Opinion
No. 23592-1-III.
Filed: April 18, 2006.
Appeal from Superior Court of Spokane County. Docket No: 02-2-07367-5. Judgment or order under review. Date filed: 10/28/2004. Judge signing: Hon. Neal Q. Rielly.
Counsel for Respondent(s), Jarold Phillip Cartwright, Aty General's Ofc Tort Division, 1116 W Riverside Ave, Spokane, WA 99201-1106.
Counsel for Appellant/Cross-Respondent, Kevin Mahoney, Logan Professional Bldg, 101 E Augusta Ave, Spokane, WA 99207-2407.
Counsel for Respondent/Cross-Appellant, Jarold Phillip Cartwright, Aty General's Ofc Tort Division, 1116 W Riverside Ave, Spokane, WA 99201-1106.
Catherine Hendricks, Assistant Attorney Gen, 900 4th Ave Ste 2000, Seattle, WA 98164-1012
UNPUBLISHED OPINION
Abdulwahab Al-Jazairy ran a red light at Francis Avenue and Monroe Street in Spokane and collided with a truck, killing Tesia Parris. A trooper in a Washington State Patrol vehicle had been following him at speeds up to 70 mph before the collision, but had not sounded his siren. Ms. Parris's family and her estate sued Mr. Al-Jazairy and the State, alleging negligence. At trial, the State presented expert testimony that the Parrises would not have been able to hear a siren under then existing conditions. The jury found both defendants breached their duties of care, but only Mr. Al-Jazairy's conduct was a proximate cause of the collision and Ms. Parris's death.
On appeal, the family and estate raise numerous issues, including whether the superior court erred by excluding lay and expert opinion testimony on the questions of whether Mr. Al-Jazairy was attempting to elude the trooper and whether the trooper was in `pursuit' of Mr. Al-Jazairy, as that term is used in the applicable statutes. We hold the opinion testimony was properly excluded under ER 701 and 702 because it was not helpful to the jury. The jurors could determine whether the facts evidenced `attempting to elude' or `pursuit' using their own experiences, without relying upon a lay witness's or an expert's opinion. Furthermore, any possible error in the court's decision to exclude the opinion testimony was harmless. The opinion testimony related to duty and breach of duty. The jury found the trooper breached his duty of care to motorists, but his conduct was not a proximate cause of the accident.
Additional issues on appeal involve the court's rulings on (1) peremptory and for cause challenges to potential jurors; (2) the motion by the family and estate to exclude the trooper from the courtroom, even though the State had selected him as its designated representative; and (3) the motion for new trial by the family and estate, based on the State's counsel `vouching' for the trooper in his closing argument. We affirm.
At 7:20 p.m. on July 2, 2002, a Ford truck driven by Harry Parris with his wife, Celeste Seidler, and their three daughters as passengers, proceeded north through a green light on Monroe Street at Francis Avenue in Spokane. Mr. Al-Jazairy was traveling east on Francis at a speed estimated between 65 and 70 mph when he ran the red light at Monroe and collided with the Parris truck. At the time of the collision, Washington State Patrol Trooper Robert Fiorentino was following Mr. Al-Jazairy at speeds approaching 70 mph with his lights flashing, but without sounding his siren. Fifteen-year-old Tesia Parris was thrown from the truck and died from her injuries.
The family and Ms. Parris's estate (plaintiffs) filed a complaint for damages against the State and Mr. Al-Jazairy. With respect to the State, they alleged the trooper engaged in a high-speed pursuit of Mr. Al-Jazairy that began west of Monroe on Francis and ended in the fatal collision with the Parris vehicle at the Monroe Street intersection. Specifically, the trooper drove `in close proximity, through heavy traffic and busy intersections, weaving in and out of the passing lane, at speeds approaching 70 mph.' Clerk's Papers (CP) at 9. Further, `at no time during his pursuit did [the trooper] activate his siren to warn drivers of the dangerous situation.' Id.
The plaintiffs stated their claim for relief as negligence, in that the State owed them a duty `to exercise due care in the operation of their vehicles so as not to subject [the plaintiffs] to an unreasonable risk of harm.' CP at 13. The State breached this duty when the trooper `negligently and/or recklessly operat[ed] [his] vehicle at excessive speed, in heavy traffic, through busy intersections in total disregard of public safety.' Id. The complaint alleged `[s]aid breach was a proximate cause' of the plaintiffs' damages. Id.
