State v. Lewellyn

• Decision Date: 30 May 1995
• Docket Number: 13228-5-III,Nos. 13131-9-II,s. 13131-9-II
• Citation: 78 Wn.App. 788,895 P.2d 418
• Court: Washington Court of Appeals
• Parties: The STATE of Washington, Respondent, v. Gary Lee LEWELLYN, Appellant. STATE of Washington, Petitioner, v. Rodger SMITH, Respondent and Cross-Petitioner.

Page 788

78 Wn.App. 788

895 P.2d 418

The STATE of Washington, Respondent, v. Gary Lee LEWELLYN, Appellant.

STATE of Washington, Petitioner, v. Rodger SMITH, Respondent and Cross-Petitioner.

Nos. 13131-9-III, 13228-5-III.

Court of Appeals of Washington, Division 3 Panel Two.

May 30, 1995.

As Amended on Grant of Reconsideration

Aug. 3, 1995.

Bernard W. McNallen, Spokane, for appellant in No. 13131-9-III.

Carlin M. Jude, Deputy Pros. Atty., Spokane, for respondent in No. 13131-9-III.

Joseph T. Reuter, Deputy Pros. Atty., Spokane, for appellant in No. 13228-5-III.

Brian C. O'Brien, Spokane, for respondent in No. 13228-5-III.

SWEENEY, Judge.

FACTS

State v. Lewellyn

At approximately 1:30 a.m. on April 18, 1992, while on routine patrol, State Trooper Brian Blake came upon a vehicle traveling south on Craig Road in Spokane County. The vehicle, operated by Gary Lewellyn, crossed the center line five times within a mile and a half distance. The fifth time the vehicle straddled the center line, Mr. Lewellyn traveled in the oncoming lane for several hundred feet. Trooper Blake activated his lights and stopped the car.

The trooper asked Mr. Lewellyn for his license; Mr. Lewellyn had difficulty finding it. Trooper Blake smelled the odor of intoxicants on Mr. Lewellyn's breath and asked Mr. Lewellyn to perform field sobriety tests. He agreed. Mr. Lewellyn exited the vehicle and leaned on it, apparently to keep his balance. His speech was slow and slurred and his balance was poor. The first test Trooper Blake administered was a "walk and turn". Mr. Lewellyn could not keep his balance while listening to the instructions. He stopped while walking, to steady himself, and could not touch his heel to his toe. Mr. Lewellyn stepped off the line four times and did not follow instructions. When asked to do the "one leg stand", he swayed while balancing and used his arms to balance. When asked to recite the alphabet, Mr. Lewellyn responded, "A B C H Q H". Trooper Blake arrested Mr. Lewellyn for driving while under the influence (DWI). ¹

His case was tried to a jury, in district court. At trial, Trooper Blake related his training experience and the results of the field sobriety tests. He was then permitted, over objection of Mr. Lewellyn, to express the following opinion: "My opinion was that Mr. Lewellyn had too much to drink to drive and he was under the influence of alcohol." Asked the basis for his decision to arrest Mr. Lewellyn, Trooper Blake responded: "The results of the field sobriety tests, the driving I observed, his speech was slow and slurred, his tongue was coated white, his eyes were red and blood shot. He had very poor balance."

The jury was properly instructed ² and convicted Mr. Lewellyn of DWI. He moved for a new trial in Spokane County Superior Court based primarily on the District Court's admission of Trooper Blake's opinion regarding his degree of sobriety. The court ruled that the testimony was proper and affirmed the conviction. He now appeals.

State v. Smith ³

At about midnight on August 11, 1991, Washington State Trooper Richard Wiley was driving southbound on Monroe Street in Spokane. As he approached a curve in the road, he noticed a vehicle starting to veer over the center line into his lane of traffic. Trooper Wiley veered to avoid a collision, immediately turned around and activated his emergency equipment. The vehicle stopped.

When Trooper Wiley approached the driver of the vehicle, Rodger Smith, he smelled the odor of intoxicants on his breath. He asked for Mr. Smith's driver's license, registration and proof of insurance. As Mr. Smith looked for these items, Trooper Wiley noticed that Mr. Smith had poor finger dexterity. He asked Mr. Smith if he would be willing to perform a field sobriety test; Mr. Smith agreed. The trooper noticed that Mr. Smith had a "strong odor of intoxicants, his eyes were blood shot and watery." Trooper Wiley had Mr. Smith perform several field sobriety tests which, apparently, led him to the conclusion that Mr. Smith was intoxicated. He gave Mr. Smith a portable breath test and placed him under arrest for DWI. The results of the portable breath test were not recorded.

Mr. Smith was transported to the Spokane County Public Safety Building where he was given implied consent warnings. A BAC Verifier DataMaster test administered later resulted in a reading of .12. Mr. Smith was then charged with DWI.

