COURT OF APPEALS OF VIRGINIA

Present: Chie f Judge Felton, Judge s Elder and Beales Argued at Chesapeake, Virginia

LALITA YELDELL MEMORANDUM OPINION * BY v. Record No. 0699-05-2 CHIEF JUDGE WALTER S. FELTON, JR. AUGUST 8, 2006 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND Margaret P. Spencer, Judge Gary R. Hershner for appellant. Susan M. Harris, Assistant Attorn ey General (Rober t F. McDonnell, Attorney General; Susan L. Parrish , Assistant Attorney General, on brief), for appellee.
Lalita Yeldell (“appellant ”) appeals from her convictions fo llowing a jury tr ial, for felony driving under the influence of alco hol in violation of Code § 18.2- 266, two counts of involuntary manslaughter in violation of Co de § 18.2-36.1, and on e count of maiming while driving under the influence of alcohol in vi olation of Code § 18.2-5 1.4. She contends the trial court erred in: (1) allowing the Commonwealth’s accide nt reconstruction expert to give opinion testimony as to how the motor vehicle collision occu rred, and (2) prohibitin g defense counsel from cross-examining the Commonwealth’s accident reconstruction expert about witness statements the expert testified he had considered when forming his opi nions. For the reas ons that follow, we reverse appellant’s convictions and remand fo r a new trial if the Comm onwealth be so advised.

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - BACKGROUND The record reflects that shortly after 3:00 a.m. on April 11, 20 04, appellant’s Lexus automobile collided with a Mazda automobile in the nor thbound lanes of Intersta te 95 in the City of Richmond. Chantelle Haynes, the driver of the Mazda, and Tash anna Smallwood, Haynes’ front seat passenger, were pronounced dead at the scene. Adrian Wright-Bent, Haynes’ backseat passenger, suffered a broken femur, broken pelvic bon es, and fractures of most of her facial bones. Rescue workers extracted appellant from her vehicl e, which had come to rest on the jersey wall dividing the northbound and southbound lanes of In terstate 95. She was tr ansported to a hospital where she was in a coma for some three weeks followi ng the accident. Motion in Limine Prior to trial, ap pellant filed a motion in limine to “prohibit th e Commonwealth from presenting expert reconstruction evidence.” Spec ifically, appellant sought to exclude the expert opinions of Virginia State Trooper Anthony Puckett. Puckett, trai ned and experienced in accident reconstruction, investigated the scen e of the collision. He created a scaled diagram of the area based on measurements he made shortly after the collision, and prior to the vehicles being moved. He spent some thirty hours analyzing the evidence he obtained at the scene. At the hearing on the motion in limine , Puckett testified as to his observations at the collision scene, and opined as to how each vehicle r eached its final resting pl ace. He explained that in reaching that conclusion, he considered the following: “[t]he damage to each vehicle, markings on the roadway, paint transfers of th e vehicle, statements by the driv ers and statements by witnesses, fluid transfers, debris in the roadway . . . [and t]he measurements of the vehicles.” At the conclusion of the hearing, appella nt objected to the admission of Puckett’s opinions regarding how the collision occurred. He argued that Puckett’s opinions invaded the- 3 - province of the jury because they were within the common knowledge of a person of reasonable intelligence and relied, in part, on witness statements. The trial court took appellant’ s motion under advisement, stati ng, “[t]he Court will not allow an expert to inva de the province of the jury. The Court will not allow an e xpert to render an opinion that a lay witness can render.” However, the trial cour t stated that the accident reconstruction “expert will be allowed to rend er an expert opinion based upon scientific analysis.” Trial At the beginning of ap pellant’s trial, the tr ial court reiterated that Puckett would not be permitted to invade the pr ovince of the jury in hi s testimony. Th e trial court, ho wever, accepted Puckett as an expert in the field of accident reconstructio n over appellant’s objection. The Commonwealth began its opening argument by playing a 911 tape for the jury. It argued, presumably from what was on the tape, that the evidence would prove that “[t]he car going the wrong way was driven