State v. Lummus
950 P.2d 1190
Ariz. Ct. App.
1997
Check Treatment

*1 (a) not, right, upon of notice as Employee directly or as a matter shall hereof, Paragraph 20 to an indirectly: provided in injunction any competent court of (i) Request any present pa- future or any jurisdiction, restraining further viola- Employer or can- tients to curtail by Employee, said covenants tion of professional with the cel their affiliation partners corporation, employees, or Employer; injunctive agents. right to remedies Such (ii) separately, jointly, in Either or as- with in addition to and cumulative shall be establish, others, engage sociation with Employ- any rights other and remedies the in, an em- in, or become interested may pursuant Agreement to this er have owner, ployee, partner, or shareholder law, including, specifically regard with or to, otherwise, any or furnish information in subparagraph covenants set. forth to the manner, for, any any- in work or assist 17(a) above, recovery liquidated with, may competing one or who com- (40%) equal forty percent damages pete Employer practice in with the gross receipts received for medical ser- of medicine. any provided Employee, vices or (iii) identity any past, Disclose the associate, employee, partner, corpora- or present patients Em- or future of the Employee during tion the term of of the ployer any person, firm or other cor- Agreement period this and for a of three poration engaged practice in a medical (3) termination, years after the date of as, general the same similar to or reason, any Agreement. Em- this competition with the medical services ployee expressly acknowledges agrees provided by Employer. agreements the covenants and con- (iv) separately, jointly Either or in as- Paragraph minimum tained this 17 are provide sociation with others medical scope necessary and reasonable and are any per- care or medical assistance for protect legitimate interest of the persons patients or son who were or goodwill. Employer and its Employer during period that Em- ployee Employer. the hire of

(d) The restrictive covenants set forth during

herein shall continue the term of Agreement period this and for a of three (3) termination, years after the date of Arizona, Appellee, STATE of reason, any Agreement. of this The re- strictive covenants set forth herein shall be

binding upon Employee geo- in that LUMMUS, Appellant. Robert Gordon graphical encompassed area within the 96-0748. No. CA-CR (5) boundaries measured a five mile any radius of office maintained or utilized Arizona, Appeals Court by Employer at the time of execution of 1, Department Division C. Agreement any or at time thereafter. Oct. 1997. (e) Employee agrees that a viola- part any tion on his covenant set forth Denied Feb. 1998.* Review Paragraph in this 17 will cause such dam- age Employer irreparable to the as will be reason, Employee

and for that further entitled,

agrees Employer that the shall be *Martonc,J., grant petition this matter. voted to for review. nation' of J., McGregor, participate did not in the determi-

570 testify allowing a witness

We hold of one to ten the that on a scale is the same plus” for intoxication rated a “ten thing testifying that expression This was an very intoxicated. ultimate issue the case opinion on the supreme court type discouraged by our Court, Superior 139 v. (1983). prosecutor Both the apparently trial court believed and the Fuenning’s discouragement of the use of apply if the witness not such evidence does instead of degree of intoxication rates That is just saying the driver was drunk. then, Presumably the trial correct. not judge felt no need to exercise caution degree admitting To the the evidence. error, beyond a it was harmless this was reasonable doubt. Defendant, Lummus, was Robert driving

