State v. Kozukonis
| Decision Date | 02 December 1965 |
| Docket Number | No. 10495,10495 |
| Parties | STATE v. Veto E. KOZUKONIS. Ex. |
| Court | Rhode Island Supreme Court |
J. Joseph Nugent, Atty. Gen., Corinne P. Grande, Special Counsel, for the State.
Arthur M. Merolla, Pawtucket, for defendant.
This is a criminal complaint charging the defendant with operating a motor vehicle while under the influence of intoxicating liquor in violation of G.l.1956, § 31-27-2, as amended. On an appeal from a conviction thereunder in a district court the case was tried before a justice of the superior court sitting with a jury and resulted in a verdict of guilty. Thereafter, the defendant's motion for a new trial was heard and denied. The case is now before us on his exceptions to the denial of that motion, to the refusal of the trial justice to direct a verdict of not guilty, to his refusal to pass the case because of remarks made by the prosecutor in arguing to the jury, to his denial of certain requests to charge and to certain evidentiary rulings.
The essential facts are that at approximately 1:30 a. m. on September 24, 1962, a Providence police officer observed defendant's automobile weaving to the left and right of the white center line in a highway. In obedience to the officer's command the car came to a halt and when defendant, the driver, alighted the officer observing that he was swaying and detecting an odor of alcohol on his breath, had him taken to a police station. There Dr. Arnold W. Ciccone, a practicing physician and the deputy police surgeon of Providence, examined him at about 2 a. m. He testified that defendant had a strong odor of alcohol on his breath; that he stated that he was not ill, sick or diabetic and that he had not been taking insulin or other medication; that his speech was slurred and thick; that his clothes were in a disorderly condition; and that his eyes were bloodshot, dilated, and reacted poorly to a flashlight. Additionally, his testimony was that defendant swayed and wobbled during a balance test, that he was unable to touch the tip of his nose with his index finger, and that not until the third attempt was he able to pick up some coins from the floor.
The doctor's direct examination concluded with the opinion, given over objection, that defendant 'was under the influence of alcohol to a degree that rendered him unfit to drive.' It is defendant's exceptions to the rulings allowing that testimony to stand which constitute the first issue he now raises. The substance of his contention is that permitting an expression of opinion on the ultimate issue before the jury was tantamount to invading and usurping their exclusive province.
While the issue raised by defendant as it relates to a driving under-the-influence prosecution has not heretofore been passed upon by us, an examination of our decisions in cases involving similar prosecutions discloses that the admission of opinion evidence as to an accused's condition has been the practice. State v. Herbert, 89 R.I. 355, 152 A.2d 545; State v. Lacy, 87 R.I. 134, 138 A.2d 827; State v. Turcotte, 68 R.I. 119, 26 A.2d 625. Elsewhere, apparently the majority view permits the opinion to be given. People v. Ravey, 122 Cal.App.2d 699, 265 P.2d 154; State v. Fox, 248 Iowa 1394, 85 N.W.2d 608; State v. Allen, 120 Or. 652, 253 P. 371. Contra, Newton v. City of Richmond, 198 Va. 869, 96 S.W.2d 775.
The real question, however, is whether the circumstances will permit a relaxation of the exclusion rule urged by defendant. Professor Wigmore says that a policy of exclusion premised solely on the ground of the coincidence between an opinion and the ultimate fact in issue is both too narrow and too broad and lacks justification in principle. 7 Wigmore, Evidence (3d ed.), § 1921, p. 18. While he offers no hard and fast rule, he suggests a flexible and practical approach and one which turns on whether the opinion will appreciably assist the jury in the performance of their function. Id. § 1923, p. 21. His views find ample support both in the decisions and from other text writers. People v. Wilson, 25 Cal.2d 341, 153 P.2d 720; Commonwealth v. Chapin, 333 Mass. 610, 132 N.E.2d 404; State v. Killeen, 79 N.H. 201, 107 A. 601; 2 Jones, Evidence (5th ed.), § 411, p. 772; 2 Wharton, Criminal Evidence (12th ed.), § 518, p. 342.
Our own decisions are reconcilable, though in a negative way, with the Wigmore approach. Thus, we held inadmissible an opinion of an expert in Fontaine v. Follett, 51 R.I. 413, 155 A. 363, on the question of whether a highway was safe and convenient for travelers with teams, carts, and carriages, and in Glennon v. Great Atlantic & Pacific Tea Co., 87 R.I. 454, 143 A.2d 282, as to whether a wall was a hazard because of its location and lack of safeguards. In each of those cases the jury, aware of all the facts and circumstances, were fully as capable as was the expert to conclude as to the ultimate issue and for that reason the opinions solicited would not have provided them with any material assistance. Neither case, therefore, is authority for the bald proposition that in no instance may an expert testify on the very issue upon which the jury must ultimately rest their verdict.
