State v. Spry, 11053

Decision Date17 May 1973
Docket NumberNo. 11053,11053
Citation207 N.W.2d 504,87 S.D. 318
PartiesSTATE of South Dakota, Plaintiff and Respondent, v. Steven SPRY, Defendant and Appellant.
CourtSouth Dakota Supreme Court

Ronald Clabaugh, of Bangs, McCullen, Butler, Foye & Simmons, Rapid City, for defendant and appellant.

David Stanton, Asst. Atty. Gen., Pierre, for plaintiff and respondent; Gordon Mydland, Atty. Gen., Pierre, S.D., on the brief.

WINANS, Justice.

The defendant, Steven Spry, was tried before a jury and found guilty of second degree manslaughter. From the judgment entered thereon he appeals. We affirm.

The record discloses that on June 3, 1971, at about 2:00 A.M., the defendant was enroute in his automobile from Lead to Deadwood when he was involved in a head-on collision with another car. Defendant was alone in his automobile at the time. There were three people in the other automobile, two of whom died as a result of the accident. About an hour and a half after the incident, two police officers visited the defendant at the hospital where he was being treated. The defendant was placed under arrest for driving while intoxicated after one of the officers detected alcohol on his breath. A sample of his blood was taken at that time. It was subsequently discovered that the blood sample contained between .20 and .21 percent alcohol by weight, which was more than sufficient to raise the statutory presumption that the defendant had been driving while under the influence of alcohol.

At the trial, the state relied heavily on the results of the blood alcohol test as well as the testimony of Clyde McCue, a highway patrolman who had investigated the accident. McCur testified as to what he observed at the scene of the accident. After being duly qualified as an expert, he was also permitted to express an opinion as to where the place of impact had been in the collision between the two automobiles. His opinion was that the place of impact was in the lane across the center line from where the Spry automobile had the right to travel.

On appeal, the defendant contends that the trial court committed reversible error in: (1) permitting McCue to testify as to his opinion concerning the place of impact between the two automobiles; (2) denying the defendant's motion to suppress the results of the blood test when defendant was not informed of the death of Don Smith which fact was known to the officers at the time the blood sample was requested; (3) instructing the jury on the presumption of intoxication; (4) refusing to instruct the jury that the burden of proof was upon the state to establish that nothing was added to the blood sample in its taking which would affect the accuracy of the test for alcohol content; and (5) denying defendant's motion to suppress the results of the blood alcohol test when the blood withdrawn for the test was not withdrawn incident to a lawful arrest.

With respect to the first contention, the defendant does not dispute the qualifications of the witness to testify as an expert. Rather, the defendant argues that the expert opinion evidence should not have been permitted for the reason that the subject matter did not require an expert opinion and that the opinion invaded the province of the jury. Whether or not an expert opinion should be permitted is a question to be determined by the trial court in the exercise of sound discretion. Kleinsasser v. Gross, 1964, 80 S.D. 631, 129 N.W.2d 717. The trial court's ruling on the matter will not be disturbed in the absence of a clear abuse of discretion. We find no such abuse of discretion in the present case.

As a general rule, a duly qualified expert witness should be permitted to express an opinion upon a subject whenever the opinion will be of assistance to the jury in reaching a correct conclusion. Wentzel v. Huebner, 1960, 78 S.D. 481, 104 N.W.2d 695; Smith v. Gunderson, 1971, 86 S.D. 38, 190 N.W.2d 841 1; Rabata v. Dohner, 1969, 45 Wis.2d 111, 172 N.W.2d 409. Such a situation arises whenever an intelligent evaluation of the facts would be difficult without the application of the expert's peculiar knowledge or experience. Conversely, if the facts are equally available to the jury, and understandable by them, then the opinion of an expert is of no assistance and it should be rejected. Kleinsasser v. Gross, supra.

In the present case, it would have been exceedingly difficult for the jury to make a determination as to the place of impact without the benefit of expert opinion testimony. The testimony of the defendant and the surviving passenger from the other car left much to be desired. Likewise, evidence concerning factors present at the scene of the accident meant little to the jury. Thus, under the circumstances of this case the trial court was justified in concluding that McCue's opinion would be beneficial to the jury in reaching the correct conclusion.

