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Richard Allen Tucker v. the State of Wyoming

December 10, 2010


Appeal from the District Court of Fremont County The Honorable Marvin L. Tyler, Judge

The opinion of the court was delivered by: Burke, Justice.

Before KITE, C.J., and GOLDEN, HILL, VOIGT, and BURKE, JJ.

BURKE, J., delivers the opinion of the Court; VOIGT, J., files a special concurrence.

NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be made before final publication in the permanent volume.

[¶1] Appellant, Richard Allen Tucker, challenges his convictions on two counts of aggravated vehicular homicide, in violation of Wyo. Stat. Ann. § 6-2-106(b)(i) (LexisNexis 2007). Appellant contends the district court erred when it allowed the investigating officer's testimony to be admitted as the opinion of a lay witness, and that there was insufficient evidence at trial to support the elements of aggravated vehicular homicide. He also asserts that the district court's imposition of consecutive sentences violated his Fifth Amendment right to be free from double jeopardy and his Eighth Amendment right against cruel and unusual punishment. We find no prejudicial error and affirm the convictions.


[¶2] Mr. Tucker presents the following issues:

1. Whether the district court improperly admitted lay testimony by a law enforcement officer which was in fact expert testimony?

2. Whether the evidence at trial was insufficient to prove the elements of aggravated vehicular homicide?

3. Whether the sentence imposed is in violation of the law and the United States Constitution and the Constitution of the State of Wyoming?

The State frames the issues as follows:

1. Did the district court abuse its discretion when it admitted the portion of Trooper Badura's testimony challenged in the motion for new trial?

2. Was there sufficient evidence of Appellant's guilt?

3. Were Appellant's consecutive sentences illegal?


[¶3] On December 20, 2008, at approximately 6:00 p.m., Appellant, his girlfriend, K.P., and her son, Z.P., arrived at the Lucky Five Bar in Shoshoni, Wyoming. At around 8:15 p.m., the bartender stopped serving Appellant alcohol due to his level of intoxication. The bartender offered to find someone to drive Appellant home but Appellant refused. At approximately 9:15 p.m., Appellant asked the bartender for help starting his truck, an extended-cab Dodge Dakota, because he believed that the battery was dead. The bartender then asked another patron, a mechanic who had just arrived at the bar, to help Appellant with his vehicle.

[¶4] The mechanic, Appellant, a nearby female patron, and K.P. then went outside to attempt to start Appellant's truck. At this point, Z.P. was asleep in the backseat of the truck. The mechanic pulled his vehicle nose-to-nose with Appellant's truck but, upon further inspection, determined that the truck would not start because the clutch had not been pressed. During this time, Appellant was in the driver's seat attempting to start the truck, K.P. was in the passenger seat with her head against the passenger door, and Z.P. was asleep in the backseat. After it was determined that the truck did not need a jump, Appellant got out of the truck momentarily while the female patron got into the driver's seat, pushed in the clutch, and started the truck. Appellant got back into the driver's seat and the female patron saw Appellant drive away.

[¶5] Approximately seven miles from Shoshoni, the truck left the road, flipped over, and crashed into a tree. K.P. and Z.P. were ejected from the vehicle and were found dead at the scene of the accident. Appellant, however, exited the vehicle of his own accord and was treated at Riverton Memorial Hospital for a concussion and for abrasions*fn1 on various areas of his body. Appellant's blood-alcohol content measured .26% approximately one and a half hours after the crash. A subsequent toxicology analysis revealed that approximately three hours after the crash, K.P.'s blood-alcohol content was .28% and Z.P.'s blood-alcohol content was .27%.

[¶6] Although most of the windows in the truck were destroyed, the driver's side of the vehicle had relatively little damage and the driver's side window and extended-cab window remained intact. Blood samples were collected from the passenger's side dashboard, door-frame, and extended-cab window, and from the front and rear windshields. The blood samples collected from the passenger's side extended-cab window and the passenger's side door frame were consistent with the DNA profile of Z.P.

[¶7] Evidence produced at trial indicated that the amount of time that elapsed from Appellant's departure from the Lucky Five Bar and the accident was less than ten minutes. The time frame was established by the fact that, just a few blocks from the bar, the truck was recorded as it passed a gas station surveillance camera at 9:45 p.m. and the fact that the passerby who discovered the accident called the police at 9:54 p.m. The officer who responded to the call testified that it would take approximately six minutes, if driving the speed limit, to travel from the Lucky Five Bar to the scene of the accident.