In its answer to the plaintiffs' complaint, the State cited the written policy of the Washington State Patrol requiring troopers to use emergency equipment, including sirens, only when engaged in a pursuit. The State denied the trooper was in `pursuit' of Mr. Al-Jazairy because that term, as defined in the policy, is limited to situations in which the driver knows the trooper is signaling him to stop. The State claimed Mr. Al-Jazairy was unaware the trooper was behind him. The State averred the trooper's conduct in any event was not a proximate cause of the plaintiffs' injuries.
Before trial, the plaintiffs unsuccessfully moved for summary judgment on the issues of duty of care and proximate cause. Also before trial, the State moved the court in limine to exclude both expert and lay testimony stating an opinion on whether Mr. Al-Jazairy was attempting to elude the trooper and whether the trooper was in pursuit of Mr. Al-Jazairy, as that term is defined by statute or regulation. With respect to opinion testimony regarding Mr. Al-Jazairy's state of mind, the court granted the motion as to lay witnesses, deferred its ruling as to expert witnesses, but ultimately granted the motion as to expert witnesses as well. The court granted the motion as to both lay and expert opinion testimony on the issue of whether the trooper was in pursuit of Mr. Al-Jazairy.
Several eyewitnesses testified at trial. Robert Blackstock said he was stopped at the light at Francis and Maple when he saw Mr. Al-Jazairy's car come up behind him and switch over into the left lane. It appeared it was traveling at a high rate of speed. Mr. Blackstock thought at first the car was going to rear-end him. He saw the State partrol car 10 to 20 yards behind Mr. Al-Jazairy's car. The trooper had his lights on, but not his siren. He observed both drive erratically up Francis, using the center left-turn lane to zig-zag in and out of traffic. According to Mr. Blackstock, after the crash, the trooper reached the north side of the Francis-Monroe intersection and was getting out of his car while Mr. Al-Jazairy's car was still rocking back and forth where it had landed.
Cindy Layton was stopped at Alberta, waiting to make a right turn onto Francis. She noticed Mr. Al-Jazairy was stopped at the light in the eastbound lane on Francis. The light changed green for her first and she turned. Mr. Al-Jazairy passed her a block before the Ash intersection. He was driving erratically. Ms. Layton then heard a quick `bleep-bleep' of a siren and pulled over to let a law enforcement vehicle proceed. Supplemental Report of Proceedings (SRP) (Sept. 29, 2004) at 258-59. She testified the two vehicles were two or three car lengths apart.
Timothy Kilgren was traveling west on Francis that evening. He saw the patrol car following Mr. Al-Jazairy's car in the center turn lane and testified he thought the patrol car was chasing Mr. Al-Jazairy.
Trooper Robert Fiorentino testified Mr. Al-Jazairy stopped at the light at Ash Street. At that point, the trooper was six cars behind him. When the light turned green, Mr. Al-Jazairy made several erratic lane changes without signaling. Once he was through the Maple intersection, he `shot into the two-way left turn lane . . . and passed all the traffic that was in front of him.' Report of Proceedings (RP) (Sept. 29, 2004) at 277. The trooper testified he followed Mr. Al-Jazairy, using his emergency lights but not his siren. He explained, `if you run the siren, it tends to confuse people a lot more that are in front of you. . . . They immediately try to get out of your way. . . . And I've, actually, had people stop dead in front of me. . . . And . . . in this case, I didn't want that to happen.' RP (Sept. 29, 2004) at 279-80.
The trooper further testified he accelerated to 70 mph, but the left-turn lane was clear so he did not perceive a danger to the public. He did not believe Mr. Al-Jazairy knew he was being followed because he took no evasive action. It was not until it was apparent Mr. Al-Jazairy was going to run the red light that the trooper believed other drivers were at risk. But the trooper was still too far back from the intersection at the time for a siren to be heard by people in vehicles entering it.
