State v. Nichols

Decision Date03 December 1999
Docket NumberNo. 26009.,26009.
Citation541 S.E.2d 310,208 W. Va. 432
CourtWest Virginia Supreme Court
PartiesSTATE of West Virginia, Plaintiff Below, Appellee, v. Bobby Lee NICHOLS, Defendant Below, Appellant.
Dissenting Opinion of Justice Maynard December 15, 1999.

Franklin D. Cleckley, Morgantown, West Virginia, Attorney for the Appellant.

Darrell V. McGraw, Jr., Attorney General, Dawn E. Warfield, Deputy Attorney General, Charleston, West Virginia, Attorneys for the Appellee. DAVIS, Justice:

Bobby Lee Nichols, appellant and defendant below (hereinafter referred to as "Mr. Nichols"), was convicted by a jury for the crime of third offense DUI. Mr. Nichols was also convicted of driving on a suspended license. The circuit court sentenced Mr. Nichols to one to three years confinement for the DUI conviction. The circuit court also sentenced Mr. Nichols to six months confinement for driving on a suspended license. The sentences ran concurrently. On appeal, Mr. Nichols argues two assignments of error. Mr. Nichols first contends that the trial court erred by permitting opinion testimony by lay witnesses. Next, Mr. Nichols asserts that the trial court erred by admitting into evidence Mr. Nichols prior DUI convictions.1 Based upon the parties' arguments on appeal, the record designated for appellate review, and the pertinent authorities, we reverse the decision of the Circuit Court of Roane County.

I. FACTUAL AND PROCEDURAL HISTORY

On the evening of April 28, 1997, a 1990 Pontiac Grand Prix struck a tree on the property of Mr. Ernest Summerville near Route 36 in Roane County. Upon hearing the accident, Mr. Summerville walked outside and observed Mr. Nichols standing alone at the rear of the car. Mr. Summerville then returned inside his home.

Shortly after the accident, Deputy Sheriff L. Todd Cole and Trooper Rick Hull responded to the accident scene. When the officers arrived, Mr. Nichols was not at the accident site. Deputy Cole searched the car and found documents containing the name "Bobby Nichols."2 While investigating the accident scene, the officers received a call from a local wrecker company. Mr. Nichols had requested that his car be towed. The call from Mr. Nichols was made from the home of Mr. Leonard Cottrell.

The officers proceeded to the home of Mr. Cottrell. Upon arriving, the officers were told that Mr. Nichols was taken to the home of Al Nichols. The officers then proceeded to the home of Al Nichols where they found Mr. Nichols. Deputy Cole testified that he detected a strong odor of alcohol on Mr. Nichols and that Mr. Nichols' eyes were red and glassy. Additionally, Deputy Cole observed an open wound on Mr. Nichols' head. A field sobriety test was administered to Mr. Nichols. He failed the test. The officers then placed Mr. Nichols under arrest.3

A trial was subsequently held on June 2, 1998. Mr. Nichols presented evidence to show that he was not the driver of the car. Dennis Mullins, Jr. testified that he was driving the car at the time of the accident.4 Mr. Mullins testified that Mr. Nichols was a passenger in the car when it wrecked. According to Mr. Mullins, after the accident Mr. Nichols became angry. So, Mr. Mullins left the scene of the accident. Mr. Nichols' testimony was consistent with the testimony of Mr. Mullins.

The State presented two witnesses, Ms. Ruth Pinson and Mr. Denzil Mace, both of whom are neighbors of Mr. Summerville. Ms. Pinson and Mr. Mace testified that they saw only Mr. Nichols at the accident scene. Both witnesses believed that Mr. Nichols was the driver of the car. On June 3, 1998, the jury returned a guilty verdict for third offense DUI. The jury also returned a guilty verdict against Mr. Nichols for driving while his license was revoked. The circuit court sentenced Mr. Nichols on September 14, 1998, to one-to-three years confinement for the DUI conviction, and six months confinement for driving on a suspended license. It is from the circuit court's sentence that Mr. Nichols now appeals.

