Not for Publication – Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County No. CR2011-161613-001 The Honorable Harriett E. Chavez, Judge, Retired
Arizona Attorney General's Office, Phoenix By Alice Jones Counsel for Appellee
The Nolan Law Firm, Mesa By Todd E. Nolan, Cari McConeghy Nolan Counsel for Appellant
Judge Michael J. Brown delivered the decision of the Court, in which Presiding Judge Samuel A. Thumma and Judge Patricia A. Orozco joined.
¶1 Julia Alean Gosney appeals from her convictions for aggravated assault using a motor vehicle and leaving the scene of a serious injury accident. Finding no reversible error, we affirm.
¶2 The victim was riding a bicycle southbound on Higley Road when he was struck by the car Gosney was driving. In the vicinity of the collision, Higley Road changes from three lanes to two and the lane closest to the sidewalk becomes a right-turn only lane before the intersection with Diamond Avenue. Several hundred feet before the intersection, a road sign notifies motorists that through traffic must merge left. The bike lane in which the victim was riding temporarily ends at Diamond Avenue, where it changes from two solid lines to a broken line, alerting bicyclists the bike lane is ending. The bike lane then resumes after Diamond Avenue, and is located next to the curb.
¶3 Gosney struck the victim's bicycle from behind at the intersection with Diamond Avenue as she was attempting to merge left from the outside lane. A witness to the collision, P.B., followed Gosney's vehicle. After P.B repeatedly flashed his headlights, Gosney turned into a parking lot. P.B. notified police of the accident and remained with Gosney until police officers arrived.
¶4 Prior to interviewing Gosney at the police station, Mesa police officer Martinez advised Gosney of her rights under Miranda v. Arizona, 384 U.S. 436 (1966). He noticed Gosney had "bloodshot watery eyes, her face was flush[, ] and . . . her speech was slurred." When Martinez asked her how much she had had to drink, Gosney said "one shot of rum and coke at four p.m." Gosney agreed to perform field sobriety tests and Martinez noticed cues of intoxication during each test. Pursuant to a search warrant, two vials of Gosney's blood were drawn at 8:56 p.m. and two more at 9:56 p.m. Later analysis of one of the blood samples revealed a blood alcohol concentration (BAC) of .192. Gosney was charged with one count of aggravated assault and one count of leaving the scene of a serious injury accident.
¶5 A jury found Gosney guilty as charged and determined that the aggravated assault was a dangerous offense. The trial court sentenced Gosney to a mitigated term of five years' imprisonment on the aggravated assault charge, and placed her on two years' supervised probation for leaving the scene beginning upon the completion of her prison sentence. Gosney timely appealed.
A. Improper Speed Testimony
¶6 Gosney moved to suppress all evidence regarding the speed of her vehicle, arguing the speed calculation was not based on valid scientific principles or of the type reasonably relied upon by experts in the field. At a hearing on pretrial motions, the parties stipulated that there would be "no expert testimony regarding a calculation of speed." The following exchange then occurred:
[Defense Counsel]: And just to clarify, the only references to speed permitted would be from a civilian witness who can say, well, I was going a certain speed. . . . [A]re you [going] to permit the civilian witness to say, well, if I was going 45, [Gosney] had to be going 60 or 65 . . . or whatever based on their guess?
The Court: The only evidence that the Court would allow would be any witness who had an observation of speed and would testify as to [that] based on their own observations subject to cross-examination, but the Court's not [going to] allow guesses or speculation. That would not be relevant, but the parties agree to that; is that correct?
[Defense Counsel]: Yes.
[Prosecutor]: Yes, Judge.
The Court: So that's granted.
¶7 At trial, witness T.B. testified that she was driving home from work and "saw a car coming up to the side of me two lanes over in a lane that was ending and speeding past us, . . . then I saw the bicyclist just at the edge of the bicycle [lane] going into the bicycle [lane] and the car ended up hitting him." When the prosecutor asked T.B. how fast she was driving, T.B. replied "probably 45 to 50 at the most." The prosecutor then asked T.B. whether she could estimate how fast the car coming up behind her was going. Defense counsel objected, arguing T.B. should not be permitted to estimate Gosney's speed because she was not qualified to do so and any number T.B. stated would be a "pure guess." The prosecutor countered that T.B. could testify about her own perceptions, that lay persons had the ability to estimate speed based on their perceptions, and that T.B could be fully cross-examined about her perceptions. The trial court ruled that T.B. could not "estimate speed" unless ...