by the defendant, Lalita Yeldell.” Ine xplicably the re cord does not contain the 911 tape, or any transcri pt of what the 911 tape contained. During the Commonwealth’s cas e-in-chief, Puckett testified that four vehicles were involved in the colli sion -- appellant’s green Lexus, Haynes ’ blue Mazda, a red Buick, and a red Honda. He described th e collision scene for the ju ry, referring to the di agram he had created. Based on his investigation, Pucke tt opined that appellant’s Lexu s “struck” the victims’ Mazda “head-on,” causing the Mazda to rotate counterclo ckwise into the center lane, where it was struck a second time by the red Buick. He testified that the red Honda, in turn, subsequently struck the Buick. Puckett concluded, fro m the location of the Mazda’s bumper cover he found on the highway, that the Mazda was traveling nort hbound when it collid ed with the Lexus.- 4 - On cross-examination, appellant’s counsel qu estioned Puckett regard ing witness statements in conflict with his conclusi on regarding how the collision oc curred. The following colloquy occurred: [APPELLANT’S COUNSEL]: Now, I have been supp lied with the statements from every one of the people to the accident. * * * * * * * [APPELLANT’S COUNSEL]: And I put them all in this nice notebook. Could you go through th ere and see if anyone testified they observed Ms. Yeldell’s vehi cle going the wrong way on 95? * * * * * * * [TROOPER PUCKETT]: I had not se en any statements that said that. [APPELLANT’S COUNSEL]: And, in fact, some of the statements indicate Ms. Yeldell’s vehicle was traveling in the correct direction? [THE COMMONWEALTH] : Objection. THE COURT: Sustained; hearsay. [APPELLANT’S COUNSEL]: Judge, this witne ss has testified that he relied on part of witnesses’ st atements, and it is perfectly proper for me to ask him about those witnesses’ statements. THE COURT: The obje ction is sustained. Let’s move on. [APPELLANT’S COUNSEL]: At the appropriate time, I would like to proffer what thos e statements were. 1 THE COURT: The objection is sustained. Move on. At the conclusion of the Commonwealth’s case-in-chief, appellant moved to strike Puckett’s testimony on the basis that his opinions relied in pa rt upon witnesses’ stat ements and that she was not allowed to cross-examin e Puckett as to the reliab ility of those statements. After the trial court

1 The notebook containing the purported witne ss statements was not made part of the record on appeal.- 5 - denied appellant’s motion to strike, appellant assert ed that Puckett’s testimony should also be struck because it “invades the province of the jury.” Following the presentatio n of all the evidence, appellant renewed her motion to strike the evidence “for the reasons previously stated.” The trial court denied her motion. The jury found appellant gu ilty of all four charges. ANALYSIS I. The Commonwealth asserts, purs uant to Rule 5A:18, that appellant is barred on appeal from raising the issue that Puckett’s testimony describing how the collision occurred invaded the province of the jury. Sp ecifically, it argues that “defense counse l made no objection [at trial] that the expert’s testimony wa s inadmissible because it invaded the province of the jury[, rather] . . . [t]he only objection to Trooper Pucket t’s testimony at trial was that it was not scientifically based.” It contends that appellant’s motion to strike Puckett’s testimony as in vading the province of the jury was made after the trial court had ruled on her motion to strike Puckett’s testimony as not supported by scientific analysis, and did not save the issue for appeal because it “did not allow the trial court to consider the argument.” “Rule 5A:18 requires an ‘objection [be] stated together with the grounds therefor at the time of the ruling, except for g ood cause shown or to enable the Court of Appeals to attain the ends of justice.’” Edwa rds v. Commonwealth , 41 Va. App. 752, 760, 589 S.E.2d 444, 448 (2003) (quoting Rule 5A:18). “The primary function of Rule 5A:18 is to al ert the trial judge to po ssible error so that the judge may consider the issue intelligently and take any corrective actions necessary to avoid unnecessary appeals, reve rsals and mistrials.” Martin v. Commonwealth , 13 Va. App. 524, 530, 414 S.E.2d 401, 404 (1992). Thus, “[u]nder this rule, a specific argument must be made to the trial court at the appropriate time, or the allegation