Opinion
NOT TO BE PUBLISHED
Superior Court County of Santa Barbara No. 1108284, George C. Eskin, Judge
Dennis P. Riordan and Donald M. Horgan; Riordan & Horgan, for Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, Douglas L. Wilson, Deputy Attorney General, for Plaintiff and Respondent.
YEGAN, J.
On the night of August 22, 2003, Joseph Cohn walked along the shoulder of Hot Springs Road in Montecito with his wife, Laurel Rose, and two of their friends, Aaron Lieberman and Carol Spungen. A Ford Explorer driven by appellant, Maureen Martino McDermut, collided with the group, killing Cohn and injuring Spungen. McDermut did not stop but continued driving to her house on El Rancho Road, about one mile away.
McDermut appeals her conviction, by jury, of misdemeanor vehicular manslaughter without gross negligence (Pen. Code, § 192, subd. (c)(2)), two felony counts of leaving the scene of an injury accident (Veh. Code, § 20001, subd. (a), (b)(2)), and the traffic infraction of making an unlawful turning motion. (Veh. Code, § 22107.) The trial court suspended the execution of a three-year state prison sentence and granted probation on the condition, among others, that appellant serve 365 days in county jail. Appellant contends the trial court abused its discretion when it admitted into evidence a photograph purporting to demonstrate Mr. Cohn's position on the hood of appellant's SUV and a videotape, filmed at night, of the route appellant might have driven home that night. She further contends the prosecuting attorney engaged in prejudicial misconduct during his closing argument. We affirm.
All statutory references are to this code unless otherwise stated. Vehicular manslaughter without gross negligence is a misdemeanor and a lesser included offense of the charged offense, vehicular manslaughter with gross negligence, a felony. (§ 192, subd. (c)(1).)
Facts
Joseph Cohn and his wife, Laurel Rose, attended the annual Art Walk in Montecito with their friends, Lieberman and Spungen, who live on Hot Springs Road. At about 8:45 p.m., the group walked back to the Lieberman-Spungen house along Hot Springs Road. Hot Springs Road does not have a sidewalk, but it does have a shoulder and a bicycle lane. The bicycle lane is at least four feet wide and is separated from the traffic lane by a solid white line painted on the pavement with a reflective material.
There are no streetlights in the area of the collision and there was no moon that night. It was very dark. The pedestrians talked about how dark it was and how the walk was dangerous. They walked single file, as far from the traffic lane as possible. Lieberman was first in line because he was wearing dark clothing. Spungen followed him, carrying a small, pinpoint flashlight. Rose followed Spungen. She walked with one hand behind her back, holding Cohn's hand. Cohn was at the back of the line because he was wearing relatively light-colored clothing. Rose testified that she suddenly heard a very loud noise and felt a rush of air. Lieberman and Spungen testified that they also heard a very loud noise. Rose realized, almost simultaneously, that she was no longer holding Cohn's hand. She heard Spungen scream and saw her on the ground but could not find Cohn. Then, she saw him lying on the pavement with his head in the bike lane and his feet in some plants growing alongside the road. A passing motorist stopped and called for an ambulance. Cohn died later that night.
Appellant testified that she had been working at the Art Walk. She drank only a few sips of wine over the course of the evening. After the Art Walk ended, she helped to clean up and then drove home. She had the windows of her SUV partially open and a CD playing. Appellant saw a small blue light moving along the right hand side of the road. Shortly after that, she heard a noise and some people laughing. Appellant thought some college kids were goofing off by the road; she thought one of them might have hit her car with a backpack or maybe a trash can. Appellant continued driving. When she reached her house, she parked in the driveway and walked around the back of the SUV to reach the path to her front door. She went inside, spent a few minutes chatting with her son and then went to bed. Appellant testified that she first noticed damage to the front of her SUV at about 6:30 the next morning, when she went outside to get the newspaper.
