Peralta v. State
| Decision Date | 26 June 2018 |
| Docket Number | No. 45575-7-II,45575-7-II |
| Court | Washington Court of Appeals |
| Parties | DEBORAH PERALTA, Appellant, v. STATE OF WASHINGTON and WASHINGTON STATE PATROL, Respondents. |
MELNICK, J. — Peralta v. State, 187 Wn.2d 888, 891, 905, 389 P.3d 596 (2017), reversed this court and remanded the case for us to determine whether the remaining evidentiary errors prejudiced Peralta. The trial court errors included a decision to exclude the deposition testimony of two Washington State Patrol (WSP) employees, to exclude eyewitness hearsay statements, and to compel Deborah Peralta to disclose the identity of her consulting expert. Peralta v. State, 191 Wn. App. 931, 951-54, 366 P.3d 45 (2015). Additionally, we agreed to review whether the exclusion of an admission to a paramedic regarding speed constituted error and prejudiced Peralta. We affirm the trial court.
Peralta and a neighbor drank beer in a downtown Vancouver tavern. Later in the evening, Peralta rode with a friend to a party. Peralta had an argument at the party and left. She became lost and called her brother for a ride home. Following a misunderstanding regarding her location, Peralta's brother told Peralta to come out into the street so that he could see her. Peralta mistook an approaching car for her brother's car. She stepped in front of the car, which struck her. Realizing that he had struck someone, WSP Sergeant Ryan Tanner, the driver of the vehicle, called for backup and medical assistance. Peralta suffered serious injuries and was hospitalized.
We concluded that the trial court made numerous evidentiary errors. The facts of each are described in detail in our earlier opinion summarized below.
First, the trial court excluded deposition testimony of two witnesses, Sergeant Roy Rhine and Detective David Ortner. The trial court failed to determine if either witness made statements in his representative capacity of WSP, which would have made them admissible as statements of a party opponent.
Second, the trial court excluded eyewitness statements about whether Tanner's headlights were on at the time of the accident. The trial court failed to consider if the statements were admissible as prior consistent statements because WSP alleged recent fabrication.
Third, the trial court erred by compelling Peralta to disclose her consulting expert, and precluding her from calling an expert witness.
Lastly, although we did not decide the issue in our previous opinion, we agree to decide whether the trial court erred in excluding a statement made to a paramedic regarding Tanner's speed at the time of the accident.
Generally, "[i]t is well established that errors in civil cases are rarely grounds for relief without a showing of prejudice to the losing party." Saleemi v. Doctor's Assocs., Inc., 176 Wn.2d 368, 380, 292 P.3d 108 (2013). "[E]rror without prejudice is not grounds for reversal." Thomas v. French, 99 Wn.2d 95, 104, 659 P.2d 1097 (1983). "Error will not be considered prejudicial unless it affects, or presumptively affects, the outcome of the trial." Thomas, 99 Wn.2d at 104; Saleemi, 176 Wn2d at 380. Reversal is required if it is reasonable to conclude that the trial outcome would have been materially affected had the error not occurred. Lutz Tile, Inc. v. Krech, 136 Wn. App. 899, 905, 151 P.3d 219 (2007).
We must first determine whether the trial court's exclusion of testimony from two WSP employees, Rhine and Ortner, prejudiced Peralta. We previously concluded that the trial court erred by not holding a hearing on whether Rhine or Ortner was a speaking agent for WSP. Rather than remand the matter to the trial court to decide this issue, for purposes of this opinion, we assume that they both were. We then review the issue solely on the issue of possible prejudice to Peralta.
Tanner testified he saw Peralta in front of his vehicle immediately before impact, he applied his brakes, and he swerved to try to avoid hitting her.
During her rebuttal, Peralta moved to publish a portion of Rhine's deposition testimony to impeach Tanner's testimony that he saw Peralta before impact. Rhine testified in his deposition that Tanner told him he did not see Peralta before he struck her.
After the collision, Clark County Sheriff Detective Ryan Taylor investigated it. He testified that a few days after the collision, he spoke to Peralta in the hospital, and she appeared conscious and alert during the interview. Peralta also told Taylor that she saw headlights approaching her prior to the collision and she walked out into the roadway.