charged aggravated count of with one intoxicating liquor under the influence of prior sixty months of two convictions within influence, one count of driving under the for aggravated driving under the influence can- intoxicating liquor while his license was flight from a and one count of unlawful celed vehicle. pursuing law enforcement Defendant, citing Fuenning, moved to arresting testifying preclude the ultimate issue of the Defendant’s as to the motion, hearing At a on the intoxication. not prosecutor the State would said Fuen- rules laid down either violate the ultimate ning (discouraging on the issue) White, or State (impermissible (App.1987) was “un- testify that defendant for officer to influence”). der Woods, Attorney General Paul J. Grant ' trial, exchange occurred following At Counsel, McMurdie, Appeals Chief Criminal arresting prosecutor and the between the Golden, At- Section and Robert S. Assistant officer: General, Phoenix, torney Appellee. for Officer, on Q. based [PROSECUTOR] Trebesch, County Maricopa W. Pub- Dean night driving, your observations that Collins, —the Deputy Stephen R. lic Defender lights your response to the defendant’s Defender, Phoenix, Appellant. Public siren, stopped, the once he was his conduct van, your test, in the conduct HGN OPINION symptoms— signs and of his observations KLEINSCHMIDT, Judge. ten, being with one a scale of one on intoxicated, being where driving sober and ten This case involves a conviction you rate the defendant? intoxicating liquor. would under the influence of ently object. prom- I Calls that he could honor that [DEFENSE COUNSEL]: believed by avoiding asking the if De- improper opinion. ise for an words, In intoxicated. other fendant was THE COURT: Overruled that it seemed believe place I on a [OFFICER] would him ten where the Defendant ask the officer rated plus. rating to ten. The scale of one officer’s *3 jury guilty The found the of all Defendant essentially plus” the if the “ten was same as counts, pris- and the court to sentenced him officer that the was had testified Defendant on. extremely of intoxicated. The admonition Fuenning, supreme In the indicated court Fuenning be avoided in that cannot manner. that it was for a to testi- witness apparently pros- The trial court shared the fy symp- whether an displayed about accused rating degree that of intoxi- ecutor’s belief toms of intoxication and his about whether tantamount that testifying cation was not to appeared by alco- behavior to be influenced being the was Defendant intoxicated. That 605, hol. 139 at 136. The P.2d at so, presumably the trial court believed there stated, however, court that little to there was was no to exercise need the caution Fuen- gain by asking questions essentially that are ning advises. opinion guilt urged an of or It innocence. Id. analyze testimony must the the We “great to allowing trial courts use caution” context of all the evidence to if determine testimony on the ultimate issue of whether a prejudice arguably the improper opin 600, defendant was intoxicated. Id. at testimony requires ion reversal. See State P.2d at 131. (App. Bojorquez, 145 White, prosecutor In the a wit- had asked 1985). presented The State the if symptoms ness the defendant exhibited two observed officers who the Defendant’s during sobriety intoxication a field test. 155 symptoms impairment behavior and the 456-57, Ariz. at 747 P.2d at 617-18. After night he was arrested. One officer testified responded the witness that the defendant that the Defendant struck a the median with had, prosecutor rate, the asked the officer to side of when making his truck he was a turn. ten, on a of one scale the defendant’s The the officer observed Defendant’s truck symptoms overall of intoxication. Id. at jerk weave and and' drift out of lane its at symp- 618. The officer rated the repeatedly. The officer lights turned on his toms of intoxication as a six or seven. Id. respond, but the did not Defendant and when judge mistrial, The trial a denied motion for the officer turned on his siren the Defendant later, when prosecutor but the asked the sped away. stopped The officer the Defen explain further rating, officer to the motorcycle by pulling dant his in front judge objection question. an sustained to the truck when the Defendant’s Defendant response question Id. In to a whether the stopped light. pointed at a traffic The officer symptoms defendant exhibited intoxi- gun keep a at the Defendant and told him to cation, another officer stated he was “under raised; Defendant, however, his hands the influence.” Id. We that concluded lowering raising continued and his hands. that the statement defendant under the was truck, Once the was out of his Defendant impermissible. influence Id. We did not bloodshot, that he had wa observed opinion permis- offer an as to whether it was tery eyes strong that he had a and odor symp- sible for an officer to rate an accused’s alcohol on breath. The officer observed Instead, intoxication. toms of noted that we swaying rocking the Defendant and back and position the trial is in court the best to assess performed forth. The officer a horizontal relating the factors particular whether Defendant, gaze nystagmus test on the which questions regarding permis- intoxication are jerking is a measures test that sible, we found no and reversible error. Id. eyeball consump of which is the cause —one prosecutor quantities Since in the case be tion of of alcohol. The sufficient specifically fore all us mentioned that he would Defendant exhibited six cues which indi White, Fuenning appar- abnormality. not violate and he cate The officer an also stated testifying that Defen- uncooper- thing was hostile the same the Defendant not, intoxicated, does ative dant was such this and had threatened hurt him. case, require reversal. officer, operating The other who A is in order. To van, word about the dissent police testified that DUI the Defendant Fuenning suggest man- that we believe watery, eyes, speech had bloodshot slurred never, can dates that a witness whatever strong odor of alcohol on his breath. form, ultimate issue in- testify about attempted give what wé test, toxication is to overread have writ- a breath but the refused. Defendant All have said is ten. we he had officer stated that informed the extant, remains and its admonition cannot be would in auto- Defendant refusal result Fuenning ap- semantics. circumvented suspension year. matic for one license It pears to be a of confusion. seems source testified that had wa- *4 presumption against create a the to admis- tery eyes because worked in attics and he ultimate sion of evidence on the issue without allergies. explained he had He that because necessary discussing what is overcome the weaving jerking he was and because the Fuenning prescribe presumption. Nor does driving steering problems. truck had he was consequence admitting a the for evidence The implied Defendant that he not hear did Nonetheless, presumption. the teeth of the police hearing prob- he had siren because we do not that the admonition in believe explained that he speech lems. He had ignored to be is mere dicta at will. problems, apparently explanation as an for The convictions and sentences are af- speech. his He stated slurred that he had firmed. Nyquil allergies taken in the his earlier evening. speeding The Defendant denied SULT, J., concurs. officer,

