Present: All the Justices
JACKIE G. GREENWAY, JR.
OPINION BY JUSTICE LAWRENCE L. KOONTZ, JR.
v. Record No. 961996 JUNE 6, 1997
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
In a bench trial, Jackie G. Greenway, Jr. was convicted in
the Circuit Court of Prince George County on two counts of
involuntary manslaughter arising out of a fatal motor vehicle
accident. On appeal, Greenway asserts that the trial court erred
in admitting the opinion testimony of a 12-year-old witness
concerning the speed of Greenway's vehicle immediately prior to
the accident. Greenway further asserts that the evidence was not
sufficient to sustain a finding of criminal negligence necessary
to support his convictions for involuntary manslaughter.
Background
Because the Commonwealth prevailed in the trial court, we
will view the evidence and all reasonable inferences drawn
therefrom in the light most favorable to the Commonwealth. Parks
v. Commonwealth, 221 Va. 492, 498, 270 S.E.2d 755, 759 (1980),
cert. denied, 450 U.S. 1029 (1981).
At approximately 11:00 a.m. on May 29, 1994, the Sunday of
Memorial Day weekend, Greenway drove a blue Ford Bronco south in
Prince George County on Interstate 95 in heavy traffic. At
trial, Thomas Hawick testified that he observed Greenway "coming
up behind me real fast" in the left southbound lane of the
Interstate. Hawick, who was driving his vehicle at the 65 mile
per hour speed limit, estimated the Bronco's speed at "eighty,
ninety miles an hour . . . [m]aybe faster." Hawick believed that
Greenway's vehicle would strike the rear of his vehicle and so he
"mashed on the gas."
According to Hawick, Greenway then pulled into the right
lane of the Interstate, passed Hawick's vehicle, and "plowed into
the vehicle in the right lane." This vehicle, a maroon Bronco,
"flipped twice, and then it just shot right into the woods."
Kimberly Dawn Wray, the driver of the maroon Bronco, died at the
scene of the accident; Angela Nicole Yerovsek, a passenger in the
maroon Bronco, died at the Medical College of Virginia Hospital
emergency room where she was transported for treatment of her
injuries. Hawick further testified that following the collision
Greenway then "weaved to the left, in the left lane, and he went
on the shoulder a little bit, then he got back in the right lane,
and then he was going real fast."
Rhonda Thacker testified that on the morning of the accident
she was stopped for a red light on the Route 301 overpass of
Interstate 95. Justin Thacker, her 12-year-old son, called her
attention to Greenway's vehicle, saying that it was going to hit
the maroon Bronco. Rhonda Thacker estimated Greenway's speed at
"a minimum of eighty-five" miles per hour. She further testified
that Greenway's vehicle "was like in the middle . . . not in one
lane or the other, it was more like in the middle of the white
[line] that divides the two [lanes]."
Justin Thacker testified that he observed Greenway's vehicle
as it crossed under the overpass "going pretty fast." The
Commonwealth's Attorney then asked Justin if he had "been in cars
all [his] life as a passenger." Justin stated that he had. The
Commonwealth's Attorney then asked Justin if he knew "how fast or
do you have an opinion of how fast [Greenway's] vehicle was
going?" Justin gave a contradictory answer, stating, "No, sir, I
don't. He was going, say, ninety."
Greenway's counsel then objected, asserting that Justin was
incompetent to testify as to the speed of the vehicle.
Greenway's counsel argued that "a 12-year-old boy, who is not
even eligible and won't be for four more years to even have a
driver's license, [could not] estimate speed." The Commonwealth
responded that such evidence was "totally admissible. The weight
it would be given is for the Court to determine." The trial
court ruled that Greenway could "challenge it on cross" and
permitted the Commonwealth to continue its examination.
In response to a question from the Commonwealth, Justin
confirmed his estimate of Greenway's speed at ninety miles per
hour. He further testified that Greenway's vehicle was "swerving
. . . before it got up close to the [maroon] Bronco it would
. . . try to get in that lane then come back, then go and then
come back, and then it just hit it." On cross-examination,
Greenway's counsel asked Justin to describe in detail the
swerving motion of Greenway's vehicle, but did not further
question Justin on the issue of speed or the basis for his
estimate of the speed of Greenway's vehicle.
Additional evidence showed that approximately half a mile
from the accident scene, Greenway's vehicle left the Interstate,
crossed a gully and service road, entered the front yard of a
private residence, and struck a tree. When interviewed at the
scene, Greenway told police investigating the accident that he
believed he had hit Hawick's vehicle which "got squirrly," and
when Greenway tried to stop "he must have hit the accelerator"
instead. Although stating that he was tired and had been awake
since 3:30 a.m., Greenway did not assert at that time that he had
fallen asleep while driving. However, when subsequently
interviewed by a State Police trooper at Southside Regional
Hospital, Greenway asserted that he had struck Hawick's vehicle
after falling asleep while driving.
