Sajiun v. Hernandez

• Decision Date: 23 August 2017
• Docket Number: No. 4D16-589.,4D16-589.
• Citation: 226 So.3d 875
• Court: Florida District Court of Appeals
• Parties: Margaret SAJIUN, as Personal Representative of the Estate of Jose Alberto Soto Santiago, Appellant, v. Daniel HERNANDEZ, Appellee.

226 So.3d 875

Margaret SAJIUN, as Personal Representative of the Estate of Jose Alberto Soto Santiago, Appellant,

v.Daniel HERNANDEZ, Appellee.

No. 4D16-589.

District Court of Appeal of Florida, Fourth District.

[August 23, 2017]

Julie H. Littky–Rubin of Clark, Fountain, La Vista, Prather, Keen & Littky–Rubin, LLP, West Palm Beach; Carlos A. Bodden and W. David Bennett of Ellis, Ged & Bodden, P.A., Boca Raton; and Laurence U.L. Chandler, Jr., Boca Raton, for appellant.

Todd R. Ehrenreich and Noel F. Johnson of Weinberg, Wheeler, Hudgins, Gunn & Dial, LLC, Miami, for appellee.

CIKLIN, J.

After a wrongful death jury trial, the personal representative of the decedent's estate recovered nothing. She believes that certain improper evidence resulted in the defense verdict, and she challenges several of the trial court's rulings. We find the trial court did not abuse the wide and sound discretion afforded to trial judges in these types of evidentiary rulings, and we affirm.

This case arose from a collision between a motorcycle driven by the decedent, Jose Alberto Soto Santiago ("motorcycle driver"), and a truck driven by the defendant, Daniel Hernandez ("truck driver"), resulting in the death of Santiago. During trial, the trial court permitted the introduction of the following evidence over the plaintiff's objection: 1) witness testimony regarding the speed the decedent motorcycle driver traveled on his motorcycle in the moments preceding the accident; 2) evidence of the weight of the truck, which was used by the defense expert to calculate the motorcycle's speed at impact; and 3) statements the motorcycle driver's child made to a psychotherapist regarding an argument between the decedent and his girlfriend shortly before the accident.

"A trial court has wide discretion in determining the admissibility of evidence, and, absent an abuse of discretion, the trial court's ruling on evidentiary matters will not be overturned." Kellner v. David , 140 So.3d 1042, 1046 (Fla. 5th DCA 2014) (citation omitted). "The trial court's discretion, however, is limited by the rules of evidence." Wyatt v. State , 183 So.3d 1081, 1084 (Fla. 4th DCA 2015). "[A] trial court's decision does not constitute an abuse of discretion ‘unless no reasonable person would take the view adopted by the trial court.’ " McCray v. State , 71 So.3d 848, 862 (Fla. 2011) (quoting Peede v. State , 955 So.2d 480, 489 (Fla. 2007) ). Stated another way, "[i]f reasonable men could differ as to the propriety of the action taken by the trial court, then the action is not unreasonable and there can be no finding of an abuse of discretion." Bass v. City of Pembroke Pines , 991 So.2d 1008, 1011 (Fla. 4th DCA 2008) (citation omitted). We review each of the challenged evidentiary issues in turn, applying this limited—and very well established—scope of review.

Testimony Regarding Speed of Motorcycle

Before trial, the plaintiff moved in limine to exclude the testimony of three witnesses the defense had listed but who did not actually see the accident, arguing that their testimony was not relevant, and that if it was, any probative value was substantially outweighed by the prejudicial effect of the testimony. The trial court deferred ruling on one witness, and denied the motion without prejudice with respect to the other witnesses.

One of the witnesses testified at trial that he had operated motorcycles since 1980. Based on his familiarity with motorcycles, he could tell the difference between the sounds emitted by the engines of a Japanese motorcycle and a Harley Davidson. A Harley Davidson engine has a distinct sound which has been patented.

Shortly before the accident, the witness was sitting in his backyard. A fence blocked his view of the street, but he heard the sound of a motorcycle engine. Defense counsel asked the witness what he heard, and he responded, "A motorcycle traveling at a high rate of speed, revved up." The court denied plaintiff's motion for mistrial. During a voir dire of the witness, he explained that his testimony was based on his years of experience with hearing motorcycles, and that he did not have any specialized training in the sounds of motorcycle engines. The court ruled that the witness may "say based on what he heard and based on his familiarity with the motorcycles that it was going at a high rate of speed," but that he may not "speculate or guess what the speed was." The witness then testified that he had previously heard "a Japanese motorcycle rev its engine real high ... [Y]ou can hear him going through his gears. And when it's revving really loud ..., that means [it is] traveling at a high rate of speed." He equated that sound to the sound he heard the day of the accident. The witness testified that shortly after he heard the sound of a motorcycle revving its engine, he heard a "popping" noise, as if the motor shut off. He went to investigate and observed that a Japanese motorcycle had been involved in an accident.

