Whittmore v. State, M-85-115

• Decision Date: 10 September 1987
• Docket Number: No. M-85-115,M-85-115
• Citation: 742 P.2d 1154
• Parties: Marcia Lynn WHITTMORE, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1154

742 P.2d 1154

Marcia Lynn WHITTMORE, Appellant, v. The STATE of Oklahoma, Appellee.

No. M-85-115.

Court of Criminal Appeals of Oklahoma.

Sept. 10, 1987.

Hank Welch, Hugo, for appellant.

Michael C. Turpen, Atty. Gen., Mary F. Williams, Asst. Atty. Gen., Mary Quinn, Legal Intern, Oklahoma City, for appellee.

OPINION

BRETT, Presiding Judge:

Appellant, Marcia Lynn Whittmore, was charged by information with two (2) counts of Manslaughter in the First Degree, Case No. CRF-83-159. She was tried before a jury in the District Court of Bryan County and found guilty of two counts of Negligent Homicide in violation of 47 O.S.1981, § 11-903. The jury assessed the maximum penalty allowable by statute of one year imprisonment and a $1,000.00 fine for each count. It is from this judgment and sentence appellant has appealed.

On June 5, 1983, at approximately 8:30 in the morning, appellant was the driver and sole occupant of her automobile which was involved in a head-on collision with the decedents' automobile. She sustained multiple fractures and head injuries. The two occupants of the other vehicle were found dead at the scene. At trial, the State produced witnesses who testified to the erratic driving of appellant just prior to the accident. An eyewitness testified that the accident occurred on the left side of the highway in the decedents' traffic lane. The State also produced witnesses who stated appellant was combative and abusive at the scene, had slurred speech, and had an odor of alcohol on her breath. Appellant testified that, although she had been drinking the evening before, she was not under the influence of alcohol at the time of the accident.

For her first assignment of error, appellant contends that the introduction of the pictures of the decedents in the form of their driver's licenses served no probative purpose and prejudiced her.

The investigating officer testified he identified the victims from their driver's licenses found on their persons at the scene of the accident. Appellant made a timely objection to the admission of the licenses as evidence. In Oxendine v. State, 335 P.2d 940 (Okl.Cr.1958), the court stated that photographs of a homicide victim were inadmissible unless they were relevant to some material issue and would reasonably assist the jury in determining the defendant's guilt. Further, this relevancy should outweigh the danger that the jury would substitute emotion for reason. As noted in Newbury v. State, 695 P.2d 531 (Okl.Cr.1985), this Court does not encourage photographs of victims taken before their demise; and, even when relevant, cautions prosecutors to first seek alternative forms of proof that are less prejudicial. Accordingly, we find that there was no purpose served by allowing the jury to view the pictures of the deceased even in the innocuous form of driver's license photos. The identity of the decedents was not in issue. It is enough to know that two people were in the car and were found dead of injuries received in the collision of their automobile with appellant's. However, after a full review of the record, we do not find the viewing of the photos by the jury constitutes reversible error in and of itself in light of the other evidence presented.

The second and fourth assignments of error will be considered together as they address the same issue. Appellant contends that the State improperly admitted opinion evidence by failing to establish that the opinions had a sufficient factual basis; and in allowing that evidence, which invaded the province of the jury, Instruction No. 14 was improperly given.

The appellant properly cites 12 O.S.1981, § 2701 which allows a lay witness to render his opinion on a matter when it is rationally based on the facts and is helpful to a clear understanding of his testimony or the determination of a fact in issue. Appellant objects to the admission of the personal opinions of a police officer and a physician who testified that, based on their observations of appellant after the accident and the fact that appellant had an odor of alcohol about her person, they believed she was intoxicated.

The record reflects that both witnesses had occasion to spend enough time with appellant to form an opinion about her state of intoxication. Instruction No. 14 stated that proof of intoxication need not be made by expert testimony, but a witness may describe the facts and circumstances which led to his conclusion or simply state his opinion as to the fact of intoxication or soberness. The jury was further instructed they were not bound to accept the opinion but could give it the weight to which they felt it was entitled based on the underlying facts upon which it was predicated. Admission requirements for lay opinion evidence since the enactment of the Evidence Code in 1978 have been substantially liberalized. If an opinion rationally based on the perception of the lay witness is helpful to the jury, it is within the discretion of the trial judge to admit the testimony. See, McCormick on Evidence, § 11 at 27-29. (E. Cleary 3rd ed. 1984) Green v. State, 713 P.2d 1032, 1039 (Okl.Cr.1985). We do not feel the trial court abused its discretion in allowing the testimony; and accordingly, the jury instructions were appropriate.

The appellant next contends that she was prejudiced in the preparation of her defense by the failure of the court to strike portions of the information as requested until the day of trial and then further failing to grant a continuance once the motion to strike was granted. This Court is having a difficult time adducing either from the appellant's brief or from the trial transcript the rationale...