At the conclusion of the Commonwealth's evidence, Greenway
made a motion to strike, asserting that the evidence was
consistent with the assertion that Greenway had fallen asleep
while driving. The trial court ruled that "on a prima facie
standard" the evidence showed that Greenway was able to control
his vehicle to avoid a collision with Hawick's vehicle. Based
upon that evidence, the trial court rejected the theory that
Greenway had fallen asleep.
Greenway called only one witness, Robert D. Maclin, who
testified that he saw Greenway's vehicle go "out to pass" and
strike the maroon Bronco. Although he could not give an opinion
of the speed of Greenway's vehicle, Maclin stated that he was
travelling fifty-five to sixty miles per hour and did not
remember being passed by Greenway or any other vehicle.
The trial court overruled Greenway's renewed motion to
strike, holding that Maclin's testimony failed to "shed any
light" on the question whether Greenway had fallen asleep.
Reviewing the evidence of Greenway's excessive speed, erratic
driving, his ability to avoid hitting Hawick's vehicle, and his
flight from the accident scene, the trial court convicted
Greenway of two counts of involuntary manslaughter. After
receipt of a pre-sentence report, the trial court sentenced
Greenway to consecutive seven-year prison terms for the
convictions.
Greenway appealed his convictions to the Court of Appeals,
challenging, inter alia, the trial court's admission of Justin's
testimony concerning Greenway's speed and the sufficiency of the
evidence to support the finding that Greenway's conduct amounted
to criminal negligence. In an unpublished order, the Court of
Appeals refused Greenway's petition for appeal, holding that
Justin's testimony was properly admitted under Moore v. Lewis,
201 Va. 522, 525, 111 S.E.2d 788, 790 (1960). The Court further
held that the evidence taken in the light most favorable to the
Commonwealth was adequate to sustain the trial court's finding of
criminal negligence. King v. Commonwealth, 217 Va. 601, 607, 231
S.E.2d 312, 316 (1977). We awarded Greenway this appeal.
Competency of Child Witness to Testify Concerning Speed
Our decisions follow the mainstream of authority which holds
that expert knowledge is not required for a witness to be
considered qualified to make an estimate of speed. As we said in
Moore:
"An estimate of the speed at which an automobile was
moving at a given time is generally viewed as a matter
of common observation rather than expert opinion, and
it is accordingly well settled that any person of
ordinary experience, ability, and intelligence having
the means or opportunity of observation, whether an
expert or nonexpert, and without proof of further
qualification may express an opinion as to how fast an
automobile which came under his observation was going
at a particular time. The fact that the witness had
not owned or operated an automobile does not preclude
him from so testifying. Speed of an automobile is not
a matter of exclusive knowledge or skill, but anyone
with a knowledge of time and distance is a competent
witness to give an estimate; the opportunity and extent
of observation goes to the weight of the testimony."
Moore, 201 Va. at 525, 111 S.E.2d at 790 (citations omitted).
However, "[i]n order to be competent to testify on the
subject the witness must have had a reasonable opportunity to
judge the speed of the automobile." Id., 111 S.E.2d at 791.
Accordingly, before any witness, regardless of age or driving
experience, is permitted to offer an opinion concerning the speed
of a vehicle, the record must show both that the witness has
sufficient knowledge of time and distance to determine speed, and
that the witness observed the vehicle in motion over a period of
time and distance adequate to make that determination. Once
these threshold qualifications are established, the witness'
degree of knowledge and the duration and quality of the witness'
observations become matters of credibility, not competence.
Thus, in Moore we held that the testimony of an adult witness who
was just learning to drive and had many years experience of
automobile travel as a passenger "was admissible for such weight
as the jury thought it should have." Id.
We have not previously considered the standard of competency
required for a child witness to offer an opinion as to the speed
of a vehicle. In Meade v. Meade, 206 Va. 823, 147 S.E.2d 171
(1966), we did not reach the question whether a 14-year-old boy
was competent to offer an opinion as to a vehicle's speed because
the evidence showed that he had not actually seen the vehicle in
motion prior to the accident, but had only heard the sound of the
vehicle. Accordingly, the boy's lack of a reasonable opportunity
to judge the vehicle's speed, not his youth, was the basis for
finding his testimony incompetent. Id. at 828-29, 147 S.E.2d at
175.
As a general proposition, however, we have long held that a
child is competent to testify if he or she possesses the capacity
to observe, recollect, communicate events, and intelligently
frame answers to the questions asked of him or her with a
consciousness of a duty to speak the truth. Cross v.
Commonwealth, 195 Va. 62, 64, 77 S.E.2d 447, 449 (1953).
Similarly, we have held that:
The competency of a child as a witness to a great
extent rests in the sound discretion of the trial judge
whose decision will not be disturbed unless the error
is manifest. It is the duty of the trial judge to
determine such competency after a careful examination
of the child. In deciding the question the judge must
consider the child's age, his intelligence or lack of
intelligence, and his sense of moral and legal
responsibility.
