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Kemp v. State

Florida Court of Appeals, Fourth District

July 31, 2019

JABARI KEMP, Appellant,

          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.

          Ashley Moody, Attorney General, Tallahassee, and Allen R. Geesey, Assistant Attorney General, West Palm Beach, for appellee.


          Taylor, J.

         In light of In re Amendments to Florida Evidence Code, SC19-107, 2019 WL 2219714 (Fla. May 23, 2019), we withdraw our opinion dated May 8, 2019, which renders the State's amended motion for rehearing of that decision moot. We grant appellant's first amended motion for rehearing directed to our opinion dated December 13, 2017, and we substitute this opinion in place of our prior opinions.

         Appellant, Jabari Kemp, appeals his convictions for five counts of vehicular manslaughter. The charges stemmed from an automobile crash that resulted in the tragic deaths of five young people. At trial, the principal issue was whether appellant operated "a motor vehicle . . . in a reckless manner likely to cause the death of, or great bodily harm to, another." § 782.071, Fla. Stat. (2012). A key factual dispute on this issue was whether appellant was in control of the car at the time of the crash. To prove this disputed element, the State relied on expert opinion testimony that appellant had applied the brakes before the crash. The expert's braking opinion was based solely on his visual observation of crush damage to the victims' car.

         We reverse for a new trial. We conclude that the trial court abused its discretion in admitting expert testimony that did not meet the requirements of Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993). The expert's braking opinion was not shown to be based upon sufficient facts or data, was not shown to be the product of reliable principles and methodology, and amounted to little more than a subjective and unverifiable opinion.


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

         Appellant's car sped down the exit ramp and ran the red light at the end of the ramp. The car 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 appellant's vehicle impacted the Lexus at about 128 mph. Both cars went across the median and came to rest beyond the westbound lanes of traffic.

         When paramedics arrived, appellant was awake but was "mostly in and out of consciousness." Appellant had to be extricated from his vehicle.

         The five young people in the Lexus died as a result of the accident.

         One of the factual disputes at trial was whether appellant had lost consciousness shortly before the crash. The State was required to prove at trial that appellant operated his motor vehicle "in a reckless manner likely to cause the death of, or great bodily harm to, another," which is a required element of vehicular homicide.[1] However, evidence that a defendant merely lost control of a vehicle is insufficient, without more, to prove reckless driving. Smith v. State, 218 So.3d 996, 998 (Fla. 2d DCA 2017).

         Appellant's defense was that he fainted at the wheel and did not have control over 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 from I-95. 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 at the hospital.

         Defense counsel argued that appellant's height and manner of sitting in the Mercedes likely caused appellant's foot to press on the gas pedal after he passed out. According to defense counsel, this would explain how the vehicle could have gotten up to 128 mph as appellant exited I-95. Appellant testified that he was 5'11'', that his Mercedes sports car sat "kind of low," and that the gas pedal was "very responsive."

         An eyewitness described seeing appellant's car coming down the off-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, appellant's car was not braking.

         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 I heard a large pop or a bang which was indicative of a collision having occurred." However, the officer did not see the accident, nor did he know which car made the screeching sound.

         Corporal Johnson was the lead investigator in the case. He testified that appellant's vehicle left tire marks on the exit ramp. He could not say that the tire marks were indicative of braking immediately before the crash. He explained that tire marks could be from steering input, braking, or "a number of factors." He claimed that tire marks would require driver input. However, he admitted that he could not state with certainty that appellant was in control of his vehicle at the time of the collision.

         Corporal Johnson was assisted by Corporal Dooley, who performed the speed calculations.

         Both issues on appeal arise from Corporal Dooley's testimony. Over appellant's Daubert[2] objection and another objection to the late disclosure of Dooley's braking opinion, [3] the trial court admitted Dooley's opinion that the damage to the Lexus indicated that appellant was braking his vehicle as the collision occurred.

         Before trial, defense counsel specifically argued that Dooley's braking opinion should be excluded under Daubert because the opinion was not based on any calculations and lacked "a foundation in any form of science." The trial court did not rule on the Daubert issue at that time.

         When Dooley testified, he explained that he inspected the vehicles after the accident for "crush damage," mechanical defects, tire malfunction, and damage profiles. Damage profiles show the angle of approach from the vehicle, how far the crush went into the vehicle, and the angle of departure.

