State v. Scott
2012-186
Supreme Court of Vermont
October 18, 2013
2013 VT 103
Robert A. Mello, J.
May Term, 2013
2013 VT 103
[Filed 18-Oct-2013]
NOTICE: This opinion is subject to motions for reargument under
James A. Hughes, Franklin County State‘s Attorney, St. Albans, for Plaintiff-Appellee.
Matthew F. Valerio, Defender General, Anna Saxman, Deputy Defender General, and Thomas Tarnow, Legal Intern, Montpelier, for Defendant-Appellant.
PRESENT: Reiber, C.J., Dooley, Skoglund, Burgess and Robinson, JJ.
¶ 1. SKOGLUND, J. Defendant appeals his jury conviction for negligent operation of a motor vehicle and the resulting sentence. He asserts that the trial court impermissibly allowed the State‘s crash reconstruction expert to testify about defendant‘s speed at the time of the collision. Defendant also contends that, at sentencing, the trial court erred in considering the death that resulted from the accident as a factor in sentencing. We affirm defendant‘s conviction and sentence.
¶ 2. The record reveals the following facts. While driving several colleagues from work in his pick-up truck on Lake Road in St. Albans, defendant recognized a coworker traveling up ahead. As a joke, defendant passed the coworker‘s vehicle on the left, crossing a double-yellow line. Defendant‘s passing speed is not clear from the record, but by all accounts it exceeded the posted 40 miles per hour limit. Defendant completed the pass and returned to the right lane. Some evidence suggests he began to decelerate as his truck neared the approaching intersection with Kellogg Road.
¶ 3. Meanwhile, the decedent driver, who was travelling south on Kellogg Road with his mother as a passenger, had reached the intersection of Lake and Kellogg Roads. The decedent turned left onto Lake Road either as defendant was passing the coworker‘s vehicle or immediately afterwards. About three seconds after defendant returned to the right lane, defendant‘s truck collided with the decedent‘s car. The decedent‘s car spun 180 degrees, stopping on Lake Road near the intersection. Defendant‘s truck slid, bounced, or rolled off the road through a barbed wire fence and came to rest in a farmer‘s field. The decedent died from injuries sustained during the crash; defendant suffered a broken leg.
¶ 4. A captain of the Franklin County Sheriff‘s Department, certified as an accident reconstructionist by the Institute of Police Technology and Management, visited the scene, reviewed evidence gathered by the responding law enforcement officials and performed on-site testing. As part of his process, he pulled a drag sled—a weighted sled with attached scales—over the road and grass surfaces where the vehicles had traveled. He used a mathematical formula to determine the “drag factor,” or the amount of friction existing between a moving vehicle and the ground, generated by these surfaces. He incorporated the drag factors, estimated vehicle weights, post-crash travel distances, and braking estimates into other formulas to calculate the momentum required to move the vehicles from the point of impact over those surfaces to their final resting positions. Working backward from these calculations, and accounting for the energy absorbed by the crash, the officer concluded that defendant had been traveling 61 miles per hour when his truck struck the decedent‘s car.
¶ 5. Defendant was charged with grossly negligent operation of a motor vehicle, death resulting, pursuant to
¶ 6. Before sentencing, defendant asked the court to determine that, as a matter of law, the decedent‘s family members could not be “victims” entitled to speak at the sentencing hearing. Defendant argued that because his conviction for negligent operation did not contain any requirement of injury or harm, the decedent could not have been injured as a “direct result” of his negligence and so neither the decedent nor his family members could be “victims” for sentencing purposes. The trial court indicated that it would decide at the sentencing hearing whether to make a finding as to causation, and consequently, whether the decedent‘s family members would be entitled to testify.
¶ 7. At the sentencing hearing, the court found that defendant was travelling between 50 and 55 miles per hour on impact, rejecting both the State‘s expert testimony offering a speed of 61 miles per hour and defendant‘s assertion of 45 to 50 miles per hour. Noting that the parties had stipulated that the accident caused the decedent‘s death, the court also found that “defendant‘s negligence was in fact a direct and substantial cause of the accident and, therefore, a proximate cause,”1 and permitted the decedent‘s mother to speak as a “victim” of defendant‘s crime. Defendant spoke on his own behalf. The court sentenced defendant to a prison term of 30 days to one year, with 30 days to serve and a three-year term of probation. This appeal followed.
