State v. Wilson II, 2005 Ohio 6201 (OH 11/17/2005)

Page 1

2005 Ohio 6201

State of Ohio Plaintiff-Appellee v. Larry Wilson II Defendant-Appellant.

No. 05-CA-5.

Court of Appeals of Ohio, Fifth District, Perry County.

Date of Judgment Entry: November 17, 2005.

Appeal from the Perry County Court of Common Pleas Case No. 04-CR-0034.

Affirmed in Part; Reversed in Part; Remanded for Re-Sentencing.

Joseph A. Flautt, Perry County Prosecutor, 111 North High Street, P. O. Box 569, New Lexington, OH 43764, for Plaintiff-Appellee.

Gerald T. Sunbury, 495 South High Street, Ste. 400, Columbus, OH 43215-5644, Richard A. Cline, 580 South High Street, Ste. 200, Columbus, OH 43215-5644, for Defendant-Appellant.

Before: John F. Boggins, P.J., John W. Wise, J., Julie A. Edwards, J.

OPINION

BOGGINS, P.J.

{¶1} This is an appeal from jury verdicts in Perry County, Ohio, convicting Appellant of two counts of aggravated vehicular homicide.

STATEMENT OF FACTS OF THE CASE

{¶2} Appellant, on February 28, 2004, was driving in a southerly direction on State Route 13 and his friend, Jason Baron, was operating another vehicle in the same direction. The State charged that both vehicles were traveling at an excessive rate of speed over the 55 M.P.H. posted limit.

{¶3} At the intersection of State Route 13 and Township Road 312, a Neon automobile on the Township road started to cross State Route 13 in a westerly direction. The Neon was required to stop at a stop sign at such intersection before proceeding. It was operated by Jena Snider with Henna Mumford as her passenger.

{¶4} In the southbound lane of State Route 13, the Neon was struck by both Appellant's vehicle and that of Jason Barron.

{¶5} Both Ms. Snider and Ms. Mumford were killed in the accident.

{¶6} The State alleged that the excessive speed was the cause of the accident and resulting deaths.

{¶7} In addition to Appellant, Jason Barron was also indicted on the same aggravated vehicular homicide charges.

{¶8} Appellant raises four Assignments of Error:

ASSIGNMENTS OF ERROR

{¶9} "1. THE COURT BELOW ERRED WHEN IT PERMITTED THE STATE TO INTRODUCE EVIDENCE FROM SENSING AND DIAGNOSTIC MODULES OVER

DEFENDANT'S OBJECTION AND WITHOUT SUFFICIENT FOUNDATION TO INDICATE THE RELIABILITY OF THE SCIENTIFIC TESTIMONY, IN VIOLATION OF RULE 702, OHIO RULES OF EVIDENCE. IN THE ALTERNATIVE, TRIAL COUNSEL WAS INEFFECTIVE FOR FAILURE TO OBTAIN THE SERVICES OF AN INDEPENDENT EXPERT TO CHALLENGE THE RELIABILITY OF THE SENSING AND DIAGNOSTIC MODULES AS IT RELATES TO SPEED OF THE VEHICLES. IN EITHER CASE, THE ADMISSION OF THE TESTIMONY DEPRIVED MR. WILSON OF A FAIR TRIAL AND DUE PROCESS OF LAW.

{¶10} "2. THE COURT BELOW ERRED WHEN IT PERMITTED EXPERT TESTIMONY AS TO OPPORTUNITY FOR THE DODGE NEON TO CLEAR THE INTERSECTION PRIOR TO THE ACCIDENT AS THAT TESTIMONY WAS NOT SHOWN TO BE RELIABLE, IN VIOLATION OF RULE 702, OHIO RULES OF EVIDENCE. IN THE ALTERNATIVE, DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT TO THIS TESTIMONY. IN EITHER CASE MR. WILSON WAS DEPRIVED OF A FAIR TRIAL AND DUE PROCESS OF LAW.

{¶11} "3. THE COURT BELOW ERRED WHEN IT IMPOSED MORE THAN THE MINIMUM SENTENCE AND CONSECUTIVE SENTENCES IN VIOLATION OF R.C. §§ 2929.14(b), 2929.14(E)(4), and 2929.19(B), BLAKELY V. WASHINGTON, (2004), ___ U.S. ___, 124 S.Ct. 2531, AND IN VIOLATION OF THE SIXTH AMENDMENT OF THE UNITED STATES CONSTITUTION.

{¶12} "4. THE COURT BELOW ERRED WHEN IT FAILED TO PERSONALLY ADDRESS MR. WILSON AT SENTENCING AND AFFORD HIM THE OPPORTUNITY TO MAKE A STATEMENT TO THE COURT PRIOR TO SENTENCING."

I.

{¶13} The First Assignment challenges the introduction of evidence.