Two other defense witnesses, a mother and daughter traveling together, encountered the motorcycle and testified about their observations. The daughter recalled that the "noise of [the] engine" drew her attention to the motorcycle. The motorcycle was "go[ing] by really fast" and "cutting off cars." Within minutes of losing sight of the motorcycle, she came upon the accident scene. The mother testified that the motorcycle was "making a very zoom noise, you know, as in accelerating very quickly," that the motorcycle driver "sped off very rapidly," and that he was traveling at a "much higher" rate of speed than the mother was driving, which was somewhere between 30 and 45 miles per hour. She and her daughter were so startled by the motorcycle that they commented to one another regarding "the noise, the speed, the closeness to our car." After the motorcycle passed her, it took between thirty and ninety seconds before she came upon the accident scene.

The parties' experts disputed the speed the motorcycle was traveling. The plaintiff's accident reconstruction expert testified that the motorcycle driver was traveling an average of fifty-five miles per hour, but going about sixty miles per hour at the time of impact. The defense expert opined that the motorcycle driver was going about ninety to ninety-five miles per hour at the time he braked, but could have been going faster before that point. He believed the motorcycle was going between eighty and eighty-five miles per hour at impact.

On appeal, the plaintiff argues that the three lay witnesses should not have been permitted to testify regarding their perceptions of the motorcycle's operation because their observations before the accident did not correlate to the operation of the motorcycle at the time of the accident.

"As a general rule, the decision of whether to permit evidence of a driver's conduct at a point some distance from the scene of the accident is left to the sound discretion of the trial judge." Russ v. Iswarin , 429 So.2d 1237, 1240 (Fla. 2d DCA 1983) ; see also Hill v. Sadler , 186 So.2d 52, 55 (Fla. 2d DCA 1966) ("Whether evidence should be admitted tending to show the rate of speed of a vehicle at a time and place other than that at the instant of, or immediately prior to, the accident depends upon the facts in the particular case, and rests largely in the discretion of the trial Judge."). Here, the mother and daughter testified as to the decedent's speed somewhere between thirty seconds (according to the mother) and two minutes at most (according to the daughter) before the accident. The other witness's testimony indicates that he heard the motorcycle engine revving up moments before the accident. The trial court's determination that the witnesses' observations were close enough in time to the accident to be relevant was within the trial court's broad discretion. See Russ , 429 So.2d at 1240–41 (affirming exclusion of testimony regarding erratic driving more than a mile from accident site and three or four minutes before accident, but finding court erred in excluding testimony about the driving pattern and speed only three blocks before the accident); Baynard v. Liberman , 139 So.2d 485, 487 (Fla. 2d DCA 1962) (finding that witnesses' testimony that defendant ran the two red lights south of the intersection where the crash occurred was relevant).

With respect to the witness who was sitting in his backyard, the plaintiff also argues that the trial court erred in permitting the witness to give what amounted to expert testimony when he testified that he could determine the speed from the sound of the motorcycle. This court has elaborated on lay witness opinion testimony:

"Generally, a lay witness may not testify in terms of an inference or opinion, because it usurps the function of the jury. The jury's function is to determine the credibility and weight of such testimony." Floyd v. State , 569 So.2d 1225, 1231–32 (Fla. 1990) (citation omitted), cert. denied , 501 U.S. 1259, 111 S.Ct. 2912, 115 L. Ed. 2d 1075 (1991). However, a lay witness is permitted to testify in the form of an opinion or inference as to what he perceived if two conditions are met:

(1) The witness cannot readily, and with equal accuracy and adequacy, communicate what he has perceived to the trier of fact without testifying in terms of inferences or opinions and his use of inferences or opinions will not mislead the trier of fact to the prejudice of the objecting party; and

(2) The opinions and inferences do not require a special knowledge, skill, experience, or training.

§ 90.701, Fla. Stat. (1991). "Lay witness opinion testimony is admissible if it is within the ken of an intelligent person with a degree of experience." Floyd , 569 So.2d at 1232.

Opinion testimony of a lay witness is only permitted if it is based on what the witness has personally perceived. § 90.701, Fla. Stat. (1991) ; Nationwide Mut. Fire Ins. Co. v. Vosburgh , 480 So.2d 140 (Fla. 4th DCA 1985). Acceptable lay opinion testimony typically

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