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Polk v. State4/30/2003
Repl. 1997). The State's theory of guilt focused on two factors: (1) that appellant was legally intoxicated at the time she was driving her vehicle and the accident occurred, and (2) that appellant was driving her vehicle at an excessive rate of speed.
Having established that appellant was legally intoxicated at the time of the accident, the State called Donham to testify that she also was traveling at eighty-one miles per hour when the accident occurred. Appellant objected to Donham's testimony about the speed of her vehicle on the grounds that he was not an accident reconstruction expert. The State then responded that it would offer Donham as an expert for purposes of speed calculation if defense counsel requested. Over defense counsel's comments that using a calculation to figure speed does not make a person an expert, but without formally ruling that Donham was an expert, the trial court allowed the officer to testify stating that Donham was giving an opinion about the speed of appellant's vehicle and that the officer could state that opinion and calculation. Thus, the record is not clear whether Donham was testifying as an expert witness with specialized knowledge in speed calculation or as a lay witness whose opinion was to be helpful in the determination of a fact in issue.
In Higgs v. Hodges, 16 Ark. App. 146, 697 S.W.2d 943 (1985), this court held that a state trooper who had investigated a car accident was qualified as an expert due to his training and experience to testify that Higgs had been driving too fast; he had observed the impact area, the debris, the position of the vehicles, and the general conditions. This court, nevertheless, held that the state trooper's testimony was inadmissible because the only basis for his conclusion that Higgs was speeding was the fact that she lost control of her car. Id. Thus, given the same facts, the jury could have arrived at a conclusion as to the speed just as well as the trooper could. Id.
Unlike in Higgs v. Hodges, Donham based his opinion of the speed of appellant's vehicle on the information, measurements, and numbers he personally collected at the scene of the accident and then used the computer program to calculate the exact rate of speed; thus, his testimony involved more than making a presumption that appellant was speeding. In Redman v. St. Louis Southwestern Ry., 316 Ark. 636, 873 S.W.2d 542 (1994), the supreme court held that under circumstances where the trial court twice sustained the objection that a state trooper was not an expert, then later allows the trooper to testify concerning the reaction time of motorists, it was not necessary that the trial court state formally that the witness was qualified as an expert. Accordingly, Donham's opinion as to the speed at which appellant's vehicle was traveling at the time of the accident would have been admissible as expert opinion testimony.
Neither party, however, argues that Donham was testifying as an expert. Rather both arguments rest on the premise that Donham was a lay witness. Nonetheless, even if Donham did not qualify as an expert, his testimony that appellant was traveling at eighty-one miles per hour when the accident occurred was admissible as lay testimony. Under Rule 701 of the Arkansas Rules of Evidence, a witness not testifying as an expert may testify in the form of opinions or inferences which are rationally based on the perception of the witness and which are helpful to the clear understanding of his testimony or determination of a fact issue. Bridges v. State, 327 Ark. 392, 938 S.W.2d 561 (1997). Rule 701 is not a rule against opinions, but a rule that conditionally favors them. Moore v. State, 323 Ark. 529, 915 S.W.2d 284 (1996). A trial cour
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