{¶14} The admission or exclusion of relevant evidence rests within the sound discretion of the trial court and that court's ruling as to such matters will not be reversed absent an abuse of discretion. See: Krischbaum v. Dillon (1991), 58 Ohio St.3d 58, 66; Rigby v. Lake Cty. (1991), 58 Ohio St.3d 269, 271. In order to find an abuse of discretion, we must determine the trial court's decision was unreasonable, arbitrary or unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore (1983), 5 Ohio St.3d.

{¶15} Appellant asserts that the admission of the scientific evidence violated Evidence Rule 702.

{¶16} Such Rule provides:

{¶17} "A witness may testify as an expert if all of the following apply:

{¶18} "(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;

{¶19} "(B) The witness is qualified as an expert by specialized knowledge, skill, experience, training, or education regarding the subject matter of the testimony;

{¶20} "(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:

{¶21} "(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;

{¶22} "(2) The design of the procedure, test, or experiment reliably implements the theory;

{¶23} "(3) The particular procedure, test, or experiment was conducted in a way that will yield an accurate result."

{¶24} This Court discussed admission of scientific evidence in Abon Ltd v. Transcontinental Insurance Co., Richland App. No. 2004-CA-0029, 2005-Ohio-3052:

{¶25} "An extremely thorough and well researched analysis on the admissibility of scientific evidence in Ohio was conducted by the Fourth District Court of Appeals in Valentine v. Valentine (2001), 158 Ohio App.3d 615, 2004-Ohio-4521, 821 N.E.2d 580, appeal allowed 104 Ohio St.3d 1438, 2004-Ohio-7033, 819 N.E.2d 1122. In Valentine, the court noted: `[i]n general, courts should admit expert testimony whenever it is relevant and satisfies Evid.R. 702. State v. Nemeth (1998), 82 Ohio St.3d 202, 207, 694 N.E.2d 1332; see, also, State v. Williams (1983), 4 Ohio St.3d 53, 58, 4 OBR 144, 446 N.E.2d 444. Thus, the trial judge must perform a `gatekeeping' role to ensure that expert testimony is sufficiently (a) relevant and (b) reliable to justify its submission to the trier of fact. See Kumho Tire, 526 U.S. at 152, 119 S.Ct. 1167, 143 L.Ed.2d 238; Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993), 509 U.S. 579, 589, 113 S.Ct. 2786, 125 L.Ed.2d 469; Nemeth, 82 Ohio St.3d at 211, 694 N.E.2d 1332; Douglass, 153 Ohio App.3d 350, 2003-Ohio-4006, 794 N.E.2d 107, at ¶ 32 {¶26} "In performing its gatekeeping function, the trial court's starting point should be Evid.R. 702, which provides that a witness may testify as an expert if all of the following apply: `(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.'

{¶27} "**** The court made it clear in Kumho Tire Co. that the reliability analysis adopted in Daubert for scientific experts also applied to experts with other types of technical or specialized knowledge. But it is critical to realize that the analysis of reliability is flexible and its indicators may vary from discipline to discipline. Daubert, 509 U.S. at 593, 113 S.Ct. 2786, 125 L.Ed.2d 469; see, also, Moore v. Ashland Chem., Inc. (C.A.5 1997), 126 F.3d 679, at 686-688. Thus, the court should proceed in a two-step process that first identifies the indicators of reliability that are appropriate for the discipline involved and then applies them....

{¶28} "In order to determine reliability, a court must assess whether the reasoning or methodology underlying the testimony is valid. Miller, 80 Ohio St.3d at 611, 687 N.E.2d 735, citing Daubert, 509 U.S. at 592-593, 113 S.Ct. 2786, 125 L.Ed.2d 469. Thus, an expert may not base an opinion upon `subjective belief or unsupported speculation.' Daubert, 509 U.S. at 590, 113 S.Ct. 2786, 125 L.Ed.2d 469; see, also, State v. Hurst (Mar. 7, 2000), Franklin App. No. 98AP-1549, 2000 WL 249110. Instead, the expert's opinion must be based on methods and procedures that meet the level of intellectual rigor demanded by the relevant discipline. See In re: Paoli (C.A.3, 1994), 35 F.3d 717, 742, citing Daubert, 509 U.S. at 590, 113 S.Ct. 2786, 125 L.Ed.2d 469. The `[p]roposed testimony must be supported by appropriate validation-i.e., `good grounds,' based on what is known.' Daubert, 509 U.S. at 590, 113 S.Ct. 2786, 125 L.Ed.2d 469. And `where such testimony's factual basis, data, principles, methods, or their application are called sufficiently into question, * * * the trial judge must determine whether the testimony has a `reliable basis in the knowledge and experience of [the relevant] discipline.' 'Kumho, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238, quoting Daubert, 509 U.S. at 592, 113 S.Ct. 2786, 125 L.Ed.2d 469; see, also, Daniel J. Capra, The Daubert Puzzle (1998) 32 Ga.L.Rev. 699, 705 ('In deciding the question of admissibility, trial judges must consider the degree to which the accuracy of scientific information has been established. The less certain the scientific community is about information, the less willing courts...