away police from the and he stated steering that he could control the of his truck GERBER, Judge, concurring and higher speeds. better The at Defendant de- dissenting: drinking any nied alcohol. Although agree I conviction impeached The State Defendant’s testi- affirmed, disagree should be I with the con mony prior guilty pleas driving with two testimony clusion that in the officer’s about under the influence of alcohol. The State impermissible. toxication As was noted credibility by also attacked the Defendant’s 503, Bojorquez, this court in 145 Ariz. at 702 prior him impeaching burglary with a convic- 1348,Fuenning preclude P.2d at not did such tion for obtaining property and a conviction testimony merely urged caution in its but pretenses. false per prohibition blanket admission. No se Rather, The aunt Defendant’s testified that she police was admission of intended. attempted the truck to drive home after the testimony regarding a DUI defen and discretionary Defendant was arrested that the truck with the dant’s intoxication is right. 503, and also lurched left She testified that' Bojorquez, trial court. 145 Ariz. at 702 hearing Carreon, speech prob- 615, Defendant had 1348; P.2d at v. 151 Ariz. State 617, lems. 969, (App.1986). 729 P.2d 971 presented testimony The State The here contained no considerable evidence officer’s supporting opinion Although a guilt. conclusion ultimate on his testi- impaired. Despite mony was level of intoxication .rating Defendant’s ef- Lummus’ issue, behavior, explain important forts on factual that it most his some touched an improper. it example, supports guilt evidence was uncontradicted. not make For does any conclusory explanation opinion did not offer The not framed was statute, why swaying merely parroted he when DUI he was terms stand- Fuenning; ing. it followed explain disapproved Nor as was did failure of the symp- gaze nystagmus description of observed horizontal test. While testi- the officer’s solely fying and rested on the that on a scale of one to for intoxi- toms of intoxication ten experience observations. Under plus,” cation Defendant was a “ten officer’s circumstances, (1965) testimony 397, these about de- 406 P.2d 401-02 (approving lay opinion sanity); gener- re see gree of intoxication fell well im- short of an Udall, al., ally K. Morris et Law Evidence opinion guilt. ultimate See (3rd Ed.) (1991). majority’s § 21 conun- City 573, Heatley, Seattle v. Wash.App. justifying drum is the exclusion of trained (note 658, (1993) 3, citing 661-63 police testimony in the face of admis- law). recently Arizona As after lay testimony sion of untrained on the same Fuenning, Division 2 of our court acknowl- subject. Washington appeals court of edged police testimony about intoxi- exactly right: has the answer cation is not an ultimate issue and should be lay may express opinion “[I]f witness an Valley, admitted. Newell v. Town Oro another, regarding sobriety there is (1990). logic limiting admissibility no of an opinion [police] officer’s was also on intoxication when the “otherwise specially witness is recognize trained to admissible” within lay Rule 704. In Arizona persons.” characteristics intoxicated opportunity witnesses with the to observe a Seattle, City Heatley, 854 P.2d at 662. person may opine degree as to of intoxication as well as perceptible aspects about other

physical appearance. Esquivel See v. Nan

carrow, 209, 213, 104 Ariz. 450 P.2d

(1969) (“well-settled” lay opinion of in admissible);

toxication is Starkins v. Bate

man, 150 Ariz.

(App.1986)(approving lay opinion of emotion state);

al and mental Griffin, State v.