APPEAL FROM: District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DC 09-0016 Honorable Susan P. Watters, Presiding Judge
The opinion of the court was delivered by: Justice Jim Rice
Submitted on Briefs: December 19, 2012
Justice Jim Rice delivered the Opinion of the Court.
¶1 Corey Brooks Jay (Jay) appeals from the judgment of the Thirteenth Judicial District Court adjudging him guilty of two counts of negligent homicide and two counts of negligent endangerment. He challenges the District Court's rulings, which denied his challenge of a prospective juror for cause, excluded his expert witness from testifying about complex partial seizures, denied his request for a lesser-included offense jury instruction, and ordered him to pay $600 in restitution to the State and an undetermined amount of restitution to the victims and their family members for mental health treatment. We affirm in part and reverse in part, and address the following issues:
¶2 Did the District Court err by denying Jay's challenge for cause?
¶3 Did the District Court err by excluding Jay's expert witness on complex partial seizures?
¶4 Did the District Court err by denying Jay's request to instruct the jury on DUI as a lesser-included offense of Vehicular Homicide While Under the Influence?
¶5 Did the District Court err by ordering Jay to pay restitution to the State and the victims and their family members?
FACTUAL AND PROCEDURAL BACKGROUND
¶6 At around 8 p.m. on October 3, 2008, Jay was traveling westbound on Interstate 90 (I-90) between Laurel and Billings. Commuters on I-90 watched as Jay's pickup suddenly made a sharp turn into the grass median that separated the eastbound and westbound traffic. His pickup continued through the median before turning onto I-90 and driving into the oncoming eastbound traffic. Jay traveled the wrong way on I-90 for approximately one-fifth of a mile. Two cars successfully avoided colliding with Jay's pickup by driving off the road. However, Jay's pickup struck a third car, carrying David Hanson (Hanson) and Janice Thomas (Thomas) at a high rate of speed. Hanson and Thomas suffered traumatic injuries that resulted in their deaths at the scene of the crash.
¶7 Emergency medical technicians (EMTs) assisting Hanson, Thomas, and Jay at the scene smelled the odor of alcoholic beverage on Jay's breath. When asked, Jay volunteered that he had drunk two beers and that this would teach him a lesson in "driving tired." Jay suffered a small laceration above his left eye and an open fracture on his left leg. EMTs transported Jay to St. Vincent's Hospital in Billings for treatment.
¶8 Troopers Kyle Hayter (Trooper Hayter) and Shane Warehime (Trooper Warehime) of the Montana Highway Patrol investigated the crash. Trooper Hayter arrived on scene at 8:22 p.m. He determined that Jay had traveled one-fifth of a mile the wrong way on I-90 before colliding with Hanson and Thomas. Nonhuman factors did not explain the crash: the weather was fine, there was no debris on the roadway, and the deliberate nature of the trajectory of Jay's truck was not consistent with mechanical problems. Data recovered from the power control module*fn1 of Jay's pickup revealed that Jay had not applied the brakes during the 25 seconds preceding the crash. Trooper Warehime photographed the crash scene, spoke with witnesses, and went to St. Vincent's Hospital to talk to Jay. Jay told Trooper Warehime he had drank two beers and had fallen asleep behind the wheel.
¶9 Dr. Rentz, a surgeon, treated Jay at St. Vincent's Hospital. Jay was coherent. He understood that he was in the emergency room, and why he was there. While Jay appeared alert, Dr. Rentz smelled alcohol on Jay and noted that he was behaving like he had been drinking. A neurosurgeon performed a head CT scan, which came back non-remarkable; the neurosurgeon did not recommend any follow up treatment for a brain injury or disorder. Jay told Dr. Rentz that he did not have a history of seizures. At 9:20 p.m., St. Vincent's Hospital staff drew a plasma blood sample from Jay as part of his medical treatment. Subsequent testing registered Jay's blood alcohol content (BAC) between 0.0706 and 0.088.*fn2
¶10 The State charged Jay with two counts of Vehicular Homicide While Under the Influence for the deaths of Hanson and Thomas. In the alternative, the State charged Jay with two counts of Negligent Homicide for Hanson's and Thomas's deaths. The State also charged Jay with two counts of Criminal Endangerment for forcing other drivers off the road to avoid colliding with Jay.
