*1 February 5, 9, 1981, Argued September and submitted affirmed allowed, petition rehearing reversed and remanded 26, 1982 (292 388, January 1264) for new trial OREGON, STATE OF Respondent, v. STRINGER, RANFORD OWEN Petitioner. (No. 79-6-323, 27482) CA SC
Karen H. Assistant Attorney General, Salem, argued respondent. the cause for With her on the brief were Brown, James Attorney General, M. McCulloch, Jr., John R. General, Solicitor *2 and William F. Gary, Deputy Solicitor General, Salem. Callahan,
James Portland, M. filed a brief amicus curiae on behalf of Association of Defense Counsel. Shinn, Salem,
Michael R. filed a brief amicus curiae on of Oregon Lawyers behalf Trial Association. Denecke,
Before Justice, Chief Tongue, Lent, Linde, Tanzer, Peterson and Justices.
DENECKE, C. J.
Tongue Lent, JJ., and filed concurring opinions.
DENECKE, C. J. and defendant, struck driving pickup, while
The criminally convicted of which he was pedestrian killed a App affirmed. 49 Or Appeals Court of homicide. The negligent (1980). review consider granted We by a traffic accident reconstruc- proffered evidence whether into would not admit expert, which the trial court tion evidence, should have been received. high girls night, two school were
On a December They cows paved highway Canby. near saw driving home on road; they people nearby and in a house stopped on the told their when walking The were back to car girls about the cows. pickup which girl the deceased was struck question A crucial location up came from behind. Jacqueline, companion decedent when she was struck. decedent, side of they walking testified were on the left oncoming they pavement facing traffic when saw behind, Jacqueline lights pickup coming up from went directly gravel to the left shoulder and the decedent was over testimony is that right. to her The inference from her this also Jacqueline decedent’s location she was hit. testified when *3 going by them after it was pickup that when the went ahead of lane; lane, is, in the the but it went into the wrong left it stopped. lane before right officer came on the
Defendant told first he did know scene soon after accident that not where girl collision occurred. There was evidence that with beverages. been Defendant drinking defendant had alcoholic in the girls walking later told another officer that were of road. no tire marks middle There were observable girl’s body The was found the course of the vehicle. evidencing of and her were found edge highway off the left shoes edge paved from the left of the together a short distance highway. of the portion in the
The defendant called Mr. Talbott as he The witness testified area of accident reconstruction. professional a consulting engineer, registered engineer- and in both civil mechanical engineer qualified reconstruction for and since 1960 he had done accident ing, objection 2,000 over motor vehicle accidents. No was made to qualification expert. apparently as an The trial court generally qualified found him to be in this field and the supported finding. evidence such a
He first visited the scene of the death about nine months after the death. He made measurements and had diagrams prepared by available two of the accident scene police officers Schnoor and Brown. Schnoor’s included the position body of the and shoes. Talbott also had available photographs photographs day of the scene taken the after the accident, driving, of the vehicle defendant was taken any repairs before after the and measurements of the damaged portions of the vehicle. He was also informed where pieces glass small of broken were victim, found on the her height weight injuries. speed and her He assumed a of per 40-45 miles hour which was the defendant’s speed point. and the evidence on the He was also pickup passed Jacqueline something informed that as the had upper right hit her arm. With this information and from the place body supposedly “projected where the found, he probable flight path girl’s body backward the roadway.” of the computed body “departed He that the victim’s had angle degrees; from the collision at” an is, of 46.976 angle path from the center line of the road to the of the through the air. point
When the witness was asked where the impact objected lengthy argu- occurred, the state and after objection proof ment the was sustained. On an offer of witness testified that when the victim was struck she was nine right line; inches to the of the center that would have been proper lane. He further testified on the offer proof impossible that it was that the victim could have been paved portion highway off the left side of the or near edge paving left when she was struck. *4 opinion testimony
We have decided that the
of an
analyst”
“aircraft accident reconstruction
is admissible.
Myers
501,
v. Cessna Aircraft,
510,
275 Or
531
on
of the facts
personal knowledge
had no
from an automobile
of the location of debris
the significance
Moberly,
Carter v.
Or
263
have been admitted.
collision should
(1972).