I.
¶ 8. Defendant first contends that the trial court erred in denying his motion in limine and permitting the State‘s crash-reconstruction expert to testify about defendant‘s speed at the time of the collision. Specifically, defendant claims that by using a drag sled on grass to calculate drag factor and assuming that defendant‘s tires were locked and fully inflated, the State‘s expert applied insufficient facts to an unreliable scientific method. We find no error.
¶ 9.
¶ 10. Because defendant does not dispute the relevancy of the State‘s expert testimony, we address only its reliability. Reliable expert testimony is “sufficiently rooted in scientific knowledge,” that is, grounded in scientific methods and procedures rather than mere “subjective belief or unsupported speculation.” State v. Streich, 163 Vt. 331, 343, 658 A.2d 38, 47 (1995). In assessing whether an expert‘s assertion is reliable, a court may be guided by the following factors: (1) whether the applicable theory or technique can be tested; (2) whether it has been subjected to peer review and publication; (3) its known or potential error rate; and (4) whether it has been generally accepted by the scientific community. Id. (citing Daubert, 509 U.S. at 593-97). These factors are not exhaustive, and a trial court has “broad discretion to determine, on a case-by-case basis, whether some or any of the factors are relevant in evaluating the reliability of expert evidence” before it. Daewoo, 2008 VT 14, ¶ 8; see also Daubert, 509 U.S. at 589 (rejecting the “general acceptance” test, once the “exclusive test for admitting expert scientific testimony,” as incompatible with the more liberal parameters of
¶ 11. We review the trial court‘s decision to admit expert testimony for abuse of discretion. Daewoo, 2008 VT 14, ¶ 9. Our deferential posture, however, does not preclude this Court from “engag[ing] in a substantial and thorough analysis of the trial court‘s decision and order to ensure that the judge‘s decision was in accordance with Daubert and our applicable precedents.” State v. Burgess, 2010 VT 64, ¶ 11, 188 Vt. 235, 5 A.3d 911 (quotation omitted).
¶ 12. This Court has emphasized in prior cases that ”Daubert presents an admissibility standard only.” Id. ¶ 12 (quotation omitted). In fact, we adopted Daubert specifically to promote more liberal admission of expert evidence. Id. (citing State v. Tester, 2009 VT 3, ¶ 18, 185 Vt. 241, 968 A.2d 895); see also Daewoo, 2008 VT 14, ¶ 9 (noting this Court‘s intent to “broaden[] the types of expert opinion evidence that could be considered by the jury at trial“). The central purpose of judicial gatekeeping under
¶ 13. Within the confines of
¶ 14. We acknowledge that other experts in the field, who generally allow that a drag sled can precisely determine drag factor over dry, paved surfaces, find its relative accuracy on other types of surfaces to be lacking.2 This alone, however, does not transform the latter uses into misleading “junk science” to be categorically excluded under
¶ 15. We also disagree with defendant‘s assertion that the State‘s expert lacked sufficient data to reliably implement his accident reconstruction techniques. It is true that “data inputs are appropriately within the purview of Daubert and
¶ 16. Defendant‘s expert testified, in contrast, that scientific tests have shown “a substantial difference in drag factors on the grass surface” as compared to pavement. He declared the State‘s expert‘s estimation of the drag factor of the grass was scientifically invalid because there was no evidence to support the assumption that the truck‘s wheels were locked “through the entire process of this collision.”
¶ 17. In this way, the estimates and assumptions of the State‘s expert were both rationalized and challenged, exhibiting the give-and-take of the adversarial process rather than proof of unsupported speculation to be screened from the jury. As the trial court concluded, any concerns about the estimates or the inferences made by the State‘s expert go to the weight to be granted the proffered evidence, not to its admissibility. See, e.g., Burgess, 2010 VT 64, ¶¶ 13, 15 (finding the court‘s concern that the expert, who failed to consider multiple factors critical to an analysis of defendant‘s breathalyzer test, lacked sufficient information to make an accurate analysis was valid but went to the evidence‘s weight, not its admissibility). The court was therefore within its discretion to permit the State‘s expert to testify before the jury and to allow the defense to discredit the expert‘s speed calculations through cross-examination and the offering of the testimony of its own expert and lay witnesses.