¶11 Jay pleaded not guilty to the charges and sought to prove at trial that his driving was the result of losing consciousness before the crash, perhaps because of a seizure. Prior to trial, Jay disclosed he intended to call Dr. Dale Peterson, a specialist in neurology, to testify as an expert on seizure disorders and their symptoms, effects, and diagnosis. The State moved to exclude Dr. Peterson after its interview with him revealed that he had never examined Jay; his only basis of knowledge about Jay's medical status and about what happened on October 3, 2008, consisted of a 30-minute electroencephalogram (EEG)*fn3 that was "unremarkable," in that it did not show Jay was suffering from seizures, and an oral account of events provided by Jay's lawyer.
¶12 On November 24, 2009, the District Court conducted a hearing on pretrial motions, including the State's motion to exclude Dr. Peterson. Jay's counsel advised the court that Dr. Peterson would not be offering an opinion as to whether Jay suffered a seizure while driving; rather, Dr. Peterson would merely explain the typical symptoms of complex partial seizures and the difficulty in diagnosing them. The District Court excluded Dr. Peterson from testifying pursuant to M. R. Evid. 402, 403, and 702.
¶13 During voir dire, Jay's counsel questioned prospective jurors about their feelings on the presumption of innocence. Following this questioning, Jay challenged for cause potential juror Bennett because she voiced concerns about her ability to be impartial given the issue of drinking and driving. The District Court denied the challenge and Jay removed Bennett by exercising a peremptory challenge. During the settling of jury instructions, Jay requested the court to instruct the jury on the lesser-included offense of Driving Under the Influence (DUI) to the charges of Vehicular Homicide while Under the Influence. The court denied the request, reasoning that while DUI was a lesser-included offense, the facts of Jay's case did not support the instruction. The court did instruct the jury on the lesser-included offense of Negligent Endangerment to the charges of Criminal Endangerment.
¶14 The jury convicted Jay of two counts of Negligent Homicide and two counts of Negligent Endangerment. The District Court imposed a thirty year sentence in the Montana State Prison with ten years suspended. The court further ordered, over Jay's objection, that he pay the State $600 in restitution for expenses incurred in interviewing Dr. Peterson and that he was "financially responsible for the cost of mental health treatment for the victims and their family members." Jay appeals.
¶15 This Court reviews a district court's denial of a challenge for cause to a prospective juror for abuse of discretion. State v. Allen, 2010 MT 214, ¶ 20, 357 Mont. 495, 241 P.3d 1045. We review the district court's determination regarding the qualification and competency of an expert witness for an abuse of discretion. State v. Bollman, 2012 MT 49, ¶ 22, 364 Mont. 265, 272 P.3d 650. The trial court has "great latitude" in ruling on the admissibility of expert testimony. State v. Crawford, 2003 MT 118, ¶ 30, 315 Mont. 480, 68 P.3d 848 (emphasis in original). A district court's refusal to give an instruction on a lesser-included offense is also reviewed for abuse of discretion. State v. Feltz, 2010 MT 48, ¶ 14, 355 Mont. 308, 227 P.3d 1035. Finally, we review restrictions or conditions on a sentence for both legality and abuse of discretion. State v. Hafner, 2010 MT 233, ¶ 13, 358 Mont. 137, 243 P.3d 435.
¶16 Did the District Court err in denying Jay's challenge for cause?
¶17 Jay argues that the District Court should have removed Bennett from the jury pool because her statements during voir dire that she had strong feelings against drinking and driving showed that she could not be impartial and presume Jay was innocent. The State counters that Bennett demonstrated that she was willing to put her personal feelings about drinking and driving aside, be impartial, and apply the law as instructed by the court.
¶18 Jay's counsel began his voir dire with a discussion of the presumption of innocence. Several potential jurors explained their understanding of "innocent until proven guilty." One potential juror said that she needed to see the facts of the case before deciding innocence or guilt but felt that Jay should not have been driving if he had been drinking. Shortly after, Jay's counsel had the following colloquy with a different potential juror, Bennett:
DEFENSE COUNSEL: Miss Bennett, how about you? Is that-do you think it's a natural thing, first of all, to think that because my client is sitting up here that he probably did something wrong?
BENNETT: I don't think it feels natural in this instance, because of, you know, the questions that are being asked at this time and, you know, sort of the situation. You know, I kind of feel like, you know, in any case, I'm right in the middle until I see evidence one way or the other, just like everyone else has talked about. But, we're here for a reason. And if we're here for a reason, then I can't assume complete innocence.
DEFENSE COUNSEL: Okay. If you-the Judge is going to read some jury instructions, and that will be one of the jury instructions is that you are required actually to presume him innocent and maintain that presumption of innocence until you have heard all of the evidence. Is that a jury instruction-is that an instruction that you can follow?
BENNETT: I think it would be very difficult to follow, just having heard ...