193,
However, we have decided give could not knowledge of the facts with no facts of concerning physical on certain issues opinion v. impact. Thomas point collision such as the an automobile Etc., Beer, 168-169, 418, P2d 357 Dad’s Root 166, 356 225 or Martinson, 46, P2d Marshall v. (1960); 268 Or 518 P1d 418 Johnson, 1169, P2d and Urbanski v. (1974), 283 Or 581 1312 (1978). 948 any specific these cases we did not state deciding testimony by the admission of
principles governing
the accident.
personal knowledge
had no
We
experts who
evidence,
including
admissibility
of such
conclude that
evidence,
judged
accident
reconstruction
should
admissibility of the
deciding
that are used in
same rules
other issues.
experts
evidence of
on
expert’s opinion
must be
One of the rules is that
facts in evidence or
facts within
Farms,
v. Paeschke
expert. Harpole
personal knowledge
v.
Inc.,
Peterson
595,
(1974);
592,
P2d 1023
267 Or
518
Schlottman,
(1964); Furrer v.
484, 487,
their consideration. That information precisely by expert purporting the to mark the location used body where the victim’s was found. That location was important upon expert forming relied in element which the opinion time at the she as to the victim’s location was struck by car. initially Hart, witness, who found
One other Davis he the after the testified where found the victim place diagram received in marked that on a victim and testimony the not reveal that his or evidence. The record does diagram by Talbott. Without he marked was considered Mr. having diagram examination, available Officer Schnoor’s compare jury marked location the could not the officer’s jury of Hart. Therefore the with the victim’s they from which could deter- have available evidence did not expert’s opinion the location and mine whether Schnoor’s location were credible. Schnoor’s ‘ upon by relied the Material information which was expert forming in was not in evidence for consid- by jury, the therefore the trial court was correct in eration excluding proffered opinion expert the on the location the of the struck. of the victim at time she was Affirmed. specially concurring.
TONGUE, J., by majority I in concur the result reached the in this by case, but for the reasons stated this court in Marshall v. (1974), by Martinson, P2d the 268 Or 518 1312 as cited (291 531). majority held, expert at court in this Or In case this objection testimony by case, that the the witness properly ground sustained, but that: <¡** * uncjer judge the trial could facts of this case properly many varying find that there were so factors involved problem presented by question in the this that the of expert question indeed witness answer to that would * * ‘speculative,’ have at been 56. my opinion, diagram by if the even referred to majority had been in “speculative”
witness was too to be admissible. concurring. LENT, J., result, and I concur
I concur are here admissibility we with which evidence the kind of by judged used as are same rules should concerned admissibility respect evidence generally to with given what I with field. concur in a are of witnesses following express trying majority I believe statement: must be based expert’s opinion that an the rules is
“One of upon the facts within in evidence or upon the facts expert.” as written. the statement I do not concur with *6 expert’s which to the conclusion amounts An to exist for that he assumes certain facts he draws from actually predicate exist those facts Whether of his conclusion. That determination determine. trier of fact to is for the dependent upon those is evidence from which there whether by trier of fact. to exist facts could be found trier from which the in the record If there is evidence expert fact, the of a certain find the existence of fact could may that fact is existence of exist. If the assume that fact to by expressed validity necessary of the expert, exists, fact find that the trier of fact fails to but the opinion. disregard that fact should trier of personal thing a “fact” within such as There is no may expert. knowledge evidence within There be of the expert, personal knowledge he infers the from which by may the trier be found fact, his inference of a but existence of fact to be erroneous just to be case of the inferences as in the within from the evidence drawn
any other witness. may testify example, an he saw that a
For witness object lying ground and direction distance a certain on hydrant. away is evidence That a fire from certain object may in find that the trier of fact from which object was that the fact exists location, i.e., that the any number of hand, for the other On in that location. might not fact does that the find the trier of fact reasons example, might exist. For the trier of fact find that other evidence is more believable as to the or object location that the witness who testified to the location was not credible.
Now, may it be that the witness who testifies to the object example very location of the in the above is the witness being expert opinion who is asked for an object. testifying location of the If it be assumed that he is truthfully, it personal knowledge what is that is his is what perceived he believes he his That through senses. is not “fact”; necessarily it is evidence from which the existence may accept of “fact” can be established. The trier of fact or fact, location reject just any as the case other witness. expressing opinion, expert may assume to be any
in existence fact which could be found to exist the trier of fact from evidence in the record. If there is no source, any from the or other from which the existence found, a could given expert’s opinion may fact not be received, necessary predicate if a of that is the that very existence of fact. bar,
In the case at there no evidence in the record for the trier that the to establish basis of fact find location of the deceased’s was that which the witness therefore, predicated opinion; evidence could objection. not be received over