                               COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Felton, Judges 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 Attorney General (Robert F. McDonnell,
                 Attorney General; Susan L. Parrish, Assistant Attorney General, on
                 brief), for appellee.


       Lalita Yeldell (“appellant”) appeals from her convictions following a jury trial, for felony

driving under the influence of alcohol in violation of Code § 18.2-266, two counts of involuntary

manslaughter in violation of Code § 18.2-36.1, and one count of maiming while driving under the

influence of alcohol in violation of Code § 18.2-51.4. She contends the trial court erred in: (1)

allowing the Commonwealth’s accident reconstruction expert to give opinion testimony as to how

the motor vehicle collision occurred, and (2) prohibiting defense counsel from cross-examining the

Commonwealth’s accident reconstruction expert about witness statements the expert testified he had

considered when forming his opinions. For the reasons that follow, we reverse appellant’s

convictions and remand for a new trial if the Commonwealth be so advised.




       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                                          BACKGROUND

        The record reflects that shortly after 3:00 a.m. on April 11, 2004, appellant’s Lexus

automobile collided with a Mazda automobile in the northbound lanes of Interstate 95 in the City of

Richmond. Chantelle Haynes, the driver of the Mazda, and Tashanna Smallwood, Haynes’ front

seat passenger, were pronounced dead at the scene. Adrian Wright-Bent, Haynes’ backseat

passenger, suffered a broken femur, broken pelvic bones, and fractures of most of her facial bones.

Rescue workers extracted appellant from her vehicle, which had come to rest on the jersey wall

dividing the northbound and southbound lanes of Interstate 95. She was transported to a hospital

where she was in a coma for some three weeks following the accident.

                                           Motion in Limine

        Prior to trial, appellant filed a motion in limine to “prohibit the Commonwealth from

presenting expert reconstruction evidence.” Specifically, appellant sought to exclude the expert

opinions of Virginia State Trooper Anthony Puckett. Puckett, trained and experienced in accident

reconstruction, investigated the scene 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 reached its final resting place. He explained that

in reaching that conclusion, he considered the following: “[t]he damage to each vehicle, markings

on the roadway, paint transfers of the vehicle, statements by the drivers and statements by witnesses,

fluid transfers, debris in the roadway . . . [and t]he measurements of the vehicles.”

        At the conclusion of the hearing, appellant objected to the admission of Puckett’s

opinions regarding how the collision occurred. He argued that Puckett’s opinions invaded the




                                                 -2-
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, stating, “[t]he Court will not allow

an expert to invade the province of the jury. The Court will not allow an expert to render an opinion

that a lay witness can render.” However, the trial court stated that the accident reconstruction

“expert will be allowed to render an expert opinion based upon scientific analysis.”

                                                 Trial

       At the beginning of appellant’s trial, the trial court reiterated that Puckett would not be

permitted to invade the province of the jury in his testimony. The trial court, however, accepted

Puckett as an expert in the field of accident reconstruction 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.” Inexplicably the record does not

contain the 911 tape, or any transcript of what the 911 tape contained.

       During the Commonwealth’s case-in-chief, Puckett testified that four vehicles were

involved in the collision -- appellant’s green Lexus, Haynes’ blue Mazda, a red Buick, and a red

Honda. He described the collision scene for the jury, referring to the diagram he had created.

Based on his investigation, Puckett opined that appellant’s Lexus “struck” the victims’ Mazda

“head-on,” causing the Mazda to rotate counterclockwise 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, from the location of the Mazda’s bumper cover he found on the

highway, that the Mazda was traveling northbound when it collided with the Lexus.




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        On cross-examination, appellant’s counsel questioned Puckett regarding witness statements

in conflict with his conclusion regarding how the collision occurred. The following colloquy

occurred:

                [APPELLANT’S COUNSEL]: Now, I have been supplied 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 there and see if anyone testified
                they observed Ms. Yeldell’s vehicle going the wrong way on 95?

