{ "id": 6137946, "name": "Evelyn ETHRIDGE v. STATE of Arkansas", "name_abbreviation": "Ethridge v. State", "decision_date": "1983-07-06", "docket_number": "CA CR 82-197", "first_page": "111", "last_page": "119", "citations": [ { "type": "official", "cite": "9 Ark. App. 111" }, { "type": "parallel", "cite": "654 S.W.2d 595" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "233 Ark. 616", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1691617 ], "weight": 2, "year": 1961, "opinion_index": 0, "case_paths": [ "/ark/233/0616-01" ] }, { "cite": "268 Ark. 535", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1715509 ], "weight": 2, "year": 1980, "opinion_index": 0, "case_paths": [ "/ark/268/0535-01" ] }, { "cite": "7 Ark. App. 130", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6138516 ], "weight": 2, "year": 1983, "opinion_index": 0, "case_paths": [ "/ark-app/7/0130-01" ] }, { "cite": "263 Ark. 739", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1672601 ], "weight": 2, "year": 1978, "opinion_index": 0, "case_paths": [ "/ark/263/0739-01" ] }, { "cite": "275 Ark. 264", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1753650 ], "weight": 2, "year": 1982, "opinion_index": 0, "case_paths": [ "/ark/275/0264-01" ] }, { "cite": "265 Ark. 934", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1664725 ], "weight": 2, "year": 1979, "opinion_index": 0, "case_paths": [ "/ark/265/0934-01" ] }, { "cite": "274 Ark. 346", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1754954 ], "weight": 2, "year": 1981, "opinion_index": 0, "case_paths": [ "/ark/274/0346-01" ] }, { "cite": "296 N.W.2d 132", "category": "reporters:state_regional", "reporter": "N.W.2d", "year": 1980, "pin_cites": [ { "page": "134" } ], "opinion_index": 0 }, { "cite": "293 P.2d 430", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 650850 ], "year": 1956, "pin_cites": [ { "page": "433" } ], "opinion_index": 0, "case_paths": [ "/ariz/80/0088-01" ] }, { "cite": "581 P.2d 271", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 708259 ], "year": 1978, "pin_cites": [ { "page": "279" } ], "opinion_index": 0, "case_paths": [ "/ariz/119/0426-01" ] }, { "cite": "606 F.2d 908", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1436295 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/f2d/606/0908-01" ] }, { "cite": "550 F.2d 505", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 988766 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/f2d/550/0505-01" ] }, { "cite": "593 F.2d 837", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 517706 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/f2d/593/0837-01" ] }, { "cite": "256 Ark. 298", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8719765 ], "weight": 3, "year": 1974, "pin_cites": [ { "page": "300" } ], "opinion_index": 0, "case_paths": [ "/ark/256/0298-01" ] }, { "cite": "239 Ark. 211", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1730747 ], "weight": 4, "year": 1965, "opinion_index": 0, "case_paths": [ "/ark/239/0211-01" ] } ], "analysis": { "cardinality": 825, "char_count": 15510, "ocr_confidence": 0.864, "pagerank": { "raw": 2.067395098345679e-07, "percentile": 0.7573209866675624 }, "sha256": "72eeaa885accfed085745ff2f68ea3dae2bbf0a8ddcf0dc2efb8ef95cc4ada7a", "simhash": "1:93e284ac380ed5fe", "word_count": 2644 }, "last_updated": "2023-07-14T22:52:18.031409+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Evelyn ETHRIDGE v. STATE of Arkansas" ], "opinions": [ { "text": "Melvin Mayfield, Chief Judge.\nAppellant Evelyn Ethridge appeals her conviction of manslaughter and urges eight points for reversal. We find reversible error as to one and discuss the others only to the extent we think necessary in view of a new trial.\nIn April of 1982 a tornado had touched down near the City of Conway and the police had set up a roadblock to control traffic going in and out of the area. A vehicle driven by appellant came over the crest of a hill some 1400 feet from where a police officer was standing in appellant\u2019s lane talking to the driver of a vehicle headed toward appellant, but which had been stopped at the officer\u2019s signal. It was after dark, the lights of the other vehicle were shining toward appellant, and appellant\u2019s vehicle struck the policeman as he stepped out from behind the front door of the other vehicle and signaled the appellant to stop.\nAppellant never applied her brakes before the officer was hit; her male companion was intoxicated; and her blood-alcohol test registered .15%, although a man helping the police control traffic testified that shortly after the accident he did not notice anything unusual about her behavior or demeanor.