State v. Phillips

• Decision Date: 05 October 2004
• Docket Number: No. 29804-0-II.,29804-0-II.
• Citation: 123 Wash. App. 761,98 P.3d 838
• Parties: STATE of Washington, Respondent, v. Kevin Michael PHILLIPS, Appellant.
• Court: Washington Court of Appeals

98 P.3d 838

123 Wash. App. 761

STATE of Washington, Respondent, v. Kevin Michael PHILLIPS, Appellant.

No. 29804-0-II.

Court of Appeals of Washington, Division 2.

October 5, 2004.

Craig Paul Lindsay, Kitsap Co. Prosecutors Office, Port Orchard, WA, for Respondent.

James Lewis Reese, Attorney at Law, Port Orchard, WA, for Appellant.

PART PUBLISHED OPINION

QUINN-BRINTNALL, C.J.

A jury convicted Kevin Michael Phillips of vehicular homicide and vehicular assault. RCW 46.61.520, .522. One of Phillips's passengers died at the scene and the other was critically injured when the car Phillips was driving crossed the centerline, left the road, and crashed into a telephone pole, shearing the pole in two. On appeal, Phillips challenges the trial court's ruling allowing the State's accident reconstruction expert to testify using computer assisted reconstruction calculations. We affirm.

FACTS

On September 29, 2001, Phillips was driving on a rural road in Kitsap County with two passengers, Perry Dieckmann and Joseph Lanning. The speed limit on the road was 40 mph. The weather was clear and the road was dry. At approximately 10:40 P.M., Phillips's car went off the road and collided with a telephone pole. Dieckmann, the front-seat passenger, was critically injured and Lanning, the rear-seat passenger, died at the scene.

Shortly after the accident, Kitsap County Sheriff Deputy Russell Clithero went to the scene to investigate. Clithero noticed that the accident had occurred at a sweeping curve in the road. Clithero observed tire marks on the eastbound lane, which crossed the centerline and then went off the road. According to Clithero, where the car left the road, it looked like "a bulldozer [had] ... cut a path through" the bushes and completely "sheared off" the telephone pole. IV Report of Proceedings (RP) at 260. Clithero created a diagram based on this evidence to show how the accident had occurred.

On October 23, 2001, Clithero spoke with Phillips at Phillips's attorney's office. Phillips told Clithero that he had been driving along the road at 60 mph when he saw a deer enter the road right in front of him. Phillips said that when he saw the deer, he "slammed on [his] brakes and swerved to the left." IV RP at 275. According to Phillips, this caused the vehicle to turn, and when he attempted to correct the rotation, the car went off the road. Phillips said that while sliding toward the pole, Dieckmann grabbed the steering wheel and turned it to the right, causing the crash.

On September 25, 2002, the State charged Phillips with one count of vehicular homicide and one count of vehicular assault. During trial, the State presented John Hunter as an expert witness. In analyzing the accident, Hunter used PC-Crash, a software program that performs physics calculations from input data to reconstruct and simulate traffic accidents. Based on Clithero's diagram, Hunter input data into PC-Crash to simulate Phillips's accident. Hunter adjusted the potential speeds of the vehicle, simulating the vehicle's path over the tire track marks, through the bushes, and hitting the pole. Based on his analysis, Hunter testified that Phillips's vehicle was traveling at approximately 80 mph when the accident occurred. Hunter opined that Phillips's failure to negotiate the sweeping curve was due to the vehicle's speed, rather than Phillips's asserted swerving maneuver.

Phillips also presented an expert, Kenneth Cottingham, who was a mechanical engineer. Cottingham testified that the tire marks at the scene were "yaw marks," meaning that "[t]he car [was] going sideways, point[ing] one way and sliding and going another way, [simultaneously] rotating." VI RP at 530. Cottingham testified that based on the critical speed analysis on the yaw marks, Phillips's vehicle was traveling at 60 mph at the time of the accident. Cottingham also opined that the curve did not put the vehicle "into a yaw" and that the vehicle went into a yaw when Phillips suddenly swerved, as he would have done to avoid hitting a deer. Cottingham testified that once the vehicle went into a yaw, it was "irrevocable." VI RP at 550.

The jury convicted Phillips on October 9, 2002, and the trial court imposed a standard range sentence of 30 months. On October 21, 2002, Phillips filed motions to arrest judgment and for a new trial. The trial court denied both motions and Phillips appealed.

ANALYSIS

ACCIDENT RECONSTRUCTION SOFTWARE EVIDENCE

The main question on appeal is whether the trial court committed reversible error by admitting Hunter's accident reconstruction testimony. Hunter used a computer software program called PC-Crash to assist in reconstructing the collision and estimating the speed Phillips's car was traveling when it sheared the telephone pole. Phillips does not challenge Hunter's qualification as an accident reconstruction expert. Instead, he claims that PC-Crash is not generally accepted in the scientific community and, thus, the trial court erred in ruling that the State carried its burden of establishing that testimony from an accident reconstruction expert who used PC-Crash to analyze data was admissible under the Frye¹ test.