Appellant called the Santa Barbara Police Department twice that morning, asking whether any accidents or injuries had been reported on Alston Road the previous night. She told the staff member who answered the telephone that she noticed a dent in her car that morning and thought she might have hit a coyote on her way home from work. Alston Road intersects with Hot Springs Road; appellant drove on both roads to get home that night. She was told that no such accidents had been reported. She was also advised to come into the department to file an accident report if her car was damaged. At about 2:00 p.m., appellant arrived at the Santa Barbara Police Department and made a report about the incident to the staff member working at the front desk. The report included appellant's name, address and telephone number.
Appellant telephoned again at about 7:30 that evening and spoke with the watch commander. During this conversation, she referred several times to the report she had filed. Appellant eventually stated that she was the person who had been involved in the accident on Hot Springs Road. She acknowledged hearing on the radio that the accident involved a fatality. She gave the watch commander her name, address, telephone number and the name of her attorney. Although she said that she and her attorney would come to the station, they did not arrive at the agreed time.
CHP and Santa Barbara police officers went to appellant's home where they arrested her and impounded her SUV. The SUV was parked in front of appellant's garage where it was illuminated by a light mounted on the garage. To get from the driveway into the house, one had to walk past the damaged right side of the SUV.
The collision dented the hood on the passenger side of appellant's SUV, in the area just above the right headlight. The right front quarter panel adjoining the hood was broken and there was a protruding piece of jagged metal. One of the hood's mounting bolts protruded through the metal and another bolt had been pushed high enough to make an impression in the hood. The antenna, located on the right front fender, was bent outward. There was a crack in the plastic portion of the front bumper. The right headlight cover was cracked and the low beam lamp was rendered inoperable by the impact. A reddish-colored clothing fiber was recovered from the front headlight. A side blinker light was cracked, but remained operable. Appellant's accident reconstruction expert opined that Cohn's body would have been carried onto the hood of the SUV for approximately 100 to 120 milliseconds before shifting to the right and rolling off the right fender.
The roadway lines in the area of the collision were repainted in March 2003. In August 2003, within a few days after the accident, the same portion of the road was re-surfaced and the lines were painted once again.
Appellant contends the trial court abused its discretion when it admitted two items of demonstrative evidence. The first is a still photograph of the district attorney's investigator lying on the hood of appellant's SUV in a position the victim may been in before he fell to the pavement. The second is a videotape, filmed at night by CHP officers, of a route appellant may have driven on the night of the collision. Neither the investigator nor the CHP officer witnessed the collision and neither testified as an expert witness. Appellant contends the photograph and videotape lacked foundation because the witnesses did not have personal knowledge of the conditions that existed during the collision or its aftermath. Thus, neither witness was qualified to testify that the photograph or videotape accurately reflected those conditions.
Standard of Review
The trial court has broad discretion in determining the admissibility of evidence, including photographs and videotapes that purport to reenact or demonstrate some aspect of the crime or crime scene. (People v. Horning (2004) 34 Cal.4th 871, 900; People v. Bradford (1997) 15 Cal.4th 1229, 1326; People v. Pedroza (2007) 147 Cal.App.4th 784, 795.) We emphasize, as have innumerable "time-honored precedents," that this deferential standard of review presents appellant with a daunting task: to demonstrate that the trial court's decisions were arbitrary, capricious, whimsical or outside the bounds of reason. (Estate of Gilkison (1998) 65 Cal.App.4th 1443, 1448, quoting In re Cortez (1971) 6 Cal.3d 78, 85-86.) It is " 'wholly insufficient' " for appellant to present us with " 'a state of facts, a consideration of which, for the purpose of judicial action, merely affords an opportunity for a difference of opinion. An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.' " (Id. at p. 1449, quoting Brown v. Newby (1940) 39 Cal.App.2d 615, 618.) To prevail, appellant must demonstrate that "the error or errors complained of resulted in a miscarriage of justice." (Evid. Code, § 353, subd. (b).) In this she has failed.
The Photograph
Exhibit 2A was taken in daylight, while the SUV was parked in the police impound lot. The photograph was shot from the perspective a person sitting in the driver's seat of the SUV, looking directly at the passenger side of the hood. It depicts the investigator laying face up on the hood. The investigator is several inches taller and about 40 pounds heavier than was the victim. He testified that he determined where to place his body by referring to the police reports and the dents in the hood. Thus, he laid his head in the area where the mounting bolts were protruding from the underside of the hood and his legs near the headlight, where the metal was dented and the lamps were cracked.