Mr. Al-Jazairy testified as to his state of mind:
When I first seen the police — the State police car, I seen it after — after the Ash intersection. I seen the flash lights. He was, like, two — two or three cars behind me; but I didn't know he was for me. And, then, when he was gaining speed at me and getting closer, I tried to run away for a minute. Then, when I was almost at the Monroe intersection, I knew he wasn't — he was right behind me. I could even see Mr. Fiorentino's head in the car. So, I decided that I just have to stop because I knew I couldn't make it through the intersection. Then, when I pushed on my brakes, there was no brakes; and I tried to downshift the gear. The car just kept going.
RP (Oct. 4, 2004) at 462-63 (emphasis added).
Further, he responded to questioning by plaintiffs' counsel:
Q. . . . Mr. Al-Jazairy, when — when you indicated that the Trooper was two lengths — two car lengths behind you and closing, was he closing at a high rate of speed?
A. From the best of my memory, he was speeding, sir.
Q. What did you think that the Trooper was attempting to do?
A. Trying to ram me or do something to me.
Q. . . . If the Washington State Trooper wasn't chasing you, isn't it true that you would have stopped for the light at Monroe as well?
A. I think I would have stopped at the light at Monroe.
Q. Well, was there any reason why you wouldn't stop at Monroe if the officer wasn't chasing you?
A. No, sir.
RP (Oct. 4, 2004) at 466-67. Mr. Al-Jazairy also testified that, before the trooper began following him, he was driving only about five miles over the speed limit and had stopped for red lights.
Donald Van Blaricom is a litigation consultant in cases involving police misconduct. He attempted to testify that, in his opinion, the circumstances indicated Mr. Al-Jazairy was attempting to elude the trooper:
Somewhere around Ash, Trooper Fiorentino turned on his overhead lights. And Mr. Al-Jazairy and Trooper Fiorentino both went in the eastbound two-way left turn lane. They accelerated at speeds of 70 to 75 miles an hour. And, when they reached Monroe, Mr. Al-Jazairy did not stop for the traffic signal and, consequently, collided with the Parris vehicle. He had been stopping at traffic signals before that. Now he's not stopping at a traffic signal. This indicates to me that there was a pursuit, that he was aware of the pursuit, and he was trying to evade capture.
RP (Oct. 4, 2004) at 534 (emphasis added).
The State immediately objected to Mr. Van Blaricom's opinion testimony. The court ruled it would not allow any witnesses, whether expert or lay, to testify it was their opinion Mr. Al-Jazairy was attempting to elude or run from the trooper. Mr. Van Blaricom could testify `about his factual understanding of what actions Mr. Al Jazairy was taking,' but the jury had to make the legal conclusion. RP (Oct. 4, 2004) at 541. The court advised the jury to disregard Mr. Van Blaricom's opinion Mr. Al-Jazairy was attempting to elude Trooper Fiorentino.
In its case, the State called three witnesses who had observed Mr. Al-Jazairy's driving on Indian Trail Road. The road intersected with Francis Avenue approximately one mile west of the Francis and Ash intersection, where the trooper began following Mr. Al-Jazairy. Prior to hearing the witnesses, the court ruled it would admit their testimony `because everybody's had a lot of testimony regarding his driving on Indian Trail Road. . . . And I think you [the State] have the right to respond to that.' SRP (Oct. 7, 2004) at 503. The court was referring to Mr. Al-Jazairy's testimony his rate of speed on Indian Trail was 40-45 mph; his speed when he made the left turn onto Francis was `maybe five miles over the . . . limit,' and he stopped at red lights at both Alberta and Ash. RP (Oct. 4, 2004) at 460.
Carrie Schrock testified that on the evening of July 2, 2002, at approximately 7:20 p.m., she was in the Yoke's parking lot adjacent to Indian Trail Road. As she prepared to make a right turn onto Indian Trail Road, she saw a dark green vehicle driving at high speed down the road and swerving in and out of the middle turn lane. She told her boyfriend, `he's going to kill someone.' SRP (Oct. 7, 2004) at 517. The plaintiffs objected to the testimony, but the court admitted it as an excited utterance.
Susan Winters testified she was driving north on Indian Trail Road when she saw a green-colored vehicle with a gold stripe driving down the center lane at a high rate of speed. Over the same objection by the plaintiffs, the court allowed her to testify that she said to her passenger, `[g]eez, that guy is driving crazy. He's going to kill someone.' SRP (Oct. 7, 2004) at 540.
Sheri Schneider was Susan Winters' passenger. She estimated the speed of the vehicle they observed to be 60 mph. She told Ms. Winters, `[w]here are the cops when you need them?' SRP (Oct. 7, 2004) at 554.
