450 A.2d 857 | Conn. Super. Ct. | 1982
The defendant was convicted after a jury trial of negligent homicide with a motor vehicle, in violation of General Statutes
The factual situation may be summarized as follows: The defendant, who was sixteen years old, was operating a motor vehicle northbound on Pocono Road in Brookfield at about 4 p.m. on March 7, 1979. The occupants of the vehicle had attended a party and the defendant was driving the decedent home. The road was posted with speed limit signs of twenty-five miles per hour for northbound traffic, and the surface was generally dry, although there were some wet areas. After passing through one such wet area the vehicle crossed the center line, proceeded back into the northbound lane, left the traveled portion of the roadway and went onto the east shoulder where it skidded broadside and struck a utility pole. The decedent, who was seated in the middle of the rear seat, sustained serious injuries and was taken to the hospital where she died on March 9, 1979. The police conducted an extensive investigation and tests which revealed that the defendant had been driving unreasonably fast. Thereafter, the defendant was charged with negligent homicide with a motor vehicle.
Since the advent of motor vehicles, regulations involving travel upon public highways and the use of vehicles upon these highways have been upheld as a valid exercise of the state's police power; Silver v. Silver,
The defendant contends that
The fair warning principle has been developed in a long line of United States Supreme Court cases, as noted by our own Supreme Court in State v. Pickering,
Where the
Negligence has long been defined as "the failure to use that degree of care for the protection of another that the ordinarily reasonably careful and prudent man would use under like circumstances." Temple v. Gilbert,
As a final corollary to his void for vagueness argument, the defendant contends that
In enacting
As noted previously, the state in its bill of particulars alleged that it would prove the necessary element of negligence by showing a violation of
We disagree with the defendant's contention that he introduced evidence that would rebut the statutory presumption, since the exhibits he attempted to introduce for this purpose were marked for identification only. We conclude, therefore, that the court properly admitted the officer's testimony that the posted limit was twenty-five miles per hour. This *435
testimony was clearly relevant because it tended to establish a fact in issue; Federated Department Stores, Inc. v. Board of Tax Review,
The defendant also objected to the introduction of a sketch of the accident scene that was prepared by a detective with the assistance of other police officers. This evidence was offered merely as a record of the length of skid marks that were found, and not as to their scale or position. The defendant claims that this document was inadmissible because it constituted hearsay that did not come within the business record exception, that it included opinion testimony and that it was prepared for the purpose of litigation.
For a record to be admissible under the statute; General Statutes
Applying these standards to the present case leads us to conclude that the sketch was properly admitted.10 Documentary evidence such as maps *437
are admissible in the discretion of the court even though not drawn to scale nor portraying the locus with complete accuracy; State v. Piskorski,
We conclude that the court was correct in allowing the exhibit into evidence and in refusing the defendant's motion to strike it. Further, it properly charged the jury that the sketch could be used only for determining the length of the skidmarks.
The principles governing the admissibility of expert testimony were recently stated by our Supreme Court in State v. Wallace,
The defendant's final argument under this claim of error concerns the reliance by this expert on both the police report and on an out-of-court "experiment" in the preparation of the overlays.14 The defendant argues that the police report constituted inadmissible hearsay and thus provided an insufficient foundation for the witness' opinion regarding the vehicle's path. Although this reasoning has been followed by some courts, the accepted principle followed in Connecticut and other jurisdictions is that "an expert's testimony may be based on reports of others if the reports are those customarily relied on by such an expert in formulating an opinion." State v. Cosgrove,
Although Cosgrove involved a medical expert, its reasoning is equally applicable. to cases involving other types of experts. "If some of the expert's factual information is derived from sources fairly trustworthy though hearsay and he has as such the ability to co-ordinate and evaluate that information with all the other facts in his possession secured through personal observation, the trial court may in the exercise *439
of a sound discretion permit the expert's ultimate opinion to be considered by the jury." Warren v. Waterville Urban Renewal Authority,
Our conclusion that the court properly admitted this testimony is supported by the better reasoned authorities, which favor the admissibility of expert opinion that is partly derived from written sources. See, e.g., Jenkins v. United States,
The rule in Connecticut is that an expert may testify as to the speed of a motor vehicle based on skid marks and other physical factors. Thomas v. Commerford,
The defendant also claims the court erred by admitting evidence of the skid tests that the witness used in determining the coefficient of friction and calculating the vehicle's speed. Specifically, he argues that these tests would not result in a fair and accurate reproduction of the accident because the witness did not consider all the variables that would affect the results.
The admissibility of evidence of out-of-court experiments or tests rests in the sound discretion of the trial court and will not be interfered with on appeal absent proof that this discretion was abused. State v. Vennard,
A closely related claim involves the admissibility of hypothetical questions that were used to elicit the trooper's opinion as to whether the defendant's car caused the skid marks that were measured at the accident scene, as well as to elicit his testimony concerning the speed of the defendant's vehicle at the commencement of the skid. In arguing that the court erred in admitting these questions over his objection, the defendant contends that the questions were improper because they assumed as true the very facts in issue and certain facts that were not proved to be true.
In assessing the defendant's claim we are guided by the following standards: "The determination of the admissibility of a hypothetical question . . . is not to be made by the application of any rule of thumb. Goodrich Oil Burner Mfg. Co. v. Cooke,
Applying these standards to the detailed hypothetical questions that were asked concerning the skid marks and the estimated speed of the vehicle, we conclude that the court did not abuse its discretion in allowing these questions to be answered. The considerations that the defendant claimed rendered these questions improper, such as the effect of the damage to the vehicle, its travel over surfaces of varying coefficients of friction and the effect of locked wheel skid marks, could all have been raised by the defendant in his cross-examination of the witness "to test the skill, learning and accuracy of the expert or to ascertain the reasonableness or expose the unreasonableness of his opinion." Cecio Bros., Inc. v. Feldmann,
A number of standards exist which govern the review of a challenged jury charge. "A charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement . . . ." Amato v. Desenti,
The expert witness charge is challenged because of the court's alleged failure (1) to consider the effect of the experts' reliance on various trial exhibits in forming their opinions; (2) to delineate the specific subordinate facts that were assumed in the hypothetical questions; (3) to instruct that these subordinate facts must be proved.
We acknowledge that where the opinion testimony of an expert witness is based upon exhibits prepared by others and not upon firsthand knowledge, or is by way of answer to a hypothetical question premised upon an assumed state of facts, there is an increased danger that the jury will attach undue weight to the testimony. Nash v. Hunt,
The defendant also objected to the jury charge concerning the negligence of the minor criminal defendant and requested a charge stating that the defendant's minority was relevant to the issue of negligence per se. As noted previously, however, the defendant was properly held to an adult standard of care. General Statutes
The defendant also challenges the court's statutory negligence charge concerning the legal effect of the prima facie presumptions contained in General Statutes
Applying this test, we find that there was sufficient testimony for the jury to conclude that at the time of the accident the speed of the defendant's vehicle was approximately twice that of the posted speed limit.
There is no error.
In this opinion SHEA and BIELUCH, Js., concurred.