Kemp v. State
| Decision Date | 31 July 2019 |
| Docket Number | No. 4D15-3472,4D15-3472 |
| Citation | 280 So.3d 81 |
| Court | Florida District Court of Appeals |
| Parties | Jabari KEMP, Appellant, v. STATE of Florida, Appellee. |
ON POST-OPINION MOTIONS
In light of In re Amendments to Florida Evidence Code , SC19-107, 278 So.3d 551, 2019 WL 2219714 , 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, 113 S.Ct. 2786, 125 L.Ed.2d 469 (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: 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 Daubert2 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:
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