\nOne of the points relied upon by appellant concerns the giving of an instruction based upon the presumptions set out in Ark. Stat. Ann. \u00a7 75-1031.1 (Repl. 1979). That instruction, No. 9, was as follows:\nCOURT\u2019S INSTRUCTION NO. 9\nYou are instructed that the amount of alcohol in the defendant\u2019s blood at the time alleged as shown by chemical analysis of the defendant\u2019s blood, urine, breath or other bodily substance shall give rise to the following presumptions:\nNumber one, if there was at the time point 0-five percent present or less by weight of alcohol in the defendant\u2019s blood, it shall be presumed that the defendant was not under the influence of intoxicating liquor.\nIf there was at the time in excess of point 0-five percent but less than point one-0 percent by weight of alcohol in the defendant\u2019s blood, such fact shall give rise to \u2014 shall not give rise to any presumption that the defendant was not under the influence of intoxicating liquor, but such fact may be considered with other competent evidence in determining the guilt or innocence of the defendant.\nNumber three, if there was at the time point one-0 percent or more by weight of alcohol in the defendant\u2019s blood, it shall be presumed that the defendant was under the influence of intoxicating liquor.\nThe foregoing provisions shall not be construed as limiting the introduction of any other competent evidence bearing upon the question of whether or not the defendant was under the influence \u00f3f intoxicating liquor.\nThis instruction was objected to by appellant on the specific grounds that it was not in the Arkansas model criminal instruction book (AMCI). Appellant offered an instruction incorporating AMCI 205 to be given in lieu of the court\u2019s instruction No. 9, but the court refused that request and gave both instructions to which appellant objected. Appellant\u2019s requested instruction was given as the court\u2019s instruction No. 10, and reads as follows:\nEvidence of drinking may be considered by you along with all the other evidence in the case in determining whether Mrs. Ethridge was reckless or negligent, but that evidence alone does not impose upon you the duty of finding guilt as to manslaughter or negligent homicide.\nWe think the court erred. The note on use which appears in the AMCI book under 205 clearly states that instruction should be used when the evidence raises a statutory presumption other than the shoplifting presumption. And the comment which follows the note on use states: \u201cIt is improper for the judge to tell the jury that a specific fact in evidence is sufficient to support a specified inference or presumption of fact.\u201d Certainly that it what the court\u2019s instruction No. 9 did.\nThe state argues that Jones v. City of Forrest City, 239 Ark. 211, 388 S.W.2d 386 (1965), supports the trial court\u2019s action, but French v. State, 256 Ark. 298, 506 S.W.2d 820 (1974), cited under AMCI 205, holds otherwise. In French the court said the vice in an instruction which tells the jury that a specific fact shown by the evidence is sufficient to support a certain inference is that this amounts to a comment on the evidence which is prohibited by Art. 7, Sec. 23 of the Constitution of Arkansas. In reference to the Jonesv. Forrest City case, the court said:\n[W]e reject appellee\u2019s argument based upon a statement in Jones v. City of Forrest City, 239 Ark. 211, 388 S. W.2d 386 (and cases cited therein), that an instruction in the language of a statute applicable to the facts of a case is always proper. This comprehensive language applied literally would permit the legislature to override Art. 7, Sec. 23 of the Constitution, but we have held in Reno, decided subsequently to Jones, that this cannot be. 256 Ark. at 300.\nSince this case must be reversed and remanded for a new trial because of the error above discussed, we also discuss the appellant\u2019s contention that it was improper to allow the state\u2019s expert to give his opinion on an ultimate fact in issue.\nThe state called Steve Jackson of the state police who testified as an expert in accident investigation and reconstruction. He said he had been asked to do a reconstruction in this case and he read six questions which he had been asked to answer. After explaining how he arrived at his answers, he read the questions again and gave his answers.\nThe first question asked what minimum speed the vehicle was traveling at impact, and the trooper\u2019s answer was 42 miles per hour.\nThe second question asked what visibility was possible at the time of the accident, and the officer\u2019s answer was 1420 feet.\nThe third question asked what was the maximum visibility under the circumstances, and the answer was 1420 feet.\nThe fourth question asked if the driver of the striking vehicle should have been able to see the pedestrian\u2019s position, and the expert\u2019s answer was \u201conly at the point where the flashlight is used.