The State also presented the testimony of Malcom Crocker, an engineer who specializes in noise acoustics. He testified about the audibility of a police siren in the circumstances present here. Specifically, he addressed the following hypothetical facts: (1) the Parris vehicle was sited 75 feet south of the middle of the intersection; (2) the patrol car was approximately 1,100 feet west of the middle of the intersection; and (3) the siren was on. He opined the driver of the Parris vehicle would not have been able to hear the siren.
Dr. Crocker explained that at this distance, the sound of the siren would register at 69 decibels. The structures on the south side corners of the intersection would mask the sound, particularly the building closest to the Parris vehicle. The effect of the structures would reduce the decibel level of the siren by 20. Dr. Crocker estimated a reduction of another 5 decibels in noise level resulting from the fact the Parrises were inside their vehicle, albeit with the windows open. The noise of the Parrises' truck engine at 30 mph was itself 67 decibels. The noise made by outside traffic accounted for another 67 decibels. Since the traffic and engine noise was over 20 decibels louder than the siren, the sound of the siren would have one-hundredth the sound intensity it otherwise would have to persons in the Parrises' location. It was thus very unlikely the family would have heard the siren, even if the trooper had sounded it.
Counsel for the plaintiffs cross-examined Dr. Crocker:
Q. . . . With respect to the siren, you indicated in your responses to Mr. Cartwright that you were aware of some of the Washington State requirements for police sirens. Is that correct?
A. Yes.
Q. And you're aware that they're supposed to be audible at a minimum of 500 feet. Isn't that true?
A. Don't recall that being in the requirement.
Q. Okay. That's not a requirement that you're familiar with.
A. No. It has a requirement at a hundred feet, a certain sound pressure level.
Q. Okay. So — just so that we're clear, what requirements were you — we may be referring to different requirements, sir. So, why don't you tell me what requirements you were looking at when you say it's required to be heard at a hundred feet.
A. From my memory, it — it states for two classes of sirens what the output should be at a hundred feet. I don't remember the precise numbers now.
Q. And what — what standard were you looking at? Do you know?
A. That was a Washington State requirement on sirens.
SRP (Oct. 6, 2004) at 462 (emphasis added). Later, Dr. Crocker explained the Washington State information he had was that at one hundred feet, the output of the siren has to be not less than `so many' decibels. SRP (Oct. 6, 2004) at 491.
The court instructed the jury as follows:
INSTRUCTION 5
. . . .
(4) The plaintiffs claim that the defendant Washington State Patrol was negligent in engaging in a high speed chase of defendant Al-Jazairy without operating a siren.
(5) The plaintiffs claim that these acts were also a proximate cause of injuries and damage to the plaintiffs.
CP at 530 (emphasis added).
INSTRUCTION 11
The term `proximate cause' means a cause which in a direct sequence produces the injury complained of and without which such injury would not have happened.
There may be more than one proximate cause of an injury.
CP at 536.
INSTRUCTION 16
A statute provides that:
(1) The driver of an authorized emergency vehicle, . . . when in the pursuit of an actual or suspected violator of the law, . . . may exercise the privileges set forth in this section. . . .
(2) The driver . . . may:
. . . .
(c) Exceed the maximum speed limits so long as he does not endanger life or property.
CP at 541.
INSTRUCTION 17
A statute provides that:
. . . .
(4) Any authorized emergency vehicle may be equipped with a siren . . . capable of emitting sound audible under normal conditions from a distance of not less than five hundred feet . . . but the siren shall not be used except . . . in the immediate pursuit of an actual or suspected violator of the law, in which latter event the driver of the vehicle shall sound the siren when reasonably necessary to warn pedestrians and other drivers of its approach.
CP at 543; see RCW 46.37.380 .
During deliberations, the jury submitted this question to the court: `If the State of Washington is found partially negligent in this case, is the liability of the State limited to the percentage of the negligence assigned to the State multiplied by the total amount of the award we allow?' CP at 559. The court responded in writing, `[p]lease reread your instructions.' Id.
The jury reached the following special verdict, finding the State negligent but not the proximate cause of the plaintiffs' damages:
QUESTION 1: Was Defendant Abdulwahab Al-Jazairy negligent?