Furthermore, McCue's opinion was not objectionable as 'usurping the province of the jury' merely because it embraced an ultimate issue of fact. 2 This is the modern and logical view. See 31 Am.Jur.2d, Expert and Opinion Evidence, § 22, p. 518. The writer at pages 520 and 521 states:

'Logically, there would appear to be no wrongful invasion of the province of the jury in permitting an expert to express his opinion upon an ultimate fact in a case where expert opinion is necessary to assist the jury in reaching the right determination. In such case, as in the case of an eyewitness to a decesive fact, if the jury are satisfied of the trustworthiness of the evidence, the evidence may be conclusive of the issue, but they are not bound to accept the opinion or to render the verdict according to it.'

In reaching our conclusion that expert opinion evidence was admissible concerning the place of impact, we have carefully reviewed our decision in Kleinsasser v. Gross, supra. In Kleinsasser, we held that it was error to permit testimony as to the point of impact. However, our determination was predicated upon the peculiar circumstances of that case. The basis for our decision was that the expert opinion did not aid the jury in reaching the correct result since the jury was capable of determining the point of impact from the testimony of three eyewitnesses to the collision. Moreover, the expert testimony in that case lacked foundation and contradicted the testimony of the eyewitnesses. 3 Thus, Kleinsasser is not controlling in the present case.

As indicated above, the defendant's second and fifth contentions are that the trial court erred in denying his motion to suppress the results of the blood test. They will be discussed together. It appears that after the defendant was placed under arrest for driving while intoxicated, the arresting officer asked permission of him to have the blood sample withdrawn. The defendant was advised that he had the right to refuse to submit to the test and that he could lose his driver's license for a year if he so refused. The defendant was not advised that the driver of the other car had died as a result of the accident, although it is undisputed that the police officer was aware of that fact. The defendant did ask whether any of the other victims was seriously injured and the police officer responded, 'I'm afraid so.' After receiving this information and warning, the defendant declined to exercise his right to refuse to submit to the test and the blood sample was withdrawn.

The defendant argues that the failure of the police officer to inform him that a person died as a result of the accident invalidated his consent to submit to the blood test and that without his consent thereto, the results of the test were inadmissible as evidence. We find no merit to this argument.

In support of this argument, the defendant relies upon SDCL 32--23--10. That section provides in substance that when a police officer has reasonable grounds to believe that a person has been driving under the influence of alcohol and has been charged with a traffic violation, the officer can request that such person submit to a chemical analysis of his blood. 4 It also provides that consent to submit to the test is implied from the fact of his driving. It further states:

'Such person shall be requested by

'Such person shall be requested by and shall be advised by said officer of his right to refuse to submit to such analysis and the provisions of §§ 32--23--11 and 32--23--12 in the event of such refusal with respect to the revocation of such person's driving permit.'

Applying the above described statute to the present case, it is clear that the results of the blood test were admissible despite the failure of the police officer to inform the defendant that the driver of the other car had died as a result of the accident. The statute makes no requirement that the subject be informed of any more than that he has the right to refuse and that his license will be suspended if he does. State v. Batterman, 1961, 79 S.D. 191, 110 N.W.2d 139.

The defendant, however, makes the further contention that his motion to suppress should have been sustained because the blood withdrawn for the test was not withdrawn incident to a lawful arrest. Assignment #5, supra. This contention is based upon the federal court's holding in the case of Holland v. Parker, D.C., S.D., 354 F.Supp. 196.

The Holland case is not dispositive of our case because the factual situation is considerably and importantly different. Holland had refused to take the blood test, and maintained that no lawful arrest of himself had been made by the officer because the charge against him was a misdemeanor and, secondly, the implied consent statute failed to provide him a hearing prior to revocation of his driver's license. Spry, on the other hand, not only did not refuse to give his consent, but a fair reading of the transcript shows that he claimed to know all about the consent statute, and upon request willingly gave his consent to the taking of the blood sample. The...

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