II. STANDARD OF REVIEW

The two issues raised on appeal by Mr. Nichols concern the admission of certain evidence by the trial court. It is a well established principle of law in West Virginia that "[r]ulings on the admissibility of evidence are largely within a trial court's sound discretion[.]" State v. Louk, 171 W.Va. 639, 643, 301 S.E.2d 596, 599 (1983). In syllabus point 6 of State v. Kopa, 173 W.Va. 43, 311 S.E.2d 412 (1983), this Court held that "[t]he action of a trial court in admitting or excluding evidence in the exercise of its discretion will not be disturbed by the appellate court unless it appears that such action amounts to an abuse of discretion." Accord State v. Crabtree, 198 W.Va. 620, 626, 482 S.E.2d 605, 611 (1996) ("Our review of a trial court's ruling to admit or exclude evidence [is] premised on a permissible view of the law, [and] is only for an abuse of discretion"). We have also ruled that a "[a] judgment will not be reversed because of the admission of improper or irrelevant evidence when it is clear that the verdict of the jury could not have been affected thereby." Syl. Pt. 11, State v. Wade, 200 W.Va. 637, 490 S.E.2d 724 (1997).

III. DISCUSSION
A. The Admission of Opinion Testimony by a Lay Witness

Mr. Nichols first contends that the trial court committed reversible error by allowing two lay witnesses to express an opinion as to whether they believed Mr. Nichols was driving the car at the time of the accident. Over Mr. Nichols' objections, the following exchange occurred between the prosecutor and Ms. Pinson:

Q. Ma'am again, let me ask you the question. Do you have an opinion who was driving that vehicle that night?
A. Common sense would tell you it had to be Bobby. The driver's side windshield was busted and his head was cut up. And there was no one else around.

Additionally, the prosecutor asked Mr. Mace the following:

Q. Do you know who was driving the automobile that evening that was involved in that accident?
A. I assumed it was him. There was no other—no other people around the vehicle than him.

Mr. Nichols argues that the opinion testimony by Ms. Pinson and Mr. Mace fails to comply with Rule 701 of the West Virginia Rules of Evidence. As a general rule, a lay witness must confine his or her testimony to a report of the facts. A lay witness may testify in the form of inferences or opinions only when from the nature of the subject matter no better or more specific evidence can be obtained. See United States v. Fowler, 932 F.2d 306, 312 (4th Cir.1991) (finding requirements for admission of lay opinion satisfied). We have previously explained that "[n]ormally, opinion testimony by a lay witness is limited to opinions rationally based on the witness' perception which are helpful for a clear understanding of the witness' testimony or a determination of a fact in issue." Evans v. Mutual Min., 199 W.Va. 526, 530, 485 S.E.2d 695, 699 (1997).5 Rule 701 states:

If the witness is not testifying as an expert, his or her 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.6

(footnote added).

We have previously explained the rule as having only a two part test; that is, whether the witness' testimony was "(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." Evans v. Mutual Mining, 199 W.Va. 526, 530, 485 S.E.2d 695, 699 (1997). See 29 Charles Alan Wright & Victor James Gold, Federal Practice and Procedure § 6254, at 126 (1997) (recognizing the traditional two part test). However, both parties have outlined a test for analyzing three distinct factors required under Rule 701:(1) personal perception, (2) rational connection, and (3) helpfulness. We do not disagree with this approach. In fact, a few federal courts have applied the requirements of Rule 701 with such a three-part test. See Swajian v. General Motors Corp., 916 F.2d 31, 36 (1st Cir.1990) ("For opinion testimony of a layman to be admissible three elements must be present. First, the witness must have personal knowledge of the facts from which the opinion is to be derived. Second, there must be a rational connection between the opinion and the facts upon which it is based. Third, the opinion must be helpful in understanding the testimony or determining a fact in issue"); Lubbock Feed Lots, Inc. v. Iowa Beef Processors, 630 F.2d 250, 263 (5th Cir.1980) (same). Because the three-part test is a workable explanation of Rule 701, we believe the test has a practical value for trial courts and therefore hold that in order for a lay witness to give opinion testimony pursuant to Rule 701(1) the witness must have personal knowledge or perception7 of the facts from which the opinion is to be derived;8 (2) there must be a rational connection between the opinion and the facts upon which it is based; and (3) the opinion must be helpful in understanding the testimony or determining a fact in issue. "If these requirements are satisfied, a layman can under certain circumstances express an opinion even on matters appropriate for expert testimony." Lubbock Feed Lots, Inc. v. Iowa Beef Processors, 630 F.2d 250, 263 (5th Cir.1980).9 Having adopted the three-part test, we proceed to utilize that test to analyze the evidence in this case.

1. Personal Knowledge or Perception. The first prong of the test requires that a witness have personal knowledge or perception of the facts from which the opinion is to be derived. Evans v. Mutual Mining, 199 W.Va. 526, 530, 485 S.E.2d 695, 699 (1997) (lay opinion testimony must be "based on the witness' perception" of events).10 Indeed, "[i]t is firmly established in this state that the opinion of a witness who is not an...

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