                           *       *       *       *       *       *       *

                [TROOPER PUCKETT]: I had not seen 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 witness has testified that
                he relied on part of witnesses’ statements, and it is perfectly proper
                for me to ask him about those witnesses’ statements.

                THE COURT: The objection is sustained. Let’s move on.

                [APPELLANT’S COUNSEL]: At the appropriate time, I would like
                to proffer what those 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 part upon witnesses’ statements and that she was

not allowed to cross-examine Puckett as to the reliability of those statements. After the trial court



        1
         The notebook containing the purported witness statements was not made part of the
record on appeal.
                                             -4-
denied appellant’s motion to strike, appellant asserted that Puckett’s testimony should also be struck

because it “invades the province of the jury.” Following the presentation 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 guilty of all four charges.

                                              ANALYSIS

                                                    I.

        The Commonwealth asserts, pursuant 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. Specifically, it argues that “defense counsel made no objection [at trial] that

the expert’s testimony was inadmissible because it invaded the province of the jury[, rather] . . .

[t]he only objection to Trooper Puckett’s testimony at trial was that it was not scientifically based.”

It contends that appellant’s motion to strike Puckett’s testimony as invading 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 good cause shown or to enable the Court of Appeals to attain the ends of

justice.’” Edwards 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 alert the trial judge to possible error so that

the judge may consider the issue intelligently and take any corrective actions necessary to avoid

unnecessary appeals, reversals 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,

                                                  -5-
41 Va. App. at 760, 589 S.E.2d at 448 (citing Mounce v. Commonwealth, 4 Va. App. 433, 435, 357

S.E.2d 742, 744 (1987)).

        The record reflects appellant presented the trial court with an opportunity to consider

whether Puckett’s opinion testimony invaded the province of the jury. Appellant’s motion in limine

clearly sought to exclude Puckett’s testimony on the grounds 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 witnesses and . . . the law of physics,”

and “based on the problem of the jury . . . [it] is not admissible for Virginia law.” Moreover,

appellant made a “continuing objection to the opinions” during Puckett’s testimony. We therefore

conclude appellant preserved the trial court’s ruling on the “invasion of the jury’s province” for

appellate review.

                                                    II.

        Appellant contends the trial court erred in admitting Puckett’s opinion 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 that Puckett’s opinions partially

relied on the credibility of witness statements.

        “The admission of expert testimony is committed to the sound discretion of the trial judge,

and we will reverse a trial court’s decision only where that court has abused its discretion.” Brown

v. Corbin, 244 Va. 528, 531, 423 S.E.2d 176, 178 (1992). “Nonetheless, expert testimony is

inadmissible on any subject on which the ordinary lay person of average 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 standard, the Supreme Court has repeatedly held in both

civil and criminal cases that “accident reconstruction expert testimony is rarely admissible . . .

because it invades the province of the jury.” Id. (citing Venable v. Stockner, 200 Va. 900, 904-05,

                                                   -6-
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 observed on the pavement

at or near the place of an automobile accident, [as well as damage to the vehicles,] but the inference

to be drawn from such testimony is ‘solely [within] the province of the jury.’” Venable, 200 Va. at

905, 108 S.E.2d at 383-84 (quoting Richardson v. Lovvorn, 199 Va. 688, 693, 101 S.E.2d 511, 514

(1958)). See also Lopez, 240 Va. at 423, 397 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 expert opinion upon an ultimate issue 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 Puckett told the jury that a 34-foot skid mark on the

northbound lanes of Interstate 95 was consistent with being made by the Mazda in which the

victims were traveling. He also stated that appellant’s Lexus had made several gouge marks 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 found on any other

portion of the Lexus. Paint matching appellant’s Lexus was located on the front portion of Haynes’

Mazda. We conclude the foregoing testimony did not invade the province of the jury.

