Appeal from Marion County Common Pleas Court Trial Court No. 11-CR-084
Robert C. Nemo for Appellant
Brent W. Yager and David J. Stamolis for Appellee
(¶1} Defendant-appellant Harold Sayre ("Sayre") brings this appeal from the judgment of the Court of Common Pleas of Marion County finding him guilty of aggravated vehicular homicide and operating a vehicle while under the influence. For the reasons set forth below, the judgment is affirmed.
(¶2} On November 11, 2010, Sayre spent the day with his friend Jennifer McClure ("McClure"). At the end of the day, Sayre was taking McClure home on his motorcycle. Sayre lost control of the motorcycle and McClure was thrown from the motorcycle. When the paramedics arrived, Sayre was transported to the hospital by ambulance and eventually transported by helicopter to a hospital in Columbus for severe injuries. McClure unfortunately was pronounced dead at the scene. Sayre's blood was tested at the hospital seven hours later and the blood alcohol content was determined to be .064 at that time.
(¶3} On February 17, 2011, the Marion County Grand Jury indicted Sayre with one count of aggravated vehicular homicide in violation of R.C. 2903.06(A)(1)(a), a felony of the second degree, and one count of operating a vehicle under the influence in violation of R.C. 4511.19(A)(1)(a), a misdemeanor of the first degree. A jury trial was held from February 13 until February 16, 2012. The jury returned a verdict of guilty on both counts. On March 20, 2012, a sentencing hearing was held. The trial court sentenced Sayre to seven years in prison for the aggravated vehicular homicide and three days in jail for operating a vehicle under the influence. The sentences were ordered to be served concurrently. Sayre appeals from this judgment and raises the following assignments of error.
First Assignment of Error
The verdicts against [Sayre] were against the manifest weight of the evidence.
Second Assignment of Error
The trial court committed numerous evidentiary errors to the prejudice of [Sayre] and failed to instruct the jury on independent [intervening] cause of death.
Third Assignment of Error
[Sayre] was denied his constitutional right to a fair trial as a result of the trial court stating that [Sayre] was not answering questions and that [the State] would not get an answer from Appellant.
Fourth Assignment of Error
[Sayre] was denied his right to effective assistance of counsel as a result of his counsel's failure to object to numerous evidentiary matters.
The assignments of error will be addressed out of order in the interest of clarity.
(¶4} In the second assignment of error, Sayre claims that the trial court committed numerous evidentiary errors and failed to instruct the jury on independent, intervening causes of death. This assignment of error is based on four different alleged errors. The first alleged error is that the trial court allowed a witness to testify to the cause of the accident without a proper foundation. Evidence Rules 701 and 702 govern the use of opinion testimony.
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 (1) rationally based on the perception of the witness and (2) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue.
(A) The witness' testimony either relates to matters beyond the knowledge or experience possessed by lay persons or dispels a misconception common among lay persons;
(B) The witness is qualified as an expert by specialized knowledge, skill, experience, training, or education regarding the subject matter of the testimony;
(C) The witness' testimony is based on reliable scientific, technical or other specialized information. To the extent that the testimony reports the result of a procedure, test, or experiment, the testimony is reliable only if all of the following apply:
(1) The theory upon which the procedure, test, or experiment is based is objectively verifiable or is validly derived from widely accepted knowledge, facts, or principles;
(2) The design of the procedure, test, or experiment reliably implements the theory;
(3) The particular procedure, test, or experiment was conducted in a way that will yield an accurate result.
Evid.R. 702. This court has previously addressed the issue as to whether an officer who was not present at the accident and is not an expert witness can testify as to the cause of the accident and determined that the answer to that question is no. Petti v. Perna, 86 Ohio App.3d 508 (3d Dist. 1993). In Petti, this court held that in order for an officer to offer an opinion as a lay witness, the officer must meet the requirements of Evidence Rule 701. This means that the officer must be basing the testimony on his or her own perceptions. Id. at 513. To testify as an expert witness, the officer's qualification to testify as an expert must be present on the record. Id. Without meeting the requirements of Evidence Rules 701 or 702, an officer may not offer opinion testimony as to the cause of the accident. Id
(¶5} In this case Ohio State Trooper David G. Shockey ("Shockey") testified for the state. Shockey testified that he had received specialized training in crash investigation. Tr. 245. Shockey went to the scene the day after the accident to take daytime photos. Tr. 247. At the scene, Shockey observed a rut in the yard that ran in a straight line from the road to the fence line. Tr. 249. Shockey testified that he saw no indication at the scene that the motorcycle had traveled in any manner other than a straight line. Tr. 252. On cross-examination, Shockey admitted that he was not involved in the investigation in any manner other than taking the photographs and examining the tires of the motorcycle. Tr. 257. He also stated that he did not act as an accident reconstructionist on this case. Tr. 266. According to Shockey, nothing that he did contributed to determining the cause of the accident. Tr. 268. However, on redirect examination, Shockey testified as follows.