The trial court has broad discretion in determining whether to admit a photograph that depicts the crime scene or reenacts of some aspect of the crime or other relevant circumstance. (People v. Bradford (1997) 15 Cal.4th 1229, 1326.) The proponent of the photograph must demonstrate that it " 'rests on an adequate foundation.' (People v. Bonin (1989) 47 Cal.3d 808, 847 [254 Cal.Rptr. 298, 765 P.2d 460].) Admission of such evidence depends upon proof of the following foundational items: (1) the experiment must be relevant; (2) it must have been conducted under at least substantially similar, although not necessarily absolutely identical, conditions as those of the actual occurrence; (3) the qualifications of the individual testifying concerning the experimentation must be demonstrated with some particularity; and (4) evidence of the experiment will not consume undue time, confuse the issues or mislead the jury." (People v. Turner (1994) 8 Cal.4th 137, 198.)
Appellant contends the photograph lacked an adequate foundation because the circumstances depicted in the photograph are not substantially similar to the collision. It was taken in bright sunlight while the SUV was parked in an impound lot. The collision occurred on a dark night as the SUV traveled along an unlit road. Both the SUV and the investigator were stationary when the photograph was taken. At the time of the collision, however, appellant's SUV was traveling at about 35 miles per hour and there is no evidence the victim was stationary on the hood for longer than one-tenth of a second. The investigator shown in the photograph is significantly larger than the victim and is wearing lighter colored clothing than did the victim. The camera is pointed toward the body on the hood, instead of straight ahead in the direction a driver would ordinarily have been looking. Appellant further contends the photograph is inadmissible as an illustration of the investigator's opinion about where the victim's body might have landed on the SUV because the investigator is not qualified to render an expert opinion on that issue and because his opinion as a non-expert is not based on personal observation of the accident. (See, e.g., Evid. Code, § 800.)
There was no abuse of discretion. The photograph had, we think, at least some probative value because it shows that a body resting on the hood of appellant's SUV, however briefly, could have been visible to the driver. This point is relevant to the question of appellant's knowledge that she had been involved in an accident causing injury or death, an element of the charged offense. (Veh. Code, § 20001, subd. (a)(2).)
It may be that the prosecution could prove appellant's ability to see the victim without using a staged photograph. But it has the burden to prove every element of the offense and it is not obligated to rely solely on the testimony of live witnesses or " ' " ' antiseptic stipulations in lieu of [visual] evidence.' " ' " (People v. Marks (2003) 31 Cal.4th 197, 226.) Differences between the photograph and the conditions existing at the time of the collision are obvious and were emphasized by defense counsel on cross-examination of the investigator. Jurors heard evidence that the victim's body would have been on the hood for about one-tenth of a second and that it might never have been stationary as the photograph depicts. They could readily understand these differences and take them into account in determining the weight to be given to the photograph. (People v. Gonzalez (2006) 38 Cal.4th 932, 950; People v. Rodrigues (1995) 8 Cal.4th 1060, 1115-1116.) There was no abuse of discretion.
The Videotape
CHP Officers Terry and Valenti made a videotape showing the route they believed appellant drove from downtown Montecito to her home on the night of the collision, using a borrowed SUV of the same make, model and year as appellant's. The videotape was made at about the same time of night as the accident occurred and the officers took what they believed to be the most direct route from appellant's parking place to her house. They used the low beam headlights on the SUV, as appellant testified she had. Weather conditions were similar on both nights, although the videotape was made on a night with a full moon while the collision occurred on a night with almost no moon. The road had been resurfaced and the lane markings re-painted between the time of the accident and the time the videotape was made. As a result, when the videotape was made, the pavement looked somewhat darker and the lane markings somewhat brighter than they would have appeared on the night of the accident.
