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Allen v. State4/2/2002
d with two counts of aggravated homicide by vehicle alternatively asserting that appellant violated Wyo. Stat. Ann. § 6-2-106(b)(i) and/or (b)(ii) regarding each count.
[ ] Mary Fink told Officer Schell that immediately prior to the collision, she looked down at her speedometer, took her foot off the accelerator to slow down, looked up and said "Oh, my God," and then collided with the Allen vehicle, which she did not see until the last possible second. Rick Dye, a Wyoming Highway Patrol officer since 1980, testified as an expert accident reconstructionist for the State. According to Officer Dye, the station wagon, traveling eastbound on Wyoming Boulevard, began to execute a left turn onto McKinley Street prematurely, turning into the westbound lane across a double-yellow line twenty to twenty-five feet prior to the actual intersection. The station wagon was traveling between one-half and twenty miles per hour and the Ford Tempo was traveling westbound between fifty and fifty-five miles per hour. The vehicles collided, without an evasive maneuver by the station wagon. Officer Schell observed "very short" skid marks from the Fink vehicle. Had the station wagon completed its turn, it would have entered the wrong lane of travel on McKinley Street.
[ ] Based on Officer Dye's time and distance calculations regarding each vehicle's visibility and reaction time, as well as his observations of the intersection itself, appellant should have seen the Fink vehicle and appellant had an "appreciably longer" opportunity to visualize the intersection than did Mary Fink. In Officer Dye's training and experience, impaired drivers commonly have perception problems, fail to maintain their lane of travel, and execute steering maneuvers similar to that performed by appellant. Officer Schell added that in his training and experience, impaired drivers experience difficulty with distraction and their ability to react is substantially slowed. Officer Dye testified that every driver he had encountered whose blood alcohol concentration exceeded .10% was "substantially" impaired. He ultimately opined that appellant did not react to, or observe, the "imminent hazard that the Fink vehicle presented" due to intoxication.
[ ] Appellant testified in his own defense. He testified that, after drinking at Frank Allen's home the previous night, finishing the last of his seven or eight beers at 1:00 a.m., he consumed three more beers between 1:35 p.m. and 2:30 p.m. on April 14, 1999, but did not otherwise consume alcohol that day. *fn1 According to his testimony, appellant approached the McKinley Street intersection, which was unfamiliar to him, slowed to enter the turning lane, looked to verify the street sign, was alerted by his brother's voice, and saw the Fink's vehicle "headed towards the passenger front" of appellant's vehicle at an angle. Appellant noticed the driver of the Fink vehicle looking down at the dash, then applied his brakes, causing the station wagon to pull strongly to the left without locking up the vehicle's tires. The Fink vehicle turned to the right, and the collision followed.
[ ] James R. Johnson testified as an expert accident reconstructionist for appellant. Based on Mr. Johnson's calculations, including skid-to-stop distance, the road conditions, the road's physical characteristics and visibility considerations, and the deficient condition of appellant's brakes (appellant apparently purchased the station wagon days prior to the collision), appellant would not have been able to stop the station wagon prior to the McKinley Street intersection. He added that the angle of the Fink vehicle's skid marks indicated that it crossed the centerline prior to the collision, and that the condition of appell
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