State v. Sergey Buslayev

April 9 2013
DA 12-0118
IN THE SUPREME COURT OF THE STATE OF MONTANA
2013 MT 88STATE OF MONTANA,
Plaintiff and Appellee,
v.
SERGEY BUSLAYEV,
Defendant and Appellant.
APPEAL FROM: District Court of the Fourth Judicial District,
In and For the County of Mineral, Cause No. DC-2010-11
Honorable Robert L. Deschamps, III, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Wade Zolynski, Chief Appellate Defender, Garrett R. Norcott, Assistant
Appellate Defender, Helena, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, Pamela P. Collins, Assistant
Attorney General, Helena, Montana
Marcia Boris, Mineral County Attorney, Superior, Montana
Submitted on Briefs: March 13, 2013
Decided: April 9, 2013
Filed:
__________________________________________
Clerk
Justice Laurie McKinnon delivered the Opinion of the Court.
¶1 Sergey Buslayev appeals from a jury verdict in the Fourth Judicial District Court,
Mineral County, finding him guilty of negligent homicide and criminal endangerment.
Buslayev maintains that the District Court improperly admitted into evidence five photos
of the victim’s body. We affirm.
PROCEDURAL AND FACTUAL BACKGROUND
¶2 On December 17, 2008, Jerry Parrick, a volunteer with the West End Volunteer
Fire Department, responded to a call regarding an overturned vehicle at McGee Point on
westbound I-90, at mile marker 17 between Haugen and DeBorgia in Mineral County,
Montana. Parrick responded in his firefighter uniform and in his personal pickup.
Parrick’s pickup was equipped with emergency lighting. As rescue workers began their
efforts to extricate a family from an overturned vehicle, Parrick moved his vehicle to a
position that would establish a safety zone to alert oncoming traffic of the hazard and to
provide an area for rescue personnel to work. At the time of the emergency, snow was
falling, the Interstate was snow packed and slippery, and the temperature was five
degrees.
¶3 Parrick was inside his pickup, facing west, and parked on the shoulder of I-90 to
warn oncoming traffic of the accident. Buslayev, who was operating a commercial
tractor trailer, approached Parrick’s vehicle and began merging into the left lane.
Buslayev downshifted and used the brake which caused the tractor trailer to jackknife and
hit Parrick’s pickup. The force of the collision pushed the cargo area of the pickup into
the cab killing Parrick.
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¶4 An Information was filed on June 9, 2010, charging Buslayev with negligent
homicide and criminal endangerment. Prior to trial, the parties entered into the following
stipulation:
The parties hereby stipulate that Jerry Parrick died as a result of
injuries sustained when his vehicle was struck by a tractor-trailer driven by
the Defendant on December 17, 2008. You should consider this fact to be
proven; no other proof is required.
¶5 Buslayev filed a Motion in Limine requesting that five photos of the victim’s
body, State’s Exhibits 1-5, 1-6, 1-7, 1-8, and 1-10, be excluded from evidence at trial.
The photos depicted the victim’s body in his firefighter gear and how the victim was
positioned within the cab of his pickup following impact. The victim’s face was covered
with a cloth. Although Buslayev admits the photographs were not particularly gruesome
or gory, he argues that the photos were highly prejudicial in that they depicted death and
showed the victim in his firefighter gear. Buslayev maintains that the photos had no
probative value because they could not establish the speed of Buslayev’s truck and, in
light of the parties’ stipulation, were not probative of any issue the jury must decide.
¶6 The State argues that the photos were relevant to demonstrate that the victim’s
position within the cab was due to Buslayev’s excessive speed. The State also maintains
that the position of the victim’s body tended to show severe impact and excessive speed
which rendered Buslayev’s statements to law enforcement that he was traveling at a
slower speed incredible and not worthy of belief.
¶7 Both the State and Buslayev produced expert witnesses in crash reconstruction. A
primary consideration for the jury was whether Buslayev was traveling at an excessive
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rate of speed given the conditions of the roadway. The District Court noted that the
photos helped explain how the accident happened and that they were not “unduly
sensational.” The court granted Buslayev’s request as to one photo which depicted the
victim’s face, but allowed the State to use the remaining photos which depicted the
victim with a cloth over his head.
¶8 The sole issue on appeal is whether the District Court erred when it admitted the
photos of the victim into evidence.
