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Washington v. McAllister

as corrected.: March 12, 1991.

THE STATE OF WASHINGTON, RESPONDENT,
v.
BRUCE GORDON MCALLISTER, APPELLANT. IN THE MATTER OF THE PERSONAL RESTRAINT OF BRUCE GORDON MCALLISTER, PETITIONER



Shields, A.c.j. Munson and Thompson, JJ., concur.

Author: Shields

Bruce McAllister was convicted of vehicular homicide. He appeals; we reverse and dismiss due to insufficiency of the evidence.

On the evening of September 16, 1986, Mr. McAllister's wife, Nancy, and her 27-year-old daughter, Garnett Shelly, drove Mrs. McAllister's 1966 Volkswagen van to Ernie's Tavern. Mrs. McAllister and Ms. Shelly had conducted a yard sale earlier that day and had used the van to move various items. Mrs. McAllister was the last person to close the van's side doors at about 4 o'clock that afternoon. Because the van was old, the side doors were difficult to secure; however, the McAllisters had not had any trouble with the doors opening during travel in the 6 years they had owned the van.

Mrs. McAllister phoned Mr. McAllister and asked him to meet them at Ernie's. As Mr. McAllister had no transportation, at approximately 7:30 p.m. a friend drove him to the tavern after work. The three remained at Ernie's until 11 p.m. While there, the McAllisters drank beer; Mr. McAllister consumed approximately 4 1/2 glasses. Ms. Shelly drank several wine coolers.

Upon leaving the tavern, Mr. McAllister climbed into the driver's side of Mrs. McAllister's van. Mrs. McAllister and Ms. Shelly entered the van through the passenger door. Ms. Shelly crawled over the front seat and entered the back of the van. The back of the van had no seats or seatbelts. The

seats had been removed prior to the McAllisters' purchase of the van. Ms. Shelly had been a passenger and had driven the van on multiple occasions. She knew as a passenger "the only place to sit" was behind the driver's seat, so there was something "to hang on to."

As Mr. McAllister was driving home, he remembered he left his jacket at Ernie's. He turned left into a warehouse parking lot on the opposite side of the street in order to reverse the van's direction of travel, return to the tavern, and retrieve the jacket. Both Mr. and Mrs. McAllister testified they were traveling slowly when the turn was made. Mrs. McAllister testified the vehicle did not skid or fishtail, nor did the turn cause her to be thrown against the door. An eyewitness also stated it appeared the van was traveling 10 to 15 m.p.h., and the turn did not appear to put anyone in danger.

After navigating the turn, Mr. McAllister noticed the side doors of the van were open, and some restaurant grates, which were kept in the back of the van, had fallen out. He stopped the van and proceeded to enter the road to retrieve the grates, whereupon he discovered Ms. Shelly had fallen out of the van through the side doors and had hit her head on the road. Ms. Shelly died shortly thereafter. The autopsy indicated she died as a result of a blow to the back of her head.*fn1 Her blood alcohol level at the time of her death was .11 percent. Mr. McAllister was charged with vehicular homicide.

The jury returned a verdict of guilty. The first motion for arrest of judgment or new trial was filed April 27, 1987. This motion was apparently abandoned. Sentence and judgment were issued July 1, 1987. On July 30, Mr. McAllister filed his notice of appeal. On February 23, 1988,

Mr. McAllister's motion to stay the proceedings pending the outcome of State v. Ford, 110 Wash. 2d 827, 755 P.2d 806 (1988) and State v. Brayman, 110 Wash. 2d 183, 751 P.2d 294 (1988) was granted.*fn2 On November 9, 1988, with another attorney, Mr. McAllister moved again for relief of judgment and for new trial. His motion was based on a contention his trial counsel was surprised at trial, because the prosecution had failed to disclose it would use Officer Winkey as an expert accident reconstruction witness in violation of CrR 4.7. Mr. McAllister contended his own expert witness would testify the police officer had reconstructed the accident improperly. A hearing on the motion was held December 20, 1988. The trial judge denied the motion, noting that defense counsel did not request additional time to rebut at trial and the motion for new trial was not timely and was not adequately supported by evidence which would show the verdict was in error. On January 12, 1989, Mr. McAllister appealed from the denial of his second motion for new trial or arrest of judgment. On March 16, 1990, Mr. McAllister filed a personal restraint petition, contending: (1) he had ineffective assistance of counsel, because the prosecution was permitted to use Officer Winkey as an expert witness; and (2) the evidence concerning the result of the Breathalyzer test should be suppressed, because he was indigent and was advised additional testing would be at his own expense. Mr. McAllister's original appeal (cause 8762-0-III), his appeal from the denial of his motion for new trial (cause 9770-6-III), and his personal restraint petition (cause 10664-1-III) have been consolidated for review.

[1] Vehicular homicide, RCW 46.61.520, can be committed in three alternate ways. Mr. McAllister was charged with all three: (1) the driving of the vehicle while under the influence ...


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