\u201d\nThe fifth question asked if the driver of the striking vehicle had time to take evasive action if traveling at the speed limit, and the answer was yes.\nAnd the last question was, \u201chad driver been alert and practicing reasonable safety, could this death have been prevented?\u201d The state trooper\u2019s answer was, \u201cIn my opinion it could have.\u201d\nNow the question for the jury to decide in this case was whether the appellant recklessly caused the death of the policeman, and the law provides that one acts recklessly when there is a gross deviation from the standard of care that a reasonable person would observe in the same situation. Ark. Stat. Ann. \u00a7\u00a7 41-1504 and41-203 (Repl. 1977). We think this is essentially the same question the state trooper answered. When he said the policeman\u2019s death could have been avoided if the appellant had been alert and practicing reasonable safety, he answered the question the jury had to answer \u2014 did appellant cause the policeman\u2019s death by a gross deviation from the standard of care that a reasonable person would observe in the same situation.\nThe state asserts, however, that our Uniform Evidence Rule 704 allows an expert to give an opinion on an ultimate fact issue. However, that is not really what the rule provides. The rule states that testimony in the form of an opinion otherwise admissible is not objectionable because it embraces an ultimate issue. Our rule 704 is the same as the federal evidence rule 704. The advisory committee\u2019s note to that rule states, in part, \u201cThe abolition of the ultimate issue rule does not lower the bars so as to admit all opinions . . . opinions must be helpful to the trier of fact . ...\u201d 28 U.S.C.A. Rule 704 (West 1975).\nAn 8th Circuit case, United States v. Scavo, 593 F.2d 837 (8th Cir. 1979), states:\nRule 704 does not, of course, render all expert testimony admissible. Expert testimony must still meet the criterion of helpfulness expressed in Rule 702 and is also subject to exclusion under Rule 403 if its probative value is substantially outweighed by the risks of unfair prejudice, confusion or waste of time.\nHere are some cases which have held that an opinion involving an ultimate issue was not admissible even though rule 704 or its equivalent was in effect.\nMarx & Co., Inc. v. Diner\u2019s Club, Inc., 550 F.2d 505 (2nd Cir. 1977), where the expert gave his opinion on the \u201creasonable\u201d time required for an SEC registration statement to become effective. This was based upon the statistic median time required. The court said the issue for the jury to determine was whether the party\u2019s conduct was reasonable under the circumstances in which it found itself and held that the opinion given was \u201cprejudicial overweight.\u201d\nUnited States v. Pino, 606 F.2d 908 (10th Cir. 1979), where the defendant was charged with killing a person in Indian country by driving without due care and circumspection, and the court agreed that psychiatric testimony was not admissible to show that, because of the defendant\u2019s personality, three alcoholic drinks would not cause him to drive in a reckless and incautious manner. The appellate court said the expert was not free to \u201csubstitute his judgment\u201d as to the defendant\u2019s state of mind and in a footnote said it was mindful of Rule 704, but \u201cwe do not feel, however, that the rule means that the witness may simply say that the defendant would not, or did not, drive recklessly.\u201d\nShell Oil Co. v. Gutierrez, 581 P.2d 271, 279 (Ariz. Ct. App. 1978), where it was held that the trial court did not err in excluding expert testimony as to whether the \u201cFLAMMABLE LIQUID\u201d label was adequate. The appellate court said, \u201cExpert opinions will be rejected where the facts can be intelligently described to and understood by the jurors so that they can form reasonable opinions for themselves.\u201d It is interesting to note that the Arizona rule that expert opinion will not be excluded merely because it deals with ultimate facts, was established by case decision. Allied Van Lines v. Parsons, 293 P.2d 430, 433 (Ariz. 1956).\nGallagher v. Parshall, 296 N.W.2d 132, 134 (Mich. Ct. App. 1980), where the court said:\nAs to the trial court\u2019s exclusion of the opinion testimony of Dr. Devlin regarding whether plaintiff\u2019s stiff neck constituted serious impairment, we are fully in accord therewith. Given the detailed testimony regarding the diagnosis of the injuries and the doctor\u2019s explication of the medical terms utilized in such diagnosis, we again conclude that the jurors were capable of reaching their own conclusion thereon unaided by any expert\u2019s opinion on the matter.