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Washington v. Aamold

as corrected.: January 14, 1991.

THE STATE OF WASHINGTON, RESPONDENT,
v.
DARRELL LEE AAMOLD, APPELLANT



Winsor, J.*fn* Pekelis and Baker, JJ., concur.

Author: Winsor

Darrell Aamold appeals a judgment convicting him of second degree felony murder, vehicular homicide and fourth degree assault. We affirm.

On August 6, 1988, the car Aamold was driving went off the road and smashed into a house, killing an infant sleeping in a crib. Evidence at trial revealed that Aamold was driving at excessive speed at the time of the crash in an attempt to elude a marked police car that was chasing him. According to a blood sample taken 1 hour after the collision, Aamold had a blood alcohol content of .19 percent.

Aamold was charged with second degree felony murder, vehicular homicide and fourth degree assault.*fn1 The felony murder charge was predicated on Aamold's attempt to elude the pursuing police vehicle, a felony under RCW 46.61.024. A jury found Aamold guilty on all three charges.

[1] Aamold raises four issues on appeal. First, he contends that the trial court erred in denying his pretrial motion for appointment of an accident reconstruction expert. Under CrR 3.1(f), an indigent defendant is entitled to the assistance of an expert witness only if such services are necessary to an adequate defense. State v. Barnes, 58 Wash. App. 465, 472, 794 P.2d 52, review granted, 115 Wash. 2d 1022 (1990). Whether the services of an expert are "necessary" within the meaning of this rule is committed to the sound discretion of the trial court, reversible only on a showing of substantial prejudice. Barnes, 58 Wash. App. at 472.

In the present case, Aamold requested appointment of an accident reconstruction expert. Aamold argued that the expert was necessary for establishing his defense that the brakes on the vehicle he was driving failed when he attempted to apply them, and that the collision would not have occurred had the brakes not failed. Aamold's argument must fail. Expert testimony to support Aamold's defense was available to him. At the hearing on Aamold's motion to appoint an expert, the prosecutor stated that a man by the name of Bob Briton, a private consultant, had examined the vehicle and had concluded that only one of

the four brakes was "legal" at the time of the collision. The prosecutor also stated that Mr. Briton had prepared a report on the accident and was available and willing to testify for the defense.

[2] Although defense counsel made use of the information in Mr. Briton's report to cross-examine the State's accident reconstruction expert, defense counsel chose not to use Mr. Briton further. Defense counsel never explained to the trial court why Mr. Briton's services would be inadequate. Therefore, we cannot say that the trial court abused its discretion in denying Aamold's request for appointment of an accident reconstruction expert. Cf. State v. Anderson, 33 Wash. App. 517, 519, 655 P.2d 1196 (1982) (trial court's refusal to appoint expert not reversible error where defendant made no offer of proof regarding the necessity of additional expert testimony and the trial court found that additional evaluations and reports by experts would be cumulative).*fn2

Aamold's second contention is that the trial court erred in denying his motion to dismiss the felony murder charge. He argues that a well established rule of statutory construction as well as the constitutional guaranty of equal protection prevent him from being lawfully charged with both vehicular homicide under RCW 46.61.520 and felony murder under RCW 9A.32.050(1)(b).

[3, 4] Aamold's statutory construction argument is based on the rule that if an act is ...


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