Answer: Yes.
QUESTION 2: Was Defendant Abdulwahab Al-Jazairy's negligence a proximate cause of damage to Plaintiffs?
Answer: Yes.
QUESTION 3: Was Defendant State of Washington negligent?
Answer: Yes.
QUESTION 4: Was Defendant State of Washington's negligence a proximate cause of damage to Plaintiffs?
Answer: No.
CP at 560-61. The jury awarded the plaintiffs damages totaling $3,649,336 against Mr. Al-Jazairy alone.
The plaintiffs filed motions for judgment notwithstanding the verdict and for new trial, both of which the court denied.
The plaintiffs appealed. The State filed a cross appeal, which was not addressed in its brief. The cross appeal is therefore deemed abandoned. See Park Hill Corp. v. Sharp, 60 Wn. App. 283, 287 n. 4, 803 P.2d 326 (cross appeal which is not argued or briefed is considered abandoned) (citing Cranor v. Cooper, 203 F.2d 833 (9th Cir.), cert. denied, 346 U.S. 839 (1953)), review denied, 117 Wn.2d 1005 (1991).
The plaintiffs first assign error to the court's denial of their motion for summary judgment on issues of liability. They contend the denial of summary judgment as to the definition of pursuit and the law applicable to vehicular pursuit, as set forth in RCW 46.61.035, caused confusion at trial.
The plaintiffs had filed a motion for summary judgment. In their memorandum in support of the motion, the plaintiffs argued there was no dispute of material fact as to (1) whether the trooper was engaged in a pursuit of Mr. Al-Jazairy, (2) whether that pursuit breached the standard of care under the circumstances, and (3) whether that pursuit was a proximate cause of the collision. They relied upon the testimony of Mr. Al-Jazairy at his criminal trial that he saw the trooper behind him sometime after Ash Street. They also cited the trooper's deposition testimony that he followed Mr. Al-Jazairy down the center lane of Francis Avenue at speeds up to 70 mph without sounding his siren.
The plaintiffs argued these undisputed facts proved the trooper violated the requirements of both RCW 46.61.035, that a driver of an emergency vehicle drive with due regard for the safety of others, and the Washington State Patrol's pursuit policy, that an officer sound his siren when in pursuit of another vehicle.
The applicable statute reads in pertinent part:
(1) The driver of an authorized emergency vehicle . . . when in the pursuit of an actual or suspected violator of the law . . . may exercise the privileges set forth in this section, but subject to the conditions herein stated.
(2) The driver of an authorized emergency vehicle may:
. . . .
(c) Exceed the maximum speed limits so long as he does not endanger life or property;
. . . .
(4) The foregoing provisions shall not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons, nor shall such provisions protect the driver from the consequences of his reckless disregard for the safety of others.
The Washington State Patrol policy defines `vehicular pursuit' as occurring only when the driver knows the officer is signaling him to stop.
The policy provides:
An attempt by a uniformed Washington State Patrol (commissioned) officer in an officially marked patrol vehicle to stop a moving vehicle where the driver of such vehicle is aware the officer is signaling the vehicle to stop and is resisting the stop by maintaining or increasing vehicle speed, making evasive maneuvers, or is otherwise ignoring the officer's attempt to stop the vehicle.
CP at 149. The policy also sets forth guidelines for pursuits, including `[e]mergency equipment shall be in operation throughout the pursuit.' CP at 150.
The court denied the motion for summary judgment. In a memorandum opinion, it reasoned that `[c]onsidering all reasonable inferences of fact in the light most favorable to the State, the Plaintiff is not entitled to a judgment in its favor as a matter of law; and that includes the issue of pursuit.' CP at 233.
The law is well-settled. `[D]enial of summary judgment cannot be appealed following a trial if the denial was based upon a determination that material facts are in dispute and must be resolved by the trier of fact.' Johnson v. Rothstein, 52 Wn. App. 303, 304, 759 P.2d 471 (1988); see also Bulman v. Safeway, Inc., 96 Wn. App. 194, 198, 978 P.2d 568 (1999), rev'd on other grounds, 144 Wn.2d 335, 27 P.3d 1172 (2001). On the other hand, denial of summary judgment as to substantive legal issues may be reviewed on appeal following a trial. See McGovern v. Smith, 59 Wn. App. 721, 734-35, 801 P.2d 250 (1990).