Q. Based on what you saw when you investigated the scene, your review of the report, is it clear that the person just – the driver, the Defendant, he just missed that curve and drove straight off the road?
Mr. Coulter: Objection in all due respect. He said he was not able to determine the cause of the accident now they're having him testify –
The Court: Overruled. He can answer.
Q. So he just drove straight off the road, is that correct?
A. From what I observed at the scene following the crash that's what my impression was.
Q. [On recross-examination] You can't say what caused him to go straight off the road, can you sir?
A. No, I cannot.
Tr. 269-270. Although the original question indicated that the Defendant "just missed that curve and drove straight off the road", the question to which Shockey provided an answer was whether the motorcycle went straight off the road. Shockey indicated that based on the ruts from the tire at the scene, that is what happened. On recross-examination, Shockey testified that he could not determine why the motorcycle went straight off the road. Thus, Shockey did not testify as to the cause of the accident. Instead, he only testified to what he determined from his own observations, which is in compliance with Evidence Rule 701.
(¶6} In addition, Sayre claims that the trial court erred by permitting a second witness, paramedic Matt Kokos ("Kokos") to testify as an expert without laying a foundation for his qualifications as an expert. Kokos testified as follows.
Q. Was the Defendant showing any signs of pain at that time?
A. Not severe pain. I mean when I touched it he did grimace, but he didn't yell out in pain.
Q. Would you expect somebody with that injury to show more signs of pain?
Mr. Coulter: Objection, speculation.
The Court: Overruled.
Q. Thank you. Did that strike you as strange or unusual in any way?
A. Given the situation, the odor of alcohol, most patients don't have as high of a pain – they don't notice pain as well when they've been drinking. It's just –
Mr. Coulter: Objection. I don't know if he's qualified –
The Court: I don't know if he's qualified for that. Let's get off of that.
Tr. 207-208. There is no question that the ideal procedure upon sustaining an objection on a question which has already been answered would be to strike the answer and/or instruct the jury to disregard the answer. That was not done in this case. At no time was the jury specifically told to disregard all answers to which an objection was sustained. However, Sayre did not request such an instruction. Additionally, Sayre does not point to how the alleged error was prejudicial. On cross-examination Kokos admitted that all of the symptoms he attributed to alcohol consumption could have been caused by shock due to what had occurred. Tr. 213. Without some evidence of prejudice, any error would be harmless.
(¶7} Sayre also objected to the testimony of paramedic Rocky Booth ("Booth"). Booth testified as follows.
Q. Did the Defendant seem to be in very much pain with this injury [the broken femur].
Mr. Coulter: Objection, speculation.
The Court: I'll let him answer if he can.
A. Not as much as I would have suspected.
Q. Did you smell any alcohol on him?
Q. Was there anything that you observed to make you think that he may be under the influence of alcohol or drugs?
Q. Can you recall what that was?
A. Just the fact that his pain wasn't as great as it typically would present –
Mr. Coulter: Again objection, speculation.
The Court: Overruled. Go ahead.
A. That's one of the more painful bones to break in the body. And they're quite painful. Usually the only type of relief we can give someone is to put them in a traction splint and pull the muscles apart which usually spasm that causes the pain. He referred to some pain in the leg, but it wasn't that much of a concern. And there was – there was the odor of alcohol.
Tr. 230. Although this testimony may have been partially subjective in its answer, Booth was testifying that based upon what he observed, Sayre did not appear to be in much pain. He then went further to testify that he smelled alcohol on Sayre and made the connection that the ingestion of alcohol was lessening Sayre's pain. All of this was based upon his independent observations, which is permitted pursuant to Evidence Rule 701.
(¶8} Sayre also objected to the testimony of Ohio State Trooper Aaron Williams ("Williams"). Williams testified as follows.
A. When I first made contact I was within – like a foot of him – two feet of him and there was some – the medical personnel was also standing around him. The subject – there was a very strong odor of an alcoholic beverage coming from his person, his eyes were red, bloodshot, and glassy; his speech was slurred, and one thing that was noticed, he wanted a cigarette, and with my experience what I've noticed is if I just make a traffic stop working midnight shift and I walk up to a car usually from later on if you kind of look back over that whole stop, if that person lights up a cigarette I can say from experience most of the time that person is under the influence of something.
Mr. Coulter: Objection, that's speculation. There's no foundation.
The Court: Overruled. Continue.
Q. Go ahead.
A. Is the reason that people want to light a cigarette immediately when they are impaired is they're trying to disguise the odor of whatever it is that they were under the influence of. So –
Mr. Coulter: Objection for the record. Again he's speculating, for the record, my objection.
The Court: Overruled. Continue.