II.
¶ 18. Defendant next contends that the sentencing court impermissibly determined facts and considered victim impact testimony not properly before it. Vermont law entitles a victim of a listed crime to speak at any sentencing proceedings concerning the defendant‘s conviction.
¶ 19. At the sentencing hearing, the State argued that “defendant‘s criminal action in operating in a negligent manner and the speed and the momentum he carried through from initiating that negligence, making the pass on the double-yellow line . . . still speeding through the warning area before the intersection . . . was the major cause of the collision.” The court agreed and found by a preponderance of the evidence that defendant‘s negligence was a proximate cause of the decedent‘s death and that the decedent was a “victim” injured as a direct result of defendant‘s crime. The court considered these findings, the testimony of the decedent‘s mother and defendant, statistics on sentencing for similar convictions, and other factors including defendant‘s age, employment, sincere remorse, and lack of criminal record, and sentenced defendant to 30 days to serve and a three-year term of probation with special conditions.3
¶ 20.
¶ 21. We conclude that the sentencing court was well within its discretion when it found that defendant‘s negligence was a proximate cause of the accident and considered the facts of the fatality resulting from the crash, including its impact on the decedent‘s mother, at sentencing. The jury‘s decision to acquit defendant of grossly negligent operation and convict him of negligent operation did not, as a matter of law, resolve the issue of causation, and therefore could not preclude the court from doing so. At the sentencing hearing, the court explicitly stated that, while it did not view defendant as entirely responsible for the accident, a reasonable person could have foreseen that another driver might enter the low-visibility intersection when it was dangerous to do so, so that defendant‘s criminally negligent choice to speed through the intersection was a direct and substantial cause of the accident, notwithstanding the decedent‘s own role in the collision. These findings are properly based on the facts and circumstances surrounding the accident. See
¶ 22. The fact that causation is not an essential element of negligent operation does not mean evidence showing that defendant‘s negligence substantially caused a death is irrelevant or improperly considered under a preponderance of evidence standard at sentencing. See State v. Thompson, 150 Vt. 640, 646, 556 A.2d 95, 99 (1989) (finding that sentencing court properly considered use of force relevant to defendant‘s propensities and circumstances under which he committed the crime, even though evidence of force had not been required for his conviction, and rejecting claim that due process required sentencing court to consider only facts proved beyond a reasonable doubt). The court did not exceed its broad discretion in considering the reasons for the accident and the relative contributions of defendant and the decedent to the tragedy that ensued while trying to understand defendant‘s character and the circumstances of the offense. These factors, all “relevant to the determination of an appropriate sentence,” State v. Bushway, 146 Vt. 405, 407, 505 A.2d 660, 661 (1985), were balanced by the court on the record and resulted in a sentence to serve well within sentencing guidelines. See
¶ 23. Defendant directs this Court to State v. Kenvin to support his contention that the trial court erred in allowing “victim” participation at sentencing. See 2011 VT 123, 191 Vt. 30, 38 A.3d 26. In Kenvin, a defendant was acquitted of grossly negligent operation of a motor vehicle, death resulting, and convicted of the lesser included offense of negligent operation. Id. ¶ 3. The trial court required the defendant to compensate the decedent‘s family under Vermont‘s restitution statute, finding a direct connection between the death resulting from the accident and the family‘s purported expenses. Id.; see also
¶ 24. Defendant‘s reliance on Kenvin is misplaced. Kenvin involved a challenge to victim restitution, a limited statutory entitlement as compared to the broader issue of determining a proper sentence. See id. ¶ 9 (holding that Vermont‘s restitution statute, which is “much narrower” than those of other jurisdictions, does not permit a decedent‘s family members to recover travel and storage expenses as “victims” of the criminal negligence that killed decedent (quotation omitted)); State v. Forant, 168 Vt. 217, 222, 719 A.2d 399, 402 (1998) (holding that the restitution statute is “narrowly drawn“); see also
¶ 25. Notwithstanding the identical statutory language defining “victim” for both sentencing and restitution purposes, the statute allowing a crime “victim” to testify at sentencing,
Affirmed.
Associate Justice