Peralta also offered a portion of Ortner's deposition testimony to impeach Taylor's testimony that Peralta was alert and coherent during an interview at the hospital after the collision. Ortner testified in his deposition that he was present during the interview with Peralta and she was "a little bit groggy, I guess, so to speak." Supp. CP at 529; Peralta, 191 Wn. App. at 941 n.3 .
Peralta argues that excluding Rhine's deposition testimony was prejudicial because it could have been used to rebut Tanner's trial testimony. Tanner testified that he saw Peralta prior to impact. According to Rhine, Tanner told him the opposite.
We conclude that any error by the trial court for excluding Rhine's deposition testimony was harmless. Rhine wrote a police report regarding the incident. The trial court admitted the report. That report stated in pertinent part, that Tanner expressed concern for Peralta. He told Rhine, " " Suppl. CP at 612. Suppl. CP at 612. Tanner exited his vehicle and confirmedhe had hit a person. "He said to that point, he wasn't sure what he had hit that he didn't see them prior to impact." Suppl. CP at 612.
Because Rhine's excluded deposition testimony was the same as his admitted report, the jury considered the evidence. The deposition testimony would have been cumulative. Any error in excluding the deposition testimony was harmless.
Peralta argues that excluding Ortner's deposition testimony was also prejudicial because Ortner's description of his hospital interview with Peralta could have been used to rebut Taylor's version of the interview. Ortner described Peralta's mental state as "groggy," while Taylor asserted that Peralta was "coherent and alert." Suppl. Br. of Appellant at 5.
This proffered evidence was cumulative with the testimony of Peralta's mother who was present in the hospital room during Tanner's interview.
Because Rhine's and Ortner's deposition testimony was cumulative, Peralta cannot show prejudice for the trial court's error.
We next consider whether the trial court's erroneous hearsay exclusion of prior consistent statements by eyewitnesses prejudiced Peralta.
A prior consistent statement by a witness is not hearsay if it is consistent and used to rebut an allegation of recent fabrication. ER 801(d)(1)(ii).
The parties contested whether Tanner's headlights were on at the time of the collision. Peralta and Tanner testified that the headlights were on. Two witnesses, Rick Riddell and Guy Kirchgatter, testified that Tanner's headlights were off at first and then turned on. Riddell informed a law enforcement officer at the scene that Tanner's headlights were turned off. Peralta, 191 Wn. App. at 940.
Peralta tried to elicit testimony from Luann Pfleiger, Kirchgatter's mother, about what Riddell and Kirchgatter told her they saw on the night of the accident regarding Tanner's headlights. WSP objected and argued the question called for hearsay. The trial court sustained the objection. Peralta argued that under ER 801(d)(1), it was an admissible, prior consistent statement in response to an implication of recent fabrication in WSP's opening statement.
In opening statement, WSP stated, "'Now, unlike some of the witnesses whose testimony you will hear in this case who came up with their story several years after the event.'" Peralta, 191 Wn. App. at 941 (quoting 1 Report of Proceedings at 127). The trial court maintained its ruling on the objection after hearing from both parties regarding the claim of recent fabrication. Peralta, 191 Wn. App. at 940-41.
Based on WSP's opening statement where it implied that witnesses recently fabricated their testimony, Peralta should have been permitted to introduce the prior consistent statement. However, in closing argument, WSP argued that any inconsistencies in testimony regarding whether the headlights were on resulted from the passage of time.
In addition, we note that Peralta presented evidence that Tanner had not turned on his headlights. Two witnesses, Riddell and Kirchgatter, testified that Tanner's headlights were off at first and then turned on. Peralta directly contradicted this evidence by testifying that Tanner's headlights were on at the time of the collision.
Based on the evidence presented, the trial court's error did not prejudice Peralta.
We now turn to whether compelling Peralta to identify her consulting expert witness prejudiced her case. Related to this issue is whether the trial court erred by barring Peralta from presenting an alcohol expert.
Peralta entered denials on two requests for admission that related to her blood alcohol level at or near the time of the collision. She also refused to answer interrogatories that sought the reasons for her denial. Peralta claimed the requested information was work product and privileged. WSP moved to compel discovery. ...
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