Expert testimony is admissible when the witness qualifies as an expert, the opinion is based on an explanatory theory generally recognized in the scientific community, and the testimony would help the trier of fact. State v. Greene, 139 Wash.2d 64, 73-74, 984 P.2d 1024 (1999), cert. denied, 529 U.S. 1090, 120 S.Ct. 1726, 146 L.Ed.2d 647 (2000). ER 702 also permits admission of qualified expert testimony when scientific, technical, or other specialized knowledge will help the trier of fact understand the evidence or determine a fact in issue. A witness without personal knowledge who fails to satisfy the requirements of ER 702 is merely speculating. Such a witness has no relevant admissible evidence and must be excluded. Safeco Ins. Co. v. McGrath, 63 Wash.App. 170, 177, 817 P.2d 861 (1991), review denied, 118 Wash.2d 1010, 824 P.2d 490 (1992). Although we review a trial court's decision to admit or exclude expert testimony for an abuse of discretion, a court that admits expert testimony unsupported by an adequate foundation abuses its discretion. Weyerhaeuser Co. v. Commercial Union Ins. Co., 142 Wash.2d 654, 683-84, 15 P.3d 115 (2000); see also State v. Atsbeha, 142 Wash.2d 904, 918-20, 16 P.3d 626 (2001) (trial court did not abuse its discretion in excluding expert testimony that did not meet the requirements of ER 401, 402, or 702).

In Washington, evidence derived from a novel scientific theory or principle is admissible only if the theory or principle has achieved general acceptance in the relevant scientific community. ER 702; State v. Copeland, 130 Wash.2d 244, 261, 922 P.2d 1304 (1996) (affirming Washington's adherence to Frye v. United States, 293 F. 1013 (D.C.Cir.1923), despite U.S. Supreme Court's adoption of a different test in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)). We review the trial court's decision to admit scientific evidence under the Frye standard de novo. State v. Kunze, 97 Wash.App. 832, 854, 988 P.2d 977 (1999), review denied, 140 Wash.2d 1022, 10 P.3d 404 (2000). But if the evidence does not involve a novel scientific theory, a Frye hearing is not required. State v. Hayden, 90 Wash.App. 100, 104, 950 P.2d 1024 (1998); see also State v. Vermillion, 112 Wash.App. 844, 862-63, 51 P.3d 188 (2002) (concluding that evidence from a police tracking device is not subject to a Frye analysis), review denied, 148 Wash.2d 1022, 66 P.3d 638 (2003); State v. Noltie, 57 Wash.App. 21, 29-30, 786 P.2d 332 (1990) (concluding that the colposcope is in general use in the medical community and is "no more a `novel' device or scientific process subject to the Frye standard than binoculars or a weak microscope"), aff'd, 116 Wash.2d 831, 809 P.2d 190 (1991).

Trial courts routinely admit testimony from qualified accident reconstruction experts. See, e.g., State v. Hanna, 123 Wash.2d 704, 707-08, 871 P.2d 135, cert. denied, 513 U.S. 919, 115 S.Ct. 299, 130 L.Ed.2d 212 (1994); State v. Quiros, 78 Wash.App. 134, 136, 896 P.2d 91, review denied, 127 Wash.2d 1024, 904 P.2d 1158 (1995); State v. Reid, 74 Wash.App. 281, 286, 872 P.2d 1135 (1994). As noted, Phillips does not challenge Hunter's qualifications as an accident reconstruction expert. Instead he claims that because Hunter used PC-Crash, a computerized reconstruction software program, to calculate the speed of the vehicle and reconstruct the crash, it is PC-Crash and not Hunter that is giving evidence and that PC-Crash must meet the Frye standard.

Initially, we note that Hunter testified that PC-Crash was not based on a novel scientific theory. He testified that the computer software merely applies the long-accepted laws of physics and computerized accident reconstruction calculations. Hunter testified that reconstruction experts could make the same calculations by hand or on spreadsheets but that PC-Crash's capacity to break down the simulations into 15-millisecond segments made it a more useful tool. As Hunter presented it, PC-Crash is little more than an advanced calculator and the Frye standard would not apply. State v. Russell, 125 Wash.2d 24, 70, 882 P.2d 747 (1994) (concluding that introduction of certain statistical probability evidence did not implicate Frye; computer programs were "nothing more than sophisticated record-keeping systems"), cert. denied, 514 U.S. 1129, 115 S.Ct. 2004, 131 L.Ed.2d 1005 (1995).

But we do not hold here that computerized accident simulation programs like PC-Crash are exempt from the Frye standard, and for purposes of this appeal, we accept the trial court's decision that a Frye hearing was required. Thus, we now proceed with a de novo review of the trial court's findings following the Frye hearing. Kunze, 97 Wash.App. at 854, 988 P.2d 977.

First, we determine if the evidence...