State v. Jay, 2013 MT 79 (March 26, 2013) (5-0) (Rice, J.)
Issue: (1) Whether the district court erred in denying Jay’s challenge for cause; (2) whether the district court erred in excluding Jay’s expert witness; (3) whether the district court erred in denying Jay’s request to instruct on DUI as a lesser-included offense of Vehicular Homicide While Under the Influence; and (4) whether the district court erred in ordering Jay to pay restitution to the state, the victims, and the victims’ family members.
Short Answer: (1) No; (2) no; (3) no; and (4) yes.
Affirmed issues 1-3 and reversed issue 4
Facts: One night in October 2008, Jay was driving westbound on I-90 between Laurel and Billings when he crossed the median and began driving into oncoming eastbound traffic. Two cars avoided him, but Jay’s pickup struck a third, killing two people. EMTs smelled alcohol on Jay’s breath, and asked if he had been drinking. He said he had drunk two beers, and was “driving tired.” The weather was fine and there was no debris on the road. According to his truck’s computer, Jay did not apply his brakes during the 25 seconds preceding the crash. Jay told an officer he had had two beers and fallen asleep behind the wheel. Jay’s BAC was between .0706 and .088. Jay was charged with two counts of vehicular homicide while under the influence, and in the alternative, negligent homicide. He was also charged with two counts of criminal endangerment for forcing other drivers off the road. Jay’s defense was that he lost consciousness prior to the crash, perhaps because of a seizure. Prior to trial he disclosed that he intended to call a neurology expert, Dr. Peterson, to testify on seizure disorders. The state moved to exclude Dr. Peterson after interviewing him, because he had never examined Jay, and his only basis of knowledge about Jay was an EEG from the day of the accident that showed no evidence of seizures, and Jay’s lawyer’s oral account.
Procedural Posture & Holding: The district court held a hearing on pretrial motions, including the state’s motion to exclude Dr. Peterson. Jay’s counsel said Dr. Peterson would explain the typical symptoms of partial seizures and the difficulty in diagnosing them, but would not opine whether Jay suffered a seizure while driving. The court excluded him under M.R. Evid. 402, 403, and 702. Jay challenged a juror for cause after she voiced concerns about her ability to be impartial about drinking and driving, but the district court denied the challenge and Jay removed her with a peremptory challenge. Jay submitted a proposed instruction that DUI was a lesser-included offense, and the court denied it because the fact of Jay’s case did not support the instruction. The jury convicted Jay of two counts of negligent homicide and two counts of negligent endangerment, a lesser-included offense of criminal endangerment. The court sentenced Jay to 30 years in prison with 10 suspended, and ordered Jay to pay $600 in restitution to the state for expenses incurred in interviewing Dr. Peterson, as well as the cost of mental health treatment for the victims and their family members. Jay appeals, and the Supreme Court affirms in part and reverses in part.
Reasoning: (1) Whether a juror should be removed for cause hinges on distinguishing between a juror with a “fixed opinion” and a juror who has mere preconceptions. Here, the juror Jay challenged for cause did not demonstrate a fixed opinion about Jay’s guilt. Her spontaneous statement that she would follow the law even though it would be personally difficult is given more weight than “coaxed recantations.” The lower court did not abuse its discretion in denying the challenge for cause. (2) Jay argues the unexplained nature of his driving raises the possibility of a seizure. But there was no evidentiary connection made between seizures and Jay’s driving, and the lower court did not abuse its discretion in excluding the testimony. Moreover, the application of Rule 702 did not abridge Jay’s constitutional right to present a defense. Jay argues that his counsel rendered ineffective assistance by failing to create a record supporting the possibility that Jay had a seizure; however, this claim is not based on the trial record, and must be brought in a post-conviction proceeding. (3) Vehicular homicide includes the elements of a DUI offense, meeting step one of the two-step analysis in State v. Castle. The instruction must be given only when the jury, based on the evidence, could be warranted in finding the defendant guilty of the lesser included offense. If the defendant’s theory would support his acquittal, not a conviction for the lesser-included offense, the instruction need not be given. Jay argued he was not drunk, but had lost consciousness for some other reason. The lower court therefore did not abuse its discretion in refusing the lesser-included instruction. (4) The state concedes that the open-ended restitution award for mental health treatment for the victims and their families was error, leaving only the issue of the $600 restitution award to the state for Dr. Peterson’s interview. The state is not a victim of Jay’s crime and is therefore ineligible under § 46-18-201(5) for any restitution. This award is vacated.