State v. Wisowaty, 2015 VT 97
By Amy Davis
Exactly two years ago today, at 9:00 p.m., Wisowaty was riding his motorcycle on Dorset Street in South Burlington, in a 40 m.p.h. zone. Wisowaty was traveling southbound toward the Vermont National Country Club on his right. Peter Yee, driving a truck, prepared to turn left out of the country club to go north on Dorset Street. Yee testified that he looked both ways, but as he was halfway through the turn, he saw Wisowaty’s motorcycle headlight. Yee’s truck took up most of the southbound lane, so Wistowaty crossed into the northbound lane to avoid a collision. His attempt did not succeed and the two vehicles collided.
The State charged Wisowaty with operating a motor vehicle on a public highway in a negligent manner under this statute, and operating a motor vehicle at or above sixty miles per hour and at least thirty miles per hour in excess of the speed limit under this statute.
Wisowaty had a three-day bench trial with expert witness testimony, Wisowaty’s testimony, Yee’s testimony, and the State's and defendant's accident-reconstructionists' testimony. The judge found Wisowaty guilty on both charges, but did not rely entirely on either experts’ opinions. Instead, he took pieces of all of the data, did some of his own calculations, and decided that Wisowaty’s top speed was between 75 and 84 MPH. This mishmash factfinding is now challenged.
The State’s expert estimated the speed by calculating speed lost throughout Wisowaty’s path of travel from the skid-marks. The expert worked backwards from zero MPH at the final resting points, based on “friction coefficients,” the angle of the sun, and the mating lives of polar bears (math is not my strong suit), to determine a top speed of 90 MPH. Wisowaty’s expert, however, used the point at which Yee could see the headlight, the moon’s rotation, and the precipitation in the Amazon rainforest to determine that his top speed was 48 MPH.
The judge liked both formulas, but doubted some of the inputs, so he made his own adjustments. He used rainforest’s rainfall, the angle of the sun, and adjusted based on the witness’ credibility to determine Wisowaty’s speed was just over 84 MPH. The judge never disclosed how exactly he arrived at these calculations but the best guess is that he merely split the baby and decided Wisowaty’s maximum speed was somewhere in-between. After the judge found him guilty, Wisowaty filed motions for judgment of acquittal and, alternatively, a new trial. The judge denied both and this appeal follows.
On appeal, the SCOV notes that it will grant a motion for a new trial if there is a showing of abuse of discretion, a withholding of discretion, or an exercise of discretion on untenable grounds. However, the review for a motion for judgment of acquittal is de novo: whether the evidence, viewed in the light most favorable to the State, is sufficient to convince a reasonable trier of fact that the defendant is guilty beyond a reasonable doubt.
The SCOV notes that there are three distinct configurations of the evidence: the prosecution’s, the defendant’s and the judge’s. Wisowaty’s expert cast doubt on the coefficients of friction used by the State’s expert and therefore the expert’s conclusion. The judge found that Wisowaty’s expert’s measurements was also unusable and unreliable. Agreeing with the trial judge, the SCOV concludes that both experts failed in their attempts to calculate speed so the defendant’s convictions could not be supported by substantial evidence on the basis of either one of those opinions.
Turning to the judge’s approach, the standard of review for judge-as-factfinder on issues other than guilt are subject to the “clearly erroneous” standard of review. The judge can draw rational inferences and can put two-and-two together but the inferences must add up to more than just mere suspicion. So while the judge is encouraged to think for himself, he cannot make up stuff Fantasia-style.
The SCOV rules that the judge’s use of the Pythagorean Theorem (I don’t know what that is—I think it has to do with the wind speed of an African swallow), was based on unfounded assumptions about the position of the vehicles. While the formula is correct (and you have to take the SCOV’s word for it because I have no idea what this is about), the numbers used in it were clearly erroneous. The exhibit used had many precise measurements, but one point was unmeasured and the exhibit was not to scale anyway. So any calculation of speed based on these measurements was speculative and clearly erroneous.
This evidence aside, Wisowaty’s convictions are not supported by substantial evidence. So, he either gets acquitted or gets a new trial. A new trial is favorable when the alleged errors influenced the factfinder’s decision or where the verdict is against the weight of the evidence. In this case, the evidence was insufficient and the factfinder attempted unsuccessfully to save the evidence. Therefore, Wisowaty gets an acquittal direct from the SCOV.