Hepler v. Hepler, 195 Va. 611, 619, 79 S.E.2d 652, 657 (1954).
In the present case, it was not asserted that the child
witness did not have a reasonable opportunity to observe the
movement of Greenway's vehicle prior to the accident, or that he
could not truthfully recollect or communicate what he had
observed. To the contrary, the defense relied upon Justin's
testimony that Greenway's vehicle was swerving to support its
argument that Greenway had fallen asleep while driving.
Greenway's only objection was that Justin was not competent to
estimate speed because he was not himself a driver and, thus,
lacked sufficient knowledge of time and distance to form a
reliable estimate of speed.
Prior to eliciting Justin's estimate of the speed of
Greenway's vehicle, the Commonwealth's Attorney only asked Justin
whether he had "been in cars all [his] life as a passenger."
This was the extent to which the Commonwealth attempted to
establish that Justin had sufficient knowledge of time and
distance as these concepts relate to a determination of the speed
of a motor vehicle. When asked whether he knew or had an opinion
as to the vehicle's speed, Justin stated that he did not, but
then offered an estimate of ninety miles per hour. While
arguably Justin merely intended to say that he could not be sure
of the exact speed, his testimony was at best equivocal as to how
he arrived at his estimate.
Upon this record, we cannot say that the Commonwealth laid a
foundation that Justin had sufficient knowledge of time and
distance to give a reliable estimate of the speed of Greenway's
vehicle. Accordingly, it was error to admit that evidence. This
error, however, does not require reversal if the error was
harmless.
Improper admission of evidence does not create reversible
error when it is merely cumulative of other competent evidence
properly admitted. Freeman v. Commonwealth, 223 Va. 301, 316,
288 S.E.2d 461, 469 (1982). Contrary to an assertion made during
oral argument on appeal by Greenway's counsel, Justin's testimony
was not the sole basis upon which the trial court could have
determined the issue of Greenway's speed. Hawick testified that
Greenway's speed was "ninety miles an hour . . . [m]aybe faster,"
and Justin's mother estimated Greenway's speed at a minimum of
eighty-five miles per hour. This evidence supports the trial
court's finding that Greenway was travelling at an "extremely
high speed." Thus, the evidence improperly admitted was merely
cumulative and did not deprive Greenway of a fair trial. See
Code § 8.01-678; Rodriguez v. Commonwealth, 249 Va. 203, 208, 454
S.E.2d 725, 728 (1995).
Evidence of Criminal Negligence
In King, 217 Va. at 607, 231 S.E.2d at 316, we defined
involuntary manslaughter in the operation of a motor vehicle as
an "accidental killing which, although unintended, is the
proximate result of negligence so gross, wanton, and culpable as
to show a reckless disregard of human life." Under this
definition, involuntary manslaughter in the operation of a motor
vehicle in this Commonwealth "should be predicated solely upon
criminal negligence proximately causing death." Id.
Greenway contends that the Commonwealth's evidence failed to
establish that he had actual or constructive knowledge that his
actions would place the lives of others in danger, either because
the accident resulted from his falling asleep while driving or
because his negligence was predicated solely upon excessive
speed. We disagree.
The trial court expressly found that the evidence did not
support a finding that Greenway had fallen asleep while driving.
Rather the trial court found that Greenway, though driving
erratically, was making a conscious effort to maneuver his
vehicle through traffic. Since the record supports this finding
of fact, it will be upheld on appeal. Code § 8.01-680.
Accordingly, we turn to Greenway's contention that the trial
court's determination of criminal negligence was improperly
predicated solely upon his driving at an excessive speed.
What distinguishes a speeding violation from the
misdemeanor of reckless driving, and the misdemeanor
from the felony of involuntary manslaughter, is the
likelihood of injury to other users of the highways.
And the degree of the hazard posed by a speeding
automobile depends upon the circumstances in each case.
Mayo v. Commonwealth, 218 Va. 644, 648, 238 S.E.2d 831, 833
(1977).
Greenway's contention is based on the presumption that a
speed of eighty-five to ninety miles per hour on an interstate
highway, while constituting civil negligence, does not rise to
the level of a criminal disregard for the safety of others. The
fallacy of his contention is that it views speed in isolation
while ignoring the attendant circumstances of the accident, of
which speed was merely a factor.
In addition to Greenway's excessive speed, the evidence
showed that Greenway was weaving through heavy holiday weekend
traffic, straddling the lane markers, that he was aware of a
near-miss of another motor vehicle, and that he continued
shifting lanes abruptly rather than adjusting his speed to the
flow of traffic. Viewed in the context of these circumstances,
the evidence supports the trial court's finding that Greenway's
actions showed a reckless disregard for human life constituting
criminal negligence sufficient to support the convictions for
involuntary manslaughter.
For these reasons, we will affirm the judgment of the Court
of Appeals.
Affirmed.