of error will not be considered on appeal.” Edwards ,- 6 - 41 Va. App. at 760, 589 S.E.2d at 448 (citing Moun ce v. Commonwealth , 4 Va. App. 433, 435, 357 S.E.2d 742, 744 (1987)). The record reflects appellant presented the trial court with an oppo rtunity to consider whether Puckett’s opinion testimony invaded th e province of the jury . Appellant’s motion in limine clearly sought to exclude Puckett’s te stimony on the gr ounds that it invaded the province of the jury. After concluding voir dire of Puckett, appellant again objected to his opinion testimony, arguing that “the opinions [are] base[d] . . . in part on statements from witn esses and . . . the law of physics,” and “based on the pr oblem of the jury . . . [i t] is not admissible for Virginia law.” Moreover, appellant made a “continuing objection to the opini ons” during Puckett’s testimony. We therefore conclude appellant preserved the trial court’s ruling on the “invas ion of the jury’s province” for appellate review. II. Appellant contends the trial court erred in admitting Puckett’s opin ion testimony regarding how the fatal collision occurred. She argues his testimony invaded the province of the jury, that Puckett’s ultimate conclusions were not scientifically based, and th at Puckett’s opinions partially relied on the credibility of witness statements. “The admission of expert testimony is commi tted to the sound discre tion of the trial judge, and we will reverse a trial court’s decision only where th at court has abused it s discretion.” Brown v. Corbin , 244 Va. 528, 5 31, 423 S.E.2d 176, 178 (1992). “Nonetheless, expert testimony is inadmissible on any subject on which th e ordinary lay person of av erage intelligence is equally capable of reaching his or her own conclusion.” Id. (citing Lopez v. Dobson , 240 Va. 421, 423, 397 S.E.2d 863, 865 (1990)). Applying this standa rd, the Supreme Court has repeatedly held in both civil and criminal cases that “acci dent reconstruction ex pert testimony is rarely admissible . . . because it invades the province of the jury.” Id. (citing Venable v. Stockner , 200 Va. 900, 904-05,- 7 - 108 S.E.2d 380, 383-84 (1959); Grasty v. Tanner , 206 Va. 723, 726-27, 146 S.E.2d 252, 254-55 (1966)). See also Thorpe v. Commonwealth , 223 Va. 609, 292 S.E.2d 323 (1982) (applying the Court’s rationale in Grasty ). Binding precedent establishes that an accident reconstruction expert, in either a civil or criminal case, “may describe tire marks, skid marks, or cuts which he has obse rved on the pavement at or near the place of an automobile accident, [as well as dama ge to the vehicles,] but the inference to be drawn from such testimon y is ‘solely [within] the prov ince of the jury.’” Venable , 200 Va. at 905, 108 S.E.2d at 383-84 (quoting Rich ardson v. Lovvorn , 199 Va. 688, 693, 101 S. E.2d 511, 514 (1958)). See also Lopez , 240 Va. at 423, 39 7 S.E.2d at 865; Schooler v. Commonwealth , 14 Va. App. 418, 421, 417 S.E.2d 110, 111 (1992) . This principle is consistent with the well-established rule that “‘the admission of expe rt opinion upon an ultimate issu e of fact is impermissible [in criminal cases] because it invades the function of the fact finder.’” Zelenak v. Commonwealth , 25 Va. App. 295, 299, 487 S.E.2d 873, 875 ( 1997) (quoting Llamera v. Commonwealth , 243 Va. 262, 264, 414 S. E.2d 597, 598 (1992)). The record before us establishes that Pu ckett told the jury that a 34-foot skid mark on the northbound lanes of Interstate 95 was consistent with be ing made by the Mazda in which the victims were traveling. He also stated that appellant ’s Lexus had made seve ral gouge ma rks in the roadway when its driver’s side tire had separated from the vehicle, completely exposing the rim. Puckett further explained that he had observed paint that matched Haynes’ Mazda on the hood and front bumper of appellant’s Lexus. He noted that no other paint transfer was foun d on any other portion of the Lexus. Paint matching appellant’s Lexus was located on the front portion of Haynes’ Mazda. We conclude the fo regoing testimony did not invade the province of the jury. However, Puckett also testified that the da mage to the front of both the Lexus and the Mazda was angled towards the driver from the front passenger headlight, consistent with a head-on- 8 - collision. Then, using th e diagram of the collisio n scene, Puckett pointe d to where the Mazda’s bumper cover