       However, Puckett also testified that the damage 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

                                                 -7-
collision. Then, using the diagram of the collision scene, Puckett pointed to where the Mazda’s

bumper cover landed and explained that its “distance 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 “suggest[ed] that the . . . Mazda was traveling northbound on the

interstate.” Puckett concluded that, based on his 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 these conclusions, Puckett

determined that after the Lexus and the Mazda

                struck head-on . . . [t]he vehicles 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 the 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.2d at 111, who related his observations from the scene of an accident, was

not permitted to “state his resulting opinion that defendant’s vehicle ‘impacted the tree on the left

front grill area on the left hand side of the vehicle’ 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 111. We concluded that these

inferences drawn from the expert’s observations and findings “belonged solely to the factfinder.”

Id. at 422, 417 S.E.2d at 112.

        Puckett’s testimony that the Lexus and the Mazda impacted in a head-on, slightly off-set

collision and that Haynes’ Mazda was traveling northbound in the northbound lanes at the time of

the collision, as well as his testimony regarding the subsequent rotation of the vehicles 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


                                                   -8-
on the interstate highway, or whether the Mazda was traveling northbound at the time of the

collision were crucial facts in determining whether appellant’s conduct was so gross, wanton, and

culpable as to show a reckless disregard for human life, as well as whether her conduct was a

proximate cause of the victims’ deaths and maiming.2 Furthermore, Puckett’s testimony on these

critical matters in essence told the jury that appellant was driving southbound in the northbound

lanes when the car she was driving and the Mazda collided. Such testimony violates Virginia’s

prohibition of expert opinion on ultimate issues of fact in criminal cases. See Askew v.

Commonwealth, 40 Va. App. 104, 109, 587 S.E.2d 58, 61 (2003) (citing Zelenak, 25 Va. App. at

299, 487 S.E.2d at 875).

        Moreover, throughout his testimony, Puckett stated that he did not use mathematical

calculations or other scientific equations to arrive at his conclusions as to how the fatal collision

occurred. Rather, he emphasized that he employed his knowledge of Newton’s Laws of Physics3

and considered the evidence he gathered at the accident scene, including roadway markings, paint

transfers, vehicle damage, and statements of witnesses and other drivers. Puckett’s opinion

testimony “required no scientific 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 alcohol, that her conduct was so gross, wanton, and culpable as to
show a reckless disregard for human life, and that a causal connection existed between her
intoxication and the death of another 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) (noting that the charge of maiming while
driving under the influence also requires proof of driving under the influence of alcohol or drugs
and a causal connection, but requires proof of “serious bodily injury of another person 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 remains at rest unless acted upon by an outside force.
An object in motion remains in motion in a straight 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 direction based on the amount of force.”
                                                 -9-
on the basis of [the] ordinary knowledge, common sense, and practical experience of lay persons.”

Schooler, 14 Va. App. at 421, 417 S.E.2d at 112 (internal citations omitted).

        Likewise, the issue of the credibility of the drivers’ and witnesses’ statements 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 opinion testimony that there was a head-on collision between 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 conclusions on ultimate issues of fact, required no

scientific or specialized knowledge, and were partially based on witness and 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, 108 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 Puckett’s opinion testimony, “that error does not

require reversal if we determine the error was harmless.” Epps v. Commonwealth, 47 Va. App.

687, 708-09, 626 S.E.2d 912, 922 (2006) (en banc) (citing 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.

                                                  - 10 -
                In a criminal case, it is implicit that, in order to determine whether
                there has been a fair trial on the merits and whether substantial
                justice has been reached, a reviewing 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 whole, that the judgment was not
                substantially swayed by the error, it is 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 testimony of one witness, a witness qualified by the trial

judge as an expert in the [field of accident reconstruction], to believe that” appellant, in her

intoxicated state, was driving the wrong way on the northbound 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 reversible error in admitting Puckett’s

opinion testimony, it is unnecessary for us to consider appellant’s second contention that the trial

court erred in prohibiting her from cross-examining Puckett as to the reliability of conflicting

witness statements on which he partially based his opinions.

                                                                         Reversed and remanded.




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