\nAnd finally, the Arkansas Supreme Court case of Gramling v. Jennings, 274 Ark. 346, 625 S.W.2d 463 (1981), where the court reversed because a doctor was allowed to say that, in his opinion, another doctor was not negligent when he severed the plaintiff\u2019s ureter. The court said, \u201cit is difficult to draw a line between opinion testimony that merely embraces the ultimate issue and opinion testimony that tells the jury which result to reach,\u201d but observed, \u201cin this case it is a bald statement of an opinion as to the ultimate issue.\u201d\nIn the instant case the state also argues that appellant failed to object properly to the ultimate-issue question. Since we have reversed on another point, it would serve no purpose to address the state\u2019s contention as to lack of proper objection. In view of another trial, however, we note, assuming a proper objection, the sixth question and answer of the state\u2019s expert witness are not admissible under evidence rule 702 as they are not helpful to the jury\u2019s determination of a fact in issue \u2014 that is, given the same information used by the expert, the jury could answer the sixth question as well as he could, and it is the jury\u2019s duty to determine the standard of care of a reasonable person, not the duty of an expert; also, under evidence rule 403 the probative value of the sixth question and answer given in evidence by a member of the Arkansas State Police is substantially outweighed by the danger of unfair prejudice.\nAs to the other points argued by appellant, one contention is that some potential jurors were summarily excused, without further inquiry, when they responded affirmatively to the court\u2019s questions of whether they were personally acquainted with appellant or her family, and others were so excused when they stated they had secondhand knowledge relating to the facts and circumstances of the case. Appellant does not contend that her voir dire examination of these prospective jurors was restricted as in Fauna v. State, 265 Ark. 934, 582 S.W.2d 18 (1979), and since a party is not entitled to have any particular juror, in the absence of a showing that a biased or incompetent juror was thrust upon appellant, we find no error on that point.\nAlso, we find no error in the introduction into evidence of the flashlight the deceased officer was using. Appellant argues that the chain of possession was broken and that the batteries may have been changed, but all that appears in the evidence is that the flashlight had been held by the policeman\u2019s family for a short while on the night of the occurrence. In establishing a chain of custody prior to introduction of evidence, it is not necessary to eliminate every conceivable possibility that the evidence has been tampered with; it is only necessary that the trial judge be satisfied that the evidence is genuine and, with reasonable probability, that it has not been tampered with. Davis v. State, 275 Ark. 264, 630 S.W.2d 1 (1982). Here, the flashlight was relevant on the issue of whether its light should have been seen by the appellant; there was evidence that the batteries were rechargeable and had to be replaced only once a year; and the break in custody and the strength of the batteries were matters going to the weight of the evidence, not its admissibility. Gardner v. State, 263 Ark. 739, 569 S. W.2d 74 (1978).\nAnother point raised by appellant is that the court erred in limiting her closing argument to twenty minutes. While there may be disagreement as to when it has been abused, it is clear that the length of the jury arguments must be left to the sound discretion of the trial judge. Kelley v. State, 7 Ark. App. 130, 644 S.W.2d 638 (1983). We cannot say that the twenty-minute limitation was an abuse of discretion in this case.\nThe appellant\u2019s contention that the prosecuting attorney\u2019s j ury argument exceeded the bounds of fair comment is answered by the proposition that this is also a matter in which the trial court has broad discretion. Price v. State, 268 Ark. 535, 597 S.W.2d 598 (1980). We do not, however, mean to imply a diminution of the authority of Simmons v. State, 233 Ark. 616, 346 S.W.2d 197 (1961), cited by appellant, and, of course, this is also an issue that must be determined on a case-by-case basis.\nWe think there is no need to discuss appellant\u2019s final contention that the verdict was not supported by substantial evidence. Suffice it to say, the judgment is reversed and remanded for a new trial because of the error in giving the jury the court\u2019s instruction No. 9.\nReversed and remanded.", "type": "majority", "author": "Melvin Mayfield, Chief Judge." } ], "attorneys": [ "Blevins, Pierce