landed and explained that its “dista nce away from the actual impact . . . indicate[d] . . . the direction . . . the . . . Mazda” was traveling at the time of impact. He opined that the location of the Mazda’s bumper cover “sug gest[ed] that the . . . Mazda wa s traveling northbound on the interstate.” Puckett concluded that, based on hi s observations, and the statements of the other drivers and witnesses, appellant’s “driver’s side headlight” impacted with the Mazda’s “driver’s side headlight” in a “head-on, slightly off-set ” collision. From thes e conclusions, Puckett determined that after the Lexus and the Mazda struck head-on . . . [t]he ve hicles rotated which pushed the . . . Lexus up on the concrete barrier [between the north and southbound lanes of Interstate 95] . After the vehicles were rotating, the . . . Mazda, its driver ’s side rear rotated out in the center lane and was struck by the . . . Buick. Almost simultaneously when he struck th e back of the vehicle, he was struck in the rear by the . . . Honda. We previously have held that an “expert in the field of crash reconstruction,” Schooler , 14 Va. App. at 419, 417 S.E.2dat 111, who related hi s observations from the scene of an accident, was not permitted to “state his resulting opinion that defendant’s vehicle ‘impac ted the tree on the left front grill area on the left hand side of the vehi cle’ and then ‘rotated to the right re-entering the roadway in front of the police vehicle.’” Id. at 419-20, 417 S.E.2d at 11 1. We concluded that these inferences drawn from the expert’s observations and findings “belonged sole ly to the factfinder.” Id. at 422, 417 S.E.2d at 112. Puckett’s testimony that the Lexus and the Ma zda impacted in a head-on, slightly off-set collision and that Haynes’ Mazda was traveling northb ound in the northbound lanes at the time of the collision, as well as hi s testimony regarding the subsequent ro tation of the vehicl es as each came to a stop in its final resting location, mirrored the impermissible expert testimony in Schooler

. Whether appellant’s Lexus struck Haynes’ Mazda “head-on ” while traveling in the wrong direction- 9 - on the interstate highway, or whether the Mazda was traveling northbound at the time of the collision were crucial fact s in determining whether appellant’s conduct was so gross, wanton, and culpable as to show a reckless disregard for hu man life, as well as wh ether her conduct was a proximate cause of the victims’ deaths and maiming. 2 Furthermore, Pucke tt’s testimony on these critical matters in e ssence told the jury that appellant wa s driving southbound in the northbound lanes when the car she was driv ing and the Mazda collided. Such testimony violat es Virginia’s prohibition of expert opinion on ultimate issues of fact in criminal cases. See Askew v. Commonwealth , 40 Va. App. 104, 10 9, 587 S.E.2d 58, 61 ( 2003) (citing Zelenak , 25 Va. App. at 299, 487 S.E.2dat 875). Moreover, throughout his testimony, Pucke tt stated that he did not use mathematical calculations or other scient ific equations to arrive at his conc lusions as to how the fatal collision occurred. Rather, he emphasized that he employ ed his knowledge of Ne wton’s Laws of Physics 3 and considered the evidence he ga thered at the accident scene, including roadway markings, paint transfers, vehicle damage, and statements of witnesses and other drivers. Puckett’s opinion testimony “required no sc ientific or specialized knowledge, but w[as] susceptible to determination

2 To convict appellant of aggravated involuntary manslaughter and maiming while driving under the influence of alcohol, the Commonwealth had to prove that appellant was driving under the influence of al cohol, that her conduct was so gross, wanton, and culpable as to show a reckless disregard for human life, and that a causal connecti on existed between her intoxication and the death of anot her person. Goodman v. Commonwealth , 37 Va. App. 374, 386-87, 558 S.E.2d 555, 561-62 (2002) (citations omitted). See also Stevens v. Commonwealth , 44 Va. App. 122, 133, 603 S.E.2d 642, 648 (2004) (noti ng that the charge of maiming while driving under the influence also requires proof of driving under th e influence of alcohol or drugs and a causal connection, but requir es proof of “serious bodily inju ry of another pe rson resulting in permanent and significant physical impairment instead of death”).