Prior to his trial, Mr. Smith moved in limine to exclude the opinion of Trooper Wiley regarding Mr. Smith's level of intoxication. The court denied the motion. At trial, over objection, Trooper Wiley was permitted to express the following opinion: "I felt that he was obviously intoxicated and I--at that time placed him under arrest for DWI." The jury convicted Mr. Smith as charged.

His motion for a new trial was denied and he then appealed to superior court. There the court concluded that the District Court had erred in precluding Mr. Smith from asking about the hand-held or portable breath testing. It also concluded that the District Court had erred in permitting Trooper Wiley to express an opinion on Mr. Smith's level of intoxication, because it represented an "opinion on the ultimate issue to be decided by the jury." The State of Washington sought discretionary review on April 27, 1993. Mr. Smith also appeals admission of the BAC results.

Both cases involve identical issues of law and we, therefore, consolidate them for purposes of this opinion. RAP 3.3(b).

DISCUSSION

We begin by noting that the decision to admit expert testimony is a matter within the discretion of the trial court. State v. Ortiz, 119 Wash.2d 294, 310, 831 P.2d 1060 (1992); State v. Guloy, 104 Wash.2d 412, 429, 705 P.2d 1182 (1985), cert. denied, 475 U.S. 1020, 106 S.Ct. 1208, 89 L.Ed.2d 321 (1986). And those decisions will not be overturned absent an abuse of that discretion. Guloy, at 430, 705 P.2d 1182.

It is also well settled, however, that a witness may not give an opinion as to the defendant's guilt, whether by direct statements or inferences. State v. Sanders, 66 Wash.App. 380, 387, 832 P.2d 1326 (1992), relying on State v. Black, 109 Wash.2d 336, 348, 745 P.2d 12 (1987); State v. Madison, 53 Wash.App. 754, 770 P.2d 662, review denied, 113 Wash.2d 1002, 777 P.2d 1050 (1989). This is because an opinion as to the defendant's guilt violates the "defendant's right to a trial by an impartial jury and [the defendant's] right to have the jury make an independent evaluation of the facts." Sanders, at 387, 832 P.2d 1326. As stated in Sanders, at 387, 832 P.2d 1326, "[a]n opinion as to the guilt of the defendant is particularly prejudicial and improper where it is expressed by a government official, such as a sheriff or a police officer." There are, however, factual questions, many of which bear upon the question of guilt or innocence, in which opinions are permitted.

The phrase "under the influence" means "any influence which lessens in any appreciable degree the ability of the accused to handle his automobile." (Italics omitted.) State v. Hansen, 15 Wash.App. 95, 96, 546 P.2d 1242 (1976) (quoting State v. Hurd, 5 Wash.2d 308, 315, 105 P.2d 59 (1940)). It is well settled in Washington that a lay witness may express an opinion regarding the level of intoxication of another. State v. Forsyth, 131 Wash. 611, 612, 230 P. 821 (1924) (quoting State v. Dolan, 17 Wash. 499, 513, 50 P. 472 (1897) (Intoxication is "not a question upon which only an expert could express an opinion. The witness having seen, noted and stated the condition, appearance and actions of Dolan, had sufficiently shown his qualification to testify as to the extent of his intoxication.")). Since the decision in Forsyth, this state has adopted the Federal Rules of Evidence which also accommodate the opinions of lay witnesses:

If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue.

ER 701.

The comments following ER 701 reinforce the notion that a lay witness may express an opinion regarding the degree of sobriety:

Some examples of admissible opinion testimony are mental responsibility of another.... [5 Robert] Meisenholder[, Wash.Prac., Evidence ]s 341 (1975 Supp.).

... It [ER 701] assumes that the witness will give his testimony by stating his observations in as raw a form as practicable, but permits him to resort to inferences and opinions when this form of testimony will be helpful. Both rules [ER 401 and ER 701] give the trial court a wide latitude of discretion. As a practical matter, rule 701 is unlikely to change Washington law.

Comment, ER 701.

Division One recently passed on the same question in Seattle v. Heatley, 70 Wash.App. 573, 854 P.2d 658 (1993), review denied, 123 Wash.2d 1011, 869 P.2d 1085 (1994). ⁴ We find the reasoning of Heatley persuasive. The court there, after noting the general rule precluding testimony on an ultimate issue of fact, goes on to conclude that "testimony that is not a direct comment on the defendant's guilt or on the veracity of a witness, is otherwise helpful to the jury, and is based on inferences from the evidence is not improper opinion testimony." Heatley, at 578, 854 P.2d 658.

After concluding that an officer's opinion was not objectionable merely because it included comments on the ultimate issue of fact, the court turned to the question of whether the testimony was "otherwise admissible". ⁵ It noted that the officer did not directly comment on guilt or the credibility of witnesses, and that his opinion was based on direct observations and experience. Heatley, at 579, 854 P.2d 658. The court reasoned that if a lay witness is permitted to express such an opinion, there is no logical reason why an expert...