In the case at bar the doctor ruled out other possible causes for the symptoms exhibited by defendant and, in addition, subjected him to various sobriety tests and other examination procedures beyond the competence of the average layman either to perform or to interpret. The witness' opinion that defendant 'was under the influence of alcohol to a degree that rendered him unfit to drive,' notwithstanding its identity with the ultimate issue, could therefore have been and probably was of assistance to the jurors in their search for the truth.
Moreover, the jury had before them not only the doctor's opinion, but also other testimony both from him and the arresting officer relating to defendant's appearance and actions. It was their duty to acquit or convict based upon all the evidence and in the performance of their obligation they were at liberty to reject the expert opinion. State v. Supers, 77 R.I. 251, 75 A.2d 27. For the reasons suggested, we find no merit in defendant's contention that it was error to admit the doctor's opinion.
We turn to the next contention. In cross-examination, Dr. Ciccone testified that a possible test for determining intoxication would be a comparison of defendant's signature with the one penned by him when he was examined at the station house. Having elicited that response, defendant then proposed that he be allowed to sign his name so that the witness might make a comparison.
The trial justice refused permission, giving as reasons therefor that the earlier signature had not been one of the bases upon which the witness rested his opinion as to intoxication and that the subject matter of defendant's handwriting had not been inquired into during direct examination. Although we do not fault the ruling, we do the reasons given.
The rule permitting a trial justice in the exercise of his discretion to limit the scope of cross-examination within the reasonable bounds of matters inquired into during the direct examination, State v. Campbell, 95 R.I. 370, 187 A.2d 543, York v. Ventilato, 80 R.I. 192, 94 A.2d 820, has no application if the witness is an expert who has given opinion testimony. In such a case the latitude permitted is much wider. Within limits of relevancy the scope is expanded so as to allow questions touching matters testified to in direct...
To continue reading
Request your trial
-
State v. Porraro
... ... We have stated that an expert's opinion on an ultimate issue to be determined by the jury can be admitted if the trial justice determines that receipt of such information will assist the jury. E. g., State v. Kozukonis, 100 R.I. 298, 301, 214 A.2d 893, 896 (1965). In making this determination, the trial justice is necessarily accorded wide discretion. See State v. Vargus, 118 R.I. 113, 126, 373 A.2d 150, 156 (1977). In Barenbaum v. Richardson, 114 R.I. 87, 90-91, 328 A.2d 731, 733 (1974), we explicated the ... ...
-
State v. Bowden
... ... State v. Costa, 111 R.I. 602, 306 A.2d 36 (1973); State v. Kozukonis, 100 R.I. 298, 303, 214 A.2d 893, 897 (1965). No precise formula is available for making that determination. What is required instead is that each of the challenged comments be viewed in the context in which it appears and in the light of the attendant circumstances. State v. Peters, 82 R.I ... ...
-
State v. Conway
... ... A prosecutor may even express his opinion or belief regarding a defendant's guilt or the veracity of a witness's testimony as long as it is based on the evidence and does not permit the jury to infer that it stems from reasons or knowledge outside the record. State v. Kozukonis, 100 R.I. 298, 304, 214 A.2d 893, 897 (1965). See State v. Plante, 111 R.I. 386, 302 A.2d 804 (1973) ... A determination of whether a challenged remark is prejudicial cannot be decided by a fixed rule of law. State v. Collazo, R.I., 446 A.2d 1006, 1010 (1982). The trial ... ...
-
State v. Benton
... ... at 66, 298 A.2d at 792. In State v. Andrews, 86 R.I. 341, 134 A.2d 425 (1957), the expert testified that the test sample and the sample taken from the victim had "originated from the same source." Id. at 345, 134 A.2d at 428. In State v. Kozukonis, 100 R.I. 298, 214 A.2d 893 (1965), we described the expert's testimony as "rul(ing) out other possible causes for the symptoms exhibited by defendant." Id. at 301, 214 A.2d at 896. And in State v. Baron, 65 R.I. 313, 14 A.2d 795 (1940), we similarly described the expert's testimony as excluding ... ...