3 Puckett testified during his expert qualification voir dire that the First Rule of Newton’s Laws of Physics is that, “[a]n object at rest rema ins at rest unless acted upon by an outside force. An object in motion remains in motion in a stra ight line unless acted upon by an outside force.” Puckett also stated Newton’s Second Law of Physics as “[a]n outside force acting upon an object, forces an object in a di rection based on the amount of force.”- 10 - on the basis of [the] ordinary know ledge, common sense, and practical experience of lay persons.” Schooler , 14 Va. App. at 421, 41 7 S.E.2d at 112 (internal citations omitted). Likewise, the issue of the cr edibility of the driver s’ and witnesses’ st atements on which Puckett partially based his opinions “falls squarely within the jury’s province, and is one which a jury can resolve without any expert testimony to assist it.” Brown , 244 Va. at 532, 423 S.E.2d at 178. From the record before us we conclude that the trial court abused its discretion when it admitted Puckett’s op inion testimony that ther e was a head-on collision be tween the Lexus and the Mazda in the northbound lanes of Interstate 95; that the Mazda was traveling northbound at the time of the collision; and that the Mazda, after being struck by the Lexus, was struck a second time by the Buick, which in turn was struck by the Honda. Puckett’s opinions in these areas invaded the province of the jury because they offered conclu sions on ultimate issues of fact, required no scientific or specialized knowledge, and were pa rtially based on witness an d driver statements, the credibility of which was to be assessed solely by the jury. See Brown , 244 Va. at 533, 423 S.E.2d at 180; Lopez , 240 Va. at 423-24, 397 S.E.2d at 865; Venable , 200 Va. at 905, 10 8 S.E.2d at 394; Schooler , 14 Va. App. at 420, 417 S.E.2d at 112. III. Although the trial court erred in admitting Pu ckett’s opinion testimony, “that error does not require reversal if we determine the erro r was harmless.” Ep ps v. Commonwealth , 47 Va. App. 687, 708-09, 626 S.E.2d 912, 922 (2006) (en banc) (citi ng Lavinder v. Commonwealth , 12 Va. App. 1003, 1005, 407 S. E.2d 910, 911 (1991) (en banc)). An error is harmless “[w]hen it plainly appears from the record and the evidence given at the trial that the parties have had a fair trial on the merits and substantial justice has been reached.” Code § 8.01-678.- 11 - In a criminal case, it is implicit th at, in order to determine whether there has been a fair trial on the merits and whether substantial justice has been reached, a revi ewing court must decide whether the alleged error substantially influenced the jury. If it did not, the error is harmless. Clay v. Commonwealth , 262 Va. 253, 259, 546 S.E.2d 728, 731 (2001). In Clay , the court adopted the following test for non-constitutional harmless error: If, when all is said and done, the conviction is sure that the error did not influence the jury, or had but slight effect, the verdict and the judgment should stand . . . . But if one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whol e, that the judgment was not substantially swayed by the error, itis impossible to conclude that substantial rights were not affected. . . . If so, or if one is left in grave doubt, the conviction cannot stand. Id. at 260, 546 S.E.2d at 731-32 (quoting Kotteakos v. United States , 328 U.S. 750, 764-65 (1946)). Applying this standard, we cannot say on this record that Puckett’s opinion testimony did not substantially influence the jury . “Notwithstanding [the physical evidence of the fatal collision], the jury could have been persuaded by the testimo ny of one witness, a witness qualified by the trial judge as an expert in the [fie ld of accident reconstruction], to believe that” appellant, in her intoxicated state, was driving the wrong way on the northb ound lanes of Interstate 95. Jenkins v. Commonwealth , 254 Va. 333, 338, 492 S. E.2d 131, 133-34 (1997). We reverse appellant’s convictions and remand for a new trial. Having concluded that the trial court committed reversib le error in ad mitting Puckett’s opinion testimony, it is unnecessary for us to consid er appellant’s second co ntention that the trial court erred in prohibiting her from cross-ex amining Puckett as to the reliability of conflicting witness statements on which he partially based his opinions. Reversed and remanded.