115--16, 373 P.2d 1007 (1962).

In reversing the trial judge, the court in Bailey said:

'In every case, when the matter of speed is involved, the question primarily is not how fast the automobile was traveling in specific miles per hour, but rather whether its speed, whatever it may have been in miles per hour, was excessive under all the facts, circumstances, and conditions existing at the time. Competent and qualified eyewitnesses who have observed a motor vehicle in motion may give their opinion as to the rate of speed it was traveling, but one not an eyewitness cannot express an opinion, based solely upon the physical facts existing following an accident, as to the rate of speed prior to the accident. A jury is as well able to draw its own inferences and reach its own conclusions from the facts presented as is the witness. Such testimony invades the province of the jury.

'In the instant case all facts upon which the police officer based his opinion were clearly presented by the evidence * * *. From these facts, the jury was in a position to determine whether the car, immediately prior to the accident, was traveling at an excessive rate of speed under the circumstances; it did not need the assistance of an expert.' 202 Or. at 523--24, 276 P.2d at 718.

More recently, our Supreme Court discussed Bailey in Marshall v. Martinson, 268 Or. 46, 55--56, 518 P.2d 1312 (1974), as follows:

'In Bailey v. Rhodes, Adm., 202 Or. 511, 523, 276 P.2d 713, 719 (1954), it was held by this court that 'one not an eye-witness cannot express an opinion, based solely upon the physical facts existing following an accident, as to the rate of speed prior to the accident.' Although that decision has been strongly criticized, it has been cited with approval in several more recent decisions.

'In Thomas v. Dad's Root Beer, Etc., 225 Or. 166, 169, 256 P.2d 418, 419, 357 P.2d 418 (1960), we held that this same rule 'should apply also to testimony from one not an eyewitness to the accident concerning the point of impact on the highway.' In Vancil v. Poulson, 236 Or. 314, 327, 388 P.2d 444 (1964), we reaffirmed that holding.

'We are not called upon in this case to overrule either Bailey v. Rhodes, supra, or Thomas v. Dad's Root Beer, Etc., supra. Even assuming, however, that the science of accident reconstruction may progress to the point that the rulings in those cases should be re-examined, it does not follow that it was error for the trial court to exclude the expert opinion testimony in this case.' (Footnotes omitted.) 268 Or. at 55--56, 518 P.2d 1317.

The issue in Bailey addressed by the court related to the officer's estimate of the speed of the vehicle when it left the highway. Proper objection was made thereto. Here, on the other hand, examination of the transcript reveals not only that the first expression of an estimated speed by either officer was brought out by the defendant himself in his cross-examination of the first officer, ² but also that he did not object to testimony from either officer concerning the speed of the vehicle at various points within the intersection. His objections were clearly directed to the qualifications of the officers as experts to express opinions concerning the inferences which could be drawn from the various tire marks. One officer had arrived at the scene within about 10 minutes after the accident and observed the marks; the other arrived about 35 minutes after the accident. Thus we need not and do not decide here the admissibility of the officers' testimony relating to speed, since defendant himself first brought the evidence in and because no proper objection was made to it.

Here, the primary issue involved the relationship, if any, discernible from the tire marks concerning when and where defendant's vehicle was accelerating or decelerating in the vicinity of and within the intersection. The challenge to the testimony related to whether the tire marks of defendant's car revealed, in the officers' opinions, that defendant's car was at relevant places accelerating or decelerating, and specifically as to whether the officers were qualified to express opinions concerning the marks.

Here, Officer Michaelson, the principal investigating officer, testified at length as appears in footnote 1 concerning the tire marks and described carefully the differences he observed in the marks left by the tires. Clearly such testimony was admissible. Wood v. Meyer, 261 Or. 113, 116, 492 P.2d 468 (1972); State v. Betts, 235 Or. 127, 134, 384 P.2d 198, 7 A.L.R.3d 1445 (1963).

He also described the differences between the marks made on the pavement during rapid acceleration and those made during rapid decleration of the tire, and particularly with reference to the tire on the wheel which furnished acceleration power in defendant's car.

Is then the determination from tire marks made upon pavement whether a vehicle was at a given place rapidly accelerating or decelerating a matter concerning which a person with the requisite knowledge or expertise who has actually observed those marks may express an opinion?

In McCormick, Evidence 31, § 14 (hornbook series, 2d ed 1972), the author states:

'If an expert witness has firsthand knowledge of material facts, he may describe what he has seen, and give his expert inferences therefrom. In this situation, it is unnecessary to couch questions eliciting the inferences in hypothetical form and it would certainly weaken the effect of the testimony to do so. * * *' (Footnote omitted.)

We conclude that nothing in Bailey is inconsistent with the rule announced above. It follows, then, that the matters above set forth relating to the tire marks were properly the subject of opinion evidence.

Was Officer Michaelson qualified to express an opinion on those matters? In Ritter v. Beals, 225 Or. 504, 525, 358 P.2d 1080, 1089 (1961), the court said:

'The correct rule is that an expert's fitness to answer opinion questions must first satisfy the discretion of the trial judge. The expert then may express an opinion on an ultimate fact if the ultimate fact cannot be equally well decided by the jury from the same evidence upon which the expert has based his opinion. Welter, Adm'x v. M & M Woodworking Co., 216 Or. 266, 278, 338 P.2d 651; Darling v. Semler, 145 Or. 259, 27 P.2d 886; Goldfoot v. Lofgren, 135 Or. 533, 541, 296 P. 843. The decision whether to receive the testimony should be left to the sound discretion of the trial judge. Following the preliminary screening by the trial judge, the jury ultimately passes upon the credibility of the witness, the soundness of his judgment, and the existence of the facts upon which his opinion was predicated. Goldfoot v. Lofgren, supra.'

See also: Sandow v. Weyerhaeuser Co., 252 Or. 377, 449 P.2d 426 (1969); Grismore v. Consolidated Products Co., 232 Iowa 328, 5 N.W.2d 646 (1942); ³ McCormick, Evidence, supra at 24.

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