Officer Terry, who shot the videotape, testified that he believed the camera automatically adjusted for the low light. In his opinion, the videotape appeared somewhat darker than the actual conditions as seen by the human eye. Even with this limitation, the white stripes marking the bike lane and shoulder are prominent. In addition, the videotape shows conditions on Alston Road, which has a stone wall running along its right shoulder. The videotape shows that the SUV's right headlight illuminates and reflects off of the stone wall. Appellant would have driven on this road after her right headlight was broken in the collision, yet she testified that she did not notice the inoperable headlight during the drive to her house.
Appellant contends the videotape should have been excluded from evidence for the same reasons the photograph should have been excluded. In deciding whether to admit a videotaped demonstration into evidence, " 'a trial court must determine whether: (1) the videotape is a reasonable representation of that which it is alleged to portray; and (2) the use of the videotape would assist the jurors in their determination of the facts of the case or serve to mislead them.' (People v. Rodrigues (1994) 8 Cal.4th 1060, 1114, 36 Cal.Rptr.2d 235, 885 P.2d 1.) The demonstration must also be relevant and 'must have been conducted under at least substantially similar, although not necessarily absolutely identical, conditions as those of the actual occurrence.' (People v. Turner (1994) 8 Cal.4th 137, 198, 32 Cal.Rptr.2d 762, 878 P.2d 521.)" (People v. Pedroza (2007) 147 Cal.App.4th 784, 795.)
Appellant contends the videotape should have been excluded because the CHP officer had no personal knowledge of the conditions that existed on the night of the collision, so he could not testify that the video was a reasonable representation of those conditions. But the officer could, and did, testify that the videotape was an accurate representation of conditions that existed when the videotape was made. The jury also heard evidence about the weather, darkness, and phase of the moon on the night of the collision and about the condition of the road. Jurors could determine whether the conditions depicted on the videotape were substantially similar to those present on the night of the collision and make whatever allowances they deemed appropriate for differences they may have found in the moonlight and the road surface. (People v. Carpenter (1997) 15 Cal.4th 312, 386.) There was no abuse of discretion.
Prosecutorial Misconduct
Appellant contends the prosecuting attorney committed misconduct when, during his closing argument, he had the courtroom lights dimmed in an effort to demonstrate that appellant would have noticed the damage to her SUV when she parked it in her driveway. Using a slide of appellant's SUV parked in her driveway, the prosecutor argued that appellant must have noticed the damage to her SUV when she parked it because either the garage light was on and she saw the damage, or it was off and she saw that her right headlight was not working. Appellant contends this "experiment" was prejudicial because there was no evidence that the slide reasonably represented what appellant would have seen with her garage lights off.
Behavior by a prosecutor violates the federal Constitution when it is egregious enough to render the trial fundamentally unfair and the conviction a violation of due process. A prosecutor's conduct may violate state law where he or she uses deceptive or reprehensible methods to persuade either the court or the jury. (People v. Hill (1998) 17 Cal.4th 800, 819 [72 Cal.Rptr.2d 656, 952 P.2d 673].) It is misconduct to misstate or mischaracterize the evidence or to refer during argument to facts that are not in evidence. (People v. Hill, supra, 17 Cal.4th at pp. 823, 827-828.) At the same time, prosecutors have wide latitude in their arguments to comment on the evidence and draw reasonable inferences from it. "Counsel may argue facts not in evidence that are common knowledge or drawn from common experiences." (People v. Young (2005) 34 Cal.4th 1149, 1197.)
When the prosecutor turned down the lights during closing argument, he invited the jury to consider whether appellant would have been able to see the damage to her SUV when she parked in her driveway, regardless of whether the garage light was on. Appellant testified that she could not remember whether the garage light was on when she arrived home and that she did not see the damage to her SUV until the next morning. The prosecutor challenged the veracity of that testimony by pointing out that the garage light would have illuminated the damaged area if it was turned on and, if it was not, appellant should have noticed her inoperable headlight as she drove. Both of those inferences are based on common knowledge of the ability to see at night, with or without lights. This brief statement, based on common knowledge and appellant's own testimony, was not deceptive or reprehensible and did not render the trial fundamentally unfair. There was no prejudicial misconduct.
