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Kemp v. State

Florida Court of Appeals, Fourth District

December 13, 2017

JABARI KEMP, Appellant,

         Not final until disposition of timely filed motion for rehearing.

          Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; John S. Kastrenakes, Judge; L.T. Case No. 502013CF006185A.

          Carey Haughwout, Public Defender, and Karen E. Ehrlich, Assistant Public Defender, West Palm Beach, for appellant.

          Pamela Jo Bondi, Attorney General, Tallahassee, and Allen R. Geesey, Assistant Attorney General, West Palm Beach, for appellee.

          May, J.

         A tragic accident resulted in the death of five people, and the defendant's conviction on five counts of vehicular manslaughter. He appeals his conviction and sentence. He argues the trial court erred in admitting the testimony of an accident re-constructionist, and he was procedurally prejudiced by the late disclosure of an expert opinion. We disagree and affirm.

         On the evening of the accident, the defendant was driving a Mercedes coupe northbound on I-95. He exited at Blue Heron Boulevard. According to the lead accident investigator, the curvature of that exit "would require a person to make their vehicle maneuver in such a way to make that curve."

         The defendant's car ran the red light at the end of the exit ramp, continued straight into the perpendicular lanes of traffic, and crashed into the side of a Lexus sedan that was proceeding eastbound with the green light. The State presented expert testimony that the defendant's car was travelling at 128.7 mph at the time of impact. Both cars went across the median and came to rest beyond the westbound lanes of traffic.

         The five young people in the Lexus died as a result of the accident. When paramedics arrived, the defendant was awake but "mostly in and out of consciousness." The defendant had to be extricated from his car.

         A key factual dispute was whether the defendant lost consciousness before the crash. His defense was that he blacked out and did not have control of the car at the time of the collision. He testified that he felt "very faint" about "a second or two" into the Blue Heron exit. He explained that he had never fainted before and did not know he was going to pass out. He recalled driving 65 to 70 mph before he lost consciousness. The next thing he remembered was waking up in the hospital.

         Defense counsel argued that the defendant's height and manner of sitting in his car meant that his "foot likely depressed on that pedal" after the defendant passed out, which would explain how the vehicle could have reached 128 mph. The defendant testified that he was five foot and eleven inches tall. His Mercedes sports car sat "kind of low, " and the gas pedal was "very responsive."

         A passenger in a car that passed the Lexus, described the defendant's car exiting the ramp: "It was a flying like it was - it was like somebody was unconscious in the car just going, [vroom]. It was - I thought it was flying because it wasn't turning, it was just going straight. It was just, like - like a plane diving." According to this witness, the defendant's car did not attempt to brake.

         A police officer at an unrelated traffic stop about 400 feet away from the accident "heard the sound of tires screeching on a highway effectively applying brakes and then . . . heard a large pop or a bang which was indicative of a collision having occurred." But, the officer did not see the accident, and did not know which car made the screeching sound.

         Corporal Johnson was the lead investigator. He testified that he did not see any roadway tire marks indicating the defendant was braking immediately before the crash. He was assisted by Corporal Dooley, who performed the speed calculations.

         Both issues on appeal arise from Corporal Dooley's testimony. Over the defense Daubert[1] objection and another objection to a State discovery violation, the trial court admitted Dooley's opinion that the damage to the Lexus indicated the defendant was braking his vehicle as the collision occurred.

         Specifically, Dooley testified that the crush damage to the Lexus went downward in "an arc-type fashion, " which indicated the front end of the defendant's car was dipping as it collided with the Lexus. If a car is dipping, Dooley explained, this indicates "that there is some type of braking or driver input."

         Dooley stated that if the defendant's vehicle had not been dipping, there would be "more of a flatter type crush pattern." Dooley claimed that the damage to the Lexus started at the normal height one would expect, but arcs downward. According to Dooley, it was the arc of the damage to the Lexus-not its height from the ground-that was indicative of dipping.

         The jury found the defendant guilty as charged on all five counts. The court granted a downward departure and sentenced the defendant to five consecutive terms of six years in prison, for a total of 30 years. From his conviction and sentence, the defendant now appeals.

         The defendant first argues the trial court erred by admitting Dooley's braking opinion, because it did not meet the requirements of section 90.702, Florida Statutes (2015), and Daubert.[2] Because the parties relied on Daubert at trial and because neither party challenged the validity or constitutionality of the Daubert Amendment, we apply Daubert to this appeal. See Clare v. Lynch, 220 So.3d 1258, 1261-62 (Fla. 2d DCA 2017) (applying a statutory amendment governing expert witness qualifications in medical malpractice cases, despite the Florida Supreme Court's refusal to adopt the amendment "to the extent it is procedural, " where the relevant party did not raise the constitutionality of the statute).

         We review a trial court's ruling on the admissibility of expert testimony under section 90.702 for an abuse of discretion. Booker v. Sumter Cnty. Sheriff's Office/N. Am. Risk Servs., 166 So.3d 189, 194 n.2 (Fla. 1st DCA 2015).

          Daubert assigned the trial judge as gatekeeper to "ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable." 509 U.S. at 589. That obligation applies not only to "scientific" testimony, but "to all expert testimony." Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999).

         The Court articulated factors bearing on the reliability inquiry:

(1) whether the theory can be or has been tested;
(2) whether the theory or technique has been subjected to peer review and publication;
(3) the known or potential rate of error of a particular scientific technique, as well as the existence of standards controlling the technique's operation; and
(4) general acceptance in the scientific community.

Daubert, 509 U.S. at 593-94. The Court advised however that the "test of reliability is flexible, and Daubert's list of specific factors neither necessarily nor exclusively applies to all experts or in every case." Kumho Tire, 526 U.S. at 141 (internal quotation marks omitted).

         Section 90.702, Florida Statutes, provides that expert testimony is admissible if:

(1) The testimony is based upon sufficient facts or data;
(2) The testimony is the product of reliable principles and methods; and
(3) The witness has applied the principles and methods reliably to the facts of the case.

         The Court has explained:

Experts of all kinds tie observations to conclusions through the use of what Judge Learned Hand called "general truths derived from . . . specialized experience." And whether the specific expert testimony focuses upon specialized observations, the specialized translation of those observations into theory, a specialized theory itself, or the application of such a theory in a particular case, the expert's testimony often will rest "upon an experience confessedly foreign in kind to the jury's own." The trial judge's effort to assure that the specialized testimony is reliable and relevant can help ...

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