         Dooley claimed that sometimes there is damage that indicates whether braking occurred at the point of impact between two cars:

[CORPORAL DOOLEY:] When you have two cars that are relatively similar in height . . ., as somebody is approaching a car . . . they are not paying attention or whatever it is, and at the last second they brake right before impact. And the front end will dip and it will go down and it will smack the rear of the car or whatever the case is. Normally, that's from you're traveling at a speed and as you hit the brakes, center mass, the momentum is going forward so it's going to push that momentum forward causing the front end to dip. I'm sure we have all done it, whether you accelerate and the front end goes up, or you hit the brakes and the front end goes down, but that's what we are looking for is how up the damage profile is. . . . What we have here is, up to here this is the right rear passenger door of the Lexus. And as you can see here, it's kind of bowed out a little bit, and then when you look further down you notice how it appears to get deeper and deeper and deeper. When you get down to the bottom of it that's the frame right there, okay? So when you look at this damage profile this to me is obviously a significant impact. But when you have all of this up here, which is kind of in line with whatever the car may or should have been, and then as you start looking down, down, down, it starts to get deeper and deeper and deeper as you get down to the -

         At this point, the defense objected, and the court permitted voir dire before Corporal Dooley rendered his opinion:

[CORPORAL DOOLEY]: Well, when you have such a tremendous speed going down and so much energy and momentum, the car is -- if it's not dipping, or going up, or accelerating, it's going straightforward. Whatever it's going to hit and when it hits you would have the crushing factor. It would be more upright but, again, like I said, when I see this based on everything I've seen in the past, all my training and experience, it shows me that the car hits and goes down, is what it tells me. That's all I can testify to. That's what it tells me is that it hits but it's going down.
THE COURT: And that is consistent within a reasonable degree of scientific certainty with braking of the Mercedes?
[CORPORAL DOOLEY]: I can't tell you about the scientific --or anything about the braking of the Mercedes. What I can tell you is the overall dynamics of a car to require to have shocks and struts and all these things and if you are accelerating, the front will go up. If you are decelerating it goes down -- that's all I can -- I'm just telling you what it means to me.
THE COURT: Is it consistent with braking?
THE COURT: Is it consistent with any other scenario other than braking?
[CORPORAL DOOLEY]: I, personally, cannot think of anything that it would be consistent with --
[PROSECUTOR]: If I could ask him one additional question. . . . When the Judge asked you if it's within a degree of scientific certainty, when we talk about science what you are discussing deals with a car going downward, deals with the laws of physics and momentum, correct?
[CORPORAL DOOLEY]: Yes, ma'am.
[PROSECUTOR]: Okay. And that would be science?
[CORPORAL DOOLEY]: Yes, ma'am. . . .
[DEFENSE COUNSEL]: Are there any studies on this dipping effect, the curling downward?
[CORPORAL DOOLEY]: I'm sure that there are but I can't quote anything specific.
[DEFENSE COUNSEL]: None that you have read?
[CORPORAL DOOLEY]: Yes, we've actually -- when we go out and we do a lot of these more specific schools, like I testified to earlier . . . that I've attended, we go out and we will crash vehicles, we will throw motorcycles off the back of trucks and watch them spin, but to classify like as actually studying I personally cannot recall anything specific dealing with it. Other than talking about momentum in general when weights are transferred from the center mass forward because that's where the momentum was going. And as they apply the brakes, the momentum shifts forward, and as you accelerate, the momentum shifts backwards, talking about dynamics of how cars work. But as far as quoting an actual case study or a doctor or scientist or whomever may have been out there looking at it, I can't tell you.
[DEFENSE COUNSEL]: Okay. And that would have nothing to do with the fact that the Lexus was a heavier vehicle at the time?
[CORPORAL DOOLEY]: Heavier vehicle and damage profile, I can't see any type of issue with that but it just appears like I said this, I'm just testifying as to what this looks like to me --
[DEFENSE COUNSEL]: Okay. Thank you. . . .
THE COURT: Corporal, is this -- is this type of downward arc in damage something that is taught at you know accident reconstruction classes that you have done?
[CORPORAL DOOLEY]: There are examples that are given. Unfortunately, you can't cover every single type of scenario that a crash will happen in, but no there are examples given and again explain to you how when a vehicles weight shifts and different things like that and we learn about speed calculations if a car swerved to avoid and all of the load goes to one side, and it will leave a tiny thin mark. We learn about weight transfer and momentum transfer, and then we go into when vehicles collide with others and how they transfer their momentum or kinetic energy to the other vehicle. But we do learn about these things, but I can't quote you anything specific off the top of my head as to a case study or somebody who is in the know, specifically.

         (Emphasis added).

         The trial court ruled that Dooley's braking opinion was admissible under Daubert, concluding that the opinion was based on Dooley's training and was sufficiently reliable to be admitted.

         Dooley then testified that the crush damage to the Lexus went downward in "an arc-type fashion," which indicated that the front end of appellant's car was dipping as it was colliding with the Lexus. If a car is dipping, Dooley explained, this indicates "that there is some type of braking or driver input." Dooley asserted that if appellant's vehicle had not been dipping, there would have been "more of a flatter type crush pattern." Dooley claimed that the damage to the Lexus starts 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 appellant guilty as charged on all five counts. The court granted a downward departure and sentenced appellant to five consecutive terms of six years in prison, for a total of 30 years in prison.


         On appeal, appellant argues that Dooley's testimony did not meet the requirements of section 90.702, Florida Statutes, and Daubert. We agree.

         A. Daubert ...

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