A. Is when someone is – when I stop someone on midnight shift and I see a freshly lit cigarette from my experience the majority of the time I'm going to be smelling the odor of alcohol later and we'll go from that point on to see if they're impaired or not, but the lighting of a cigarette immediately is usually to mask the odor from my experience.
Q. Did he appear lethargic to you?
A. The way he was holding his cigarette in his hand, it was like his – he's just very limp, I guess if you're holding a cigarette, I mean I don't smoke, but I see people, and if you're holding anything, a pen and you're writing, you have some form of firmness to yourself, you know, just normal, like you're not just sitting there like limp. Like I can remember the cigarette was between his fingers and it's just loosely hanging there and his wrist is just limply – you know, he's got his elbow down resting on his elbow, and he's just holding it. Very limp like. If you're gonna smoke a cigarette you're gonna be a little more firm in your – just normal.
Tr. 404-06. Sayre claims that Williams was testifying as to his opinion. However, the trial court determined that Williams was testifying to what he observed and to what he has learned from his experience. This is not the same as testifying to his opinion. As a lay witness, Williams is permitted to testify to his own observations and what he learned from them. Thus, this testimony does not violate Evidence Rule 701.
(¶9} The second issue raised by Sayre is that the trial court did not allow him to explore the psychiatric status of one of the witnesses. On direct examination Amanda Clark ("Clark") testified that she observed the motorcycle just prior to the accident and then soon after it left the road. Tr. 355-57. On cross-examination, the witness stated that before giving the statement to the police, she spoke with her mother, her husband, and her psychiatrist. Tr. 360. Clark testified that she was under psychiatric care at the time of the accident. Tr. 361. However, when defense counsel asked the witness if she was still under psychiatric care, the trial court ordered the defense to move on. Tr. 361. Sayre claims that he should have been allowed to inquire into the psychiatric issues more pursuant to Evidence Rule 616(B).
(¶10} Evidence Rule 616(B) provides that a witness may be impeached by showing a "defect of capacity, ability, or opportunity to observe, remember, or relate" information. Evid.R. 616(B). "In appropriate cases psychiatric testimony can be used to impeach a witness whose ability to perceive, remember, or relate events is allegedly impaired by organic illness or a psychiatric disorder." State v. Wilson, 8 Ohio App.3d 216, 220 (8th Dist. 1982). The trial court has broad discretion as to the admission or exclusion of evidence. Columbus v. Taylor, 39 Ohio St.3d 162 (1988).
(¶11} Initially, this court notes that the question to which the State objected and the trial court sustained was whether Clark was under psychiatric care at the time of the trial. Counsel for Sayre did not argue the relevance of the issue to the trial court. Sayre was allowed to set forth that at the time of the incident, Clark was under psychiatric care. Sayre did not ask any questions which would clarify the reasons for the care or provide any basis to show that the continued care affected the ability of the witness to provide testimony. There was no proffer that would indicate how being under a psychiatrist's care affected the witness' ability to observe and testify to what she observed. Without some showing of prejudice, this court has no basis upon which to find that the trial court abused its discretion.
(¶12} The third issue raised by Sayre is the testimony given by Harry Plotnick ("Plotnick") as to the blood alcohol level at the time of the accident. Sayre claims that the testimony was not given based upon an opinion to a reasonable degree of scientific certainty. "Generally, 'an expert opinion is competent only if it is held to a reasonable degree of scientific certainty.'" State v. Elam, 3d Dist. Hancock No. 5-02-57, 2003-Ohio-1577, ¶ 7 (quoting State v. Benner, 40 Ohio St.3d 301 (1988), abrogated on other grounds by Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112). However, experts in criminal cases may testify in terms of possibilities rather than in terms of reasonable degree of scientific certainty or probabilities. State v. Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, ¶77. Once the jury understands the possibilities, it can then assign the weight to be given to the evidence. Id.
(¶13} A review of the record in this case indicates that at no time did Plotnick testify to a reasonable degree of scientific certainty. In addition, Plotnick did not testify in terms of possibility. Instead he testified that this was the result using generally accepted scientific principles to do the calculations.
Q. You started off with a .064, is that correct?
A. Yes, the headspace alcohol analysis test done by the Ohio State Highway Patrol Laboratory indicated that, and I believe it was 5:21 in the morning, that the blood alcohol level was .064 grams per 100 milliliters of blood.
Q. If you base that and take it with the last time the Defendant had a drink at approximately 9:30 based on his own report, the fact that he had a strong odor of alcohol, red glassy eyes, that he was a driver of a motorcycle which went left of center off a roadway, are you able to make any type of determination based on those things along with the 064?
A. Well, you're talking about –
Q. As far as an extrapolation goes?
A. Yeah, I can – I can extrapolate and at least give you a – what I believe to be a minimum blood alcohol level at the ...