Conclusion
The judgment is affirmed.
I concur: GILBERT, P.J.
CONCURRING OPINION
PERREN, J.
I concur in the judgment. I write separately, however, because I disagree with the majority's analysis of the admissibility of investigator Nalls' testimony. The majority conclude that the trial court did not abuse its discretion in admitting the photograph that purported to reconstruct the moment of impact and the position of decedent as he was carried on appellant's car for "100 to 120 milliseconds." Contrary to the majority, I believe that the trial court abused its discretion in allowing this testimony. (City of Marina v. Board of Trustees of the California State University (2006) 39 Cal.4th 341, 355-356 [use of an erroneous legal standard constitutes a failure to proceed in a manner required by law].)
Nalls testified that he configured his body on the hood of appellant's car, "Based on a discussion that [the prosecutor] and I and Officer Valenti had using the police report in looking at the damage to the vehicle determined [sic] what we believed was the position of the body of Mr. Cohn when he landed on the hood of the car, and then I assumed that same position."
In other words, Nalls' restaging of the impact was without personal knowledge of the circumstances of the collision. Rather, his testimony gave voice to the collective opinions of himself, Officer Valenti and the prosecutor. But, Nalls did not testify as an expert. His was non-percipient lay opinion testimony received without adequate foundation. (Evid. Code, §§ 702, 801; Box v. California Date Growers Assn. (1976) 57 Cal.App.3d 266, 274.) It was received as foundational to the admission of a photograph showing Nalls upon the hood of the car in what respondent contended was the position of the decedent immediately following impact and was deemed "illustrative" of Nalls' testimony. Thus, the testimony was received as foundational to the photograph which was to be considered as illustrative of the testimony. The circle was complete. The testimony however served only to illustrate the inadmissible.
Evidence Code section 800 states: "Lay witnesses; opinion testimony: [¶] If a witness is not testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is permitted by law, including but not limited to an opinion that is: [¶] (a) Rationally based on the perception of the witness; and [¶] (b) Helpful to a clear understanding of his testimony." Here the evidence fails for want of the "perception of the witness."
The photograph was no better than the evidence upon which it was based – evidence of a lay person offering a (collective) opinion of the dynamics of the collision. It depicted a person larger than the victim -- Nalls himself -- sprawled across the hood in what was admittedly an incomplete picture -- the position of the arms was simply unknown. It was taken in daylight rather than darkness. Worse, the display was frozen in time and viewed from the driver's position suggesting the driver was looking in that direction – a fact utterly without foundation. Such an artificial recreation of an event "may unduly accentuate certain phases of the happening, and because of the forceful impression made upon the minds of the jurors by this kind of evidence, it should be received with caution. As pointed out by Wigmore, such a portrayal of an event is apt to cause a person to forget that 'it is merely what certain witnesses say was the thing that happened' and may 'impress the jury with the convincing impartiality of Nature herself.' (3 Wigmore, Evidence [3d ed.] § 798a, p. 203.)" (People v. Dabb (1948) 32 Cal.2d 491, 498; see 1 Witkin, Cal. Evidence (4th ed. 2000) Opinion Evidence, § 60, pp. 603-604.)
Nalls could have testified to what he saw. The jury could have viewed the car or photographs of the damage it sustained in the collision. A physician or other qualified expert could have testified to the significance, if any, of the wounds to the victim's skull and how they correlated to the hood of the car. In his summation, the prosecutor could have woven these facts to suggest to the jury how they fit together. He could not, however, in the guise of evidence, offer his argument through a surrogate testifying as a witness. Counsel's argument does not carry the dignity enjoyed by competent evidence properly received. Here, however, the prosecutor, like some medieval alchemist, was permitted to convert a leaden argument into golden evidence. This was error.
The videotape of appellant's purported route of travel suffers from similar defects. It is, however, worse because it assumes a route of travel taken by appellant that is without basis and travels a road whose striping and surface had been changed since the evening of the collision.
I concur, however, with the majority. The errors complained of did not result in a miscarriage of justice. (Evid. Code, § 353, subd. (b).)