United States v. Harris

46 M.J. 221, 1997 CAAF LEXIS 1373, 1997 WL 348913
CourtCourt of Appeals for the Armed Forces
DecidedJune 24, 1997
DocketNo. 96-0710; Crim.App. No. 9401347
StatusPublished
Cited by43 cases

This text of 46 M.J. 221 (United States v. Harris) is published on Counsel Stack Legal Research, covering Court of Appeals for the Armed Forces primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Harris, 46 M.J. 221, 1997 CAAF LEXIS 1373, 1997 WL 348913 (Ark. 1997).

Opinion

Opinion of the Court

GIERKE, Judge:

A general court-martial composed of members sitting at Fort Jackson, South Carolina, convicted appellant, contrary to his'pleas, of drunk driving, reckless driving, involuntary manslaughter, and conduct unbecoming an officer and gentleman, in violation of Articles 111, 119, and 133, Uniform Code of Military Justice, 10 USC §§ 911, 919, and 933, respectively. The adjudged and approved sentence provides for a dismissal and confinement for 3 months. The Court of Criminal Appeals affirmed the findings and sentence in an unpublished opinion.

We granted review of the following issue:
WHETHER THE MILITARY JUDGE COMMITTED PLAIN ERROR AND DEPRIVED [APPELLANT] OF HIS RIGHT TO DUE PROCESS AND TO A FAIR TRIAL WHEN THE JUDGE ALLOWED A HIGHWAY PATROLMAN TO PRESENT HEARSAY EVIDENCE TO THE PANEL AS THE BASIS FOR HIS TESTIMONY AS AN EXPERT.

For the reasons set out below, we resolve the granted issue against appellant.

The charges arose from a collision involving appellant’s car and two motorcycles on the evening of March 13, 1994. At issue is the admissibility of the testimony of Lance Corporal (LCpl) Day, a member of the South Carolina Highway Patrol who investigated the incident and testified as an expert witness. Other witnesses were: Major (MAJ) Bogardus, the operator of one of the motorcycles who was injured in the collision; Sergeant First Class (SFC) Dickinson, the driver of a black Jeep Wrangler that was following the two motorcycles; Mr. Richardson, a passenger in SFC Dickinson’s Jeep; Mr. Martin, a local resident who saw the accident as he was driving his automobile toward the intersection and toward the motorcycles; and Mr. Morrow and Ms. Diamond, two local residents who heard but did not see the collision and who described the scene, the reactions of the parties, and the demeanor of appellant at the scene.

LCpl Day testified- last, after the other witnesses described the incident. MAJ Bo-gardus, SFC Dickinson, and Mr. Richardson all testified that Ms. Carver, the deceased victim, was riding the lead motorcycle, followed by MAJ Bogardus on his motorcycle. SFC Dickinson, Mr. Richardson, and Ms. Donna Starr were following the two motorcyclists in SFC Dickinson’s Jeep. They all testified that appellant’s white Jeep Cherokee ran a stop sign and hit Ms. Carver’s motorcycle. MAJ Bogardus hit the side of appellant’s Jeep Cherokee. After the collision, appellant was racing his engine and spinning his wheels, causing SFC Dickinson and Mr. Richardson to conclude that he was trying to leave the scene. Appellant’s Jeep Cherokee hit a cement wall and came to a stop in a private driveway. SFC Dickinson and Mr. [223]*223Richardson approached appellant’s vehicle and told him to shut off the engine and get out. When appellant did not respond, SFC Dickinson pulled him out of the vehicle.

Mr. Martin, a local resident, saw the accident while approaching the intersection from the opposite direction, driving toward the motorcycles. He testified that he saw the white Jeep run the stop sign and hit one of the motorcycles. He also observed the white Jeep “going back and forth” and the driver “spinning his wheels” after the accident.

LCpl Day testified that he received formal training in accident investigation as part of his initial training as a highway patrolman, as well as additional schooling in accident investigation. During his 9-and-a-half years as a highway patrolman, he investigated between 1500 and 2000 accidents. He was the lead investigator of approximately 50 fatal accidents and participated in investigations of about 100 fatal accidents.

LCpl Day testified that he smelled alcohol when he approached appellant, and he noticed that appellant’s speech was slurred. Day instructed appellant to perform two sobriety tests, reciting the alphabet and counting backwards, but appellant was unable to do them properly.

Based upon his examination of the physical evidence at the scene and his interviews with witnesses, LCpl Day concluded that appellant ran a stop sign and struck the deceased victim’s motorcycle, that there was an emotional exchange between appellant and persons involved in the accident, and that appellant backed up and was attempting to drive away when he struck a brick wall and came to a stop in a private driveway.

During his direct examination, LCpl Day was asked by trial counsel whether he was “able to determine the point at which Ms. Carver was struck by the accused’s jeep?” LCpl Day responded in the affirmative and began to state where the point of impact was when the military judge interjected and asked, “[W]ould you just tell us how you determined the point of impact?” LCpl Day responded that he determined the point of impact “through the investigation and talking to the witnesses and through the marks that lead up to the motorcycle came from the same area.” LCpl Day went on to explain that he determined the direction of appellant’s travel and the direction of travel and location of the two motorcycles from witness interviews. Defense counsel did not object to the military judge’s question.

When trial counsel asked LCpl Day to opine which vehicle caused a certain set of tire marks near the deceased victim, LCpl Day responded that he had “no problem saying [that] Major Harris’ vehicle caused it.” LCpl Day continued his answer by saying, “After talking to one of the witnesses or several of the witnesses, stated that Major —,” at which point defense counsel objected on the ground that what the witnesses said was hearsay. The military judge overruled the objection saying, “It’s the type of information that is reasonably relied upon by the experts in this area.” Defense counsel made no further objections.

During cross-examination, defense counsel used the pretrial statement of SFC Dickinson, one of the parties involved in the accident, to dispute LCpl Day’s conclusion that appellant was trying to flee the scene and to show that appellant moved his vehicle to avoid a hostile confrontation. Defense counsel also established that LCpl Day’s conclusions were based in part on what witnesses told him and asserted, “[I]f the witnesses are wrong, you’re wrong.”

LCpl Hughes, a member of the South Carolina Highway Patrol, testified that appellant consented to a breath test after being advised of his rights under the South Carolina Implied Consent Statute. LCpl Hughes ad- , ministered the test at about 10:00 p.m., about an hour after the collision. He determined that appellant’s blood-alcohol content was .18 percent (.18 grams of ethanol per 100 milliliters of blood). Based on his observation of appellant for approximately 30 minutes and the results of the breath test, LCpl Hughes concluded that appellant was intoxicated.

Appellant testified in his own defense. He testified that there was a stop sign at the intersection where the accident happened, but that he thought it was a four-way stop. He testified that he slowed down but did not [224]*224come to a complete stop. He testified that he saw a vehicle approaching from a distance but did not see the motorcycles until it was too late to avoid a collision. He swerved to the left, struck one of the motorcycles, and then hit a mailbox. He admitted consuming four beers and a pizza during a 4-hour period before the accident, but he denied that he was impaired.

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Cite This Page — Counsel Stack

Bluebook (online)
46 M.J. 221, 1997 CAAF LEXIS 1373, 1997 WL 348913, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-harris-armfor-1997.