[¶8] Prior to trial, the district court issued a case management order instructing the parties to designate "[a]ll witnesses, including expert witnesses," and to provide a summary of their testimony. In response, the State filed a witness list designating the investigating officer as a witness, and provided the following description of the officer's proposed testimony:

Trooper Badura will testify concerning all aspects of his investigation of the events and circumstances relevant to this case including his observations of the victims and defendant, interviews conducted with the defendant and witnesses, observations he made at the scene, and observations he made of defendant's vehicle, including the collection of potential evidence on or within defendant's vehicle by the Wyoming State Crime Lab. (See reports)

The State also provided a copy of the officer's traffic investigation report to defense counsel. In that report, the officer stated that "[e]vidence leads this investigator to believe Richard Tucker was driving at the time of the crash . . . ." The State did not designate the officer as an expert witness.

[¶9] Shortly before trial, Appellant filed a "Motion to Exclude State's 'Expert,'" which sought to prevent the investigating officer from testifying as an expert. The court granted the motion "in part" but also indicated that the officer could testify "in accordance with his designation."

[¶10] During trial, and prior to the officer's testimony, Appellant again brought the matter to the attention of the court in an attempt to limit opinion testimony from the officer. Counsel for the State advised the court: "Judge, the trooper is not testifying as an expert and I don't know how many times or different ways I can say it." The court, after reviewing the State's witness designation, commented: "I don't read [the designation] to indicate that the trooper is offering any sort of an expert opinion about anything, I don't believe that the trooper would be qualified under this designation to offer expert opinion . . . ." Before the hearing concluded, defense counsel attempted to clarify:

[DEFENSE COUNSEL]: Your Honor, just so it's absolutely clear, so Mr. -- I'm sorry, Trooper Badura will not be stating that Mr. Tucker was driving the vehicle as his narration in the report says, before the State does that they need to notify the Court.

[PROSECUTION]: Judge, that's an ultimate question and I'm not going to ask him that.

COURT: That would be in the area of an expert opinion, an expert is qualified to offer opinions about the ultimate issues, I don't think Trooper Badura's designation qualifies him as being able to offer that kind of opinion whether he possesses the qualifications or not.

[¶11] Before the officer took the stand, another hearing was held concerning the anticipated testimony. Counsel for the State indicated that the officer would provide lay opinion testimony pursuant to W.R.E. 701 regarding the positions of the occupants of the vehicle at the time of the crash. It was the officer's opinion that Appellant was driving. Defense counsel objected, contending that the opinion testimony was not lay opinion testimony and was not admissible under W.R.E. 701. The court stated that it would limit the officer's testimony to the matters described in the witness designation and that it would give a curative instruction to the jury in the event that the officer's testimony crossed into the realm of expert opinion.

[¶12] During the State's examination of the officer, the prosecution asked him to describe his training in accident investigations and his experience in investigations involving ejections. The officer stated that he had taken two accident investigation courses and had investigated roughly 50 accidents involving ejections. The State also asked the officer to give his opinion as to where the victims were seated prior to being ejected from the vehicle. The officer testified that "[b]ased on the factors of the statements I have taken, the victims at the scene, their injuries, the blood splatters, the blood coming from the back and the side, the evidence taken for DNA, my opinion is that [Z.P.] was in the back seat, his head went through the passenger side." The officer further testified that "[b]ased on my opinion, I believe that [Z.P.] was in the back passenger side and that [K.P.] was in the passenger's side, the front passenger's side seat." Finally, when asked whether he thought the accident was influenced by alcohol impairment, the officer testified that "[m]y opinion based on the scene is that whoever was driving, out of the three occupants of the vehicle, they were all intoxicated, alcohol involvement [sic] impairment was a factor in the crash."

[¶13] Defense counsel repeatedly objected to the State's questions regarding the officer's training and experience, and to the officer's testimony regarding the position of the occupants of the vehicle, on the grounds that he was stating opinions that only an expert witness could provide. In response, the court instructed the jury several times that the investigating officer could not provide expert opinions and as to how much weight, if any, should be given to opinion testimony from a witness who is not an expert witness.

[¶14] Ultimately, the jury found Appellant guilty on both counts of aggravated vehicular homicide. Appellant was subsequently sentenced to 12 to 20 years for each conviction, with the sentences to be served consecutively.


1. Lay Opinion Testimony

[ΒΆ15] Appellant contends that the officer's opinion as to the respective positions of the occupants of the vehicle before the crash was not properly admitted as lay opinion testimony. He argues that the testimony should have been excluded because it was not based solely on the officer's own perceptions and ...

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