STANDARD OF REVIEW
¶9 A district court’s decision regarding the admissibility of evidence will not be
reversed absent an abuse of discretion. State v. Montgomery, 2005 MT 120, ¶ 7, 327
Mont. 138, 112 P.3d 1014 (citing State v. Snell, 2004 MT 334, ¶ 17, 324 Mont. 173, 103
P.3d 503). In considering the admissibility of photographs, a district court must
determine whether the probative value of the photos outweighs any prejudicial effect.
State v. Dunfee, 2005 MT 147, ¶ 26, 327 Mont. 335, 114 P.3d 217 (citing M. R. Evid.
403; State v. Henry, 241 Mont. 524, 531, 788 P.2d 316, 320 (1990)). “This Court has
consistently held that photographs possessing instructive value are relevant and
admissible provided their probative value is not substantially outweighed by the danger
of unfair prejudice.” Dunfee, ¶ 26 (citing State v. Close, 267 Mont. 44, 47-48, 881 P.2d
1312, 1314 (1994)). “The test for abuse of discretion is whether the trial court acted
arbitrarily or exceeded the bounds of reason resulting in substantial injustice.” State v.
English, 2006 MT 177, ¶ 50, 333 Mont. 23, 140 P.3d. 454 (quoting State v. Kearney,
2005 MT 171, ¶ 12, 327 Mont. 485, 115 P.3d 214).
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DISCUSSION
¶10 The jury had to decide if Buslayev committed the criminal offense of negligent
homicide. A person commits the offense of negligent homicide “if the person negligently
causes the death of another human being.” Section 45-5-104(1), MCA. Section
45-2-101(43), MCA, defines the mental state of “negligently” as:
when the person consciously disregards a risk that the result will occur or
that the circumstance exists or when the person disregards a risk of which
the person should be aware that the result will occur or that the
circumstance exists. The risk must be of a nature and degree that to
disregard it involves a gross deviation from the standard of conduct that a
reasonable person would observe in the actor’s situation. “Gross deviation”
means a deviation that is considerably greater than the lack of ordinary
care.
¶11 Evidence having any tendency to make the existence of a fact that is of
consequence to an action more probable or less probable is relevant evidence.
M. R. Evid. 401. Further, all relevant evidence is generally admissible. M. R. Evid. 402.
A trial judge, faced with the potential admission of relevant but prejudicial evidence, is
required, pursuant to M. R. Evid. 403, to determine whether the probative value of the
evidence is substantially outweighed by the danger of “unfair prejudice.” As has been
often noted by this Court, probative evidence is frequently prejudicial to the defendant.
This does not, however, make it unfairly prejudicial and require its exclusion. State v.
Heuther, 284 Mont. 259, 265-66, 943 P.2d 1291, 1295 (1997); State v. Bieber, 2007 MT
262, ¶ 59, 339 Mont 309, 170 P.3d 444; State v. Schauf, 2009 MT 281, ¶ 42, 352 Mont.
186, 216 P.3d 740.
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¶12 The photos to which Buslayev objects depict the victim’s body and his position
within the interior of his cab. They are relevant in not only demonstrating the severity or
the strength of the impact, but are additionally relevant in depicting the circumstances
which establish Buslayev’s negligent conduct. As the District Court noted, the photos
assist in explaining the accident and illustrate what happened. Although Buslayev
stipulated that the victim died as a result of injuries sustained when his vehicle was hit by
Buslayev’s truck, the photos illustrate not only the impact, but, as specifically noted by
the District Court, that the truck jackknifed. The photos thus were probative of
Buslayev’s negligence and the manner in which the collision occurred.
¶13 The District Court also considered the prejudicial value of the photos and
determined that they were not “unduly sensational.” The District Court thus correctly
balanced the probative value of the photos against their prejudicial effect. Having found
the photos not “unduly sensational” and of explanatory or illustrative value, the District
Court allowed their admission.
¶14 The balancing of probative value against unfair prejudice is a matter within the
discretion of the trial court, and a ruling on the admissibility of photographs will not be
disturbed on appeal absent an abuse of discretion. State v. Devlin, 251 Mont. 278, 283,
825 P.2d 185, 188 (1991); State v. Austad, 197 Mont. 70, 83, 641 P.2d 1373, 1380
(1982). We hold that the District Court properly considered admission of the photos
under M. R. Evid. 403 and did not abuse its discretion in admitting them.
¶15 Affirmed.
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/S/ LAURIE McKINNON
We Concur:
/S/ MIKE McGRATH
/S/ MICHAEL E WHEAT
/S/ BRIAN MORRIS
/S/ JIM RICE
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