Here, most of the plaintiffs' arguments and the superior court's ruling on summary judgment concerned the facts, not substantive legal issues. The plaintiffs' legal argument that the court erred by failing to grant summary judgment as to the definition of pursuit and the law applicable to vehicular pursuit is not appealable because the superior court properly applied the law at trial. The term `pursuit' has a common and ordinary meaning. See definitions of `pursue' and `pursuit' in Webster's Third New International Dictionary at 1848 (1993). The court was therefore not required to define it for the jury. State v. Guloy, 104 Wn.2d 412, 417, 705 P.2d 1182 (1985), cert. denied, 475 U.S. 1020 (1986). At trial, the court correctly instructed the jury on the law applicable to vehicular pursuit. The plaintiffs' situation is distinguishable from that in McGovern, which involved a legal issue the appellate court held the superior court had incorrectly determined when it denied summary judgment and that error carried over to trial.
The plaintiffs further claim the court abused its discretion when it granted the State's motion in limine. The court restricted lay witnesses to testimony that it appeared to them the trooper was pursuing Mr. Al-Jazairy and prohibited them from testifying he was eluding. It also limited the plaintiffs' expert to testifying about the standard of care and prohibited the expert from offering an opinion the trooper was in pursuit or was negligent. The State replies any error was harmless because the jury found the trooper's conduct was negligent, but not the proximate cause of the accident.
The court ruled the lay witnesses could testify as to their observations, but could not testify as to whether the trooper was in pursuit of Mr. Al-Jazairy, as the term is used in RCW 46.61.035 . The court reasoned the jurors could make that determination based upon their own understanding and experience:
As to the lay testimony, I'm satisfied that the jury's going to have to decide the aspect of the case against the State based upon the instructions they receive regarding what `pursuit' is and whether this officer was in pursuit. And, if he was in pursuit, was he negligent in that pursuit and so on and so on. But they have a right to testify as to what their observations are. There was lots of observations on this. I ruled on this issue prior to the summary judgment motions, and I think that they can testify to their natural inferences, what they draw from that, that are pursuant to Evidence Rule 701. And I think it's well within the ability of the lay witnesses to testify to their perceptions, whether or not the officer was following, chasing, that sort of thing and that would include the word `pursuit,' `pursuing.' I don't want a legal relevance put on that, and I want us all to be very careful about that. But, you know, if they use those natural words, I don't see that as that prejudicial to the State. And I think they have the right to do that.
And I'll reserve on Mr. Blaricom [plaintiffs' expert].
RP (Sept. 20, 2004) at 73-74.
The court also stated it would not allow lay or expert opinion testimony on whether Mr. Al-Jazairy was attempting to elude, although the lay witnesses `can testify to what they perceived, the speeding, the lane changing, the weaving. They can testify to the fact that they think that the officer was chasing Mr. Al Jazairy and following Mr. Al Jazairy.' RP (Sept. 20, 2004) at 75-76.
The court later addressed the issue with respect to the plaintiffs' expert, Mr. Van Blaricom, holding he, too, could not testify the trooper was in `pursuit' as used in RCW 46.61.035 :
But, first of all, subject to Mr. Van Blaricom being qualified as an expert, he could testify to the standard of care or the standards in this, such as, a duty to drive with care, to use a siren when in pursuit, those kinds of things. But he cannot testify that the officer was in pursuit. He cannot testify that the officer was negligent. I think he can testify to certain factual issues that would call for a pursuit or might not call for a pursuit but, otherwise, he's going to invade the province of the jury. I'm going to instruct the jury on what the standard is or what the law is in this particular instance. And he can't say that that's the law, and he can't say that the officer was in violation of that law.
But I think he can say that, if you had these factual circumstances, does that justify a pursuit or does that not justify a pursuit, those kinds of things. And, if we need to talk about that a little bit more once we get there, I don't have any problem with that. He may be able to testify to times when factual situations call for use of sirens, lights, pursuit, et cetera.
But I want to be real careful on that. I certainly agree with the State that he can't be testifying to legal conclusions.
RP (Sept. 21, 2004) at 120-21.
The rules of evidence govern the admission of opinion testimony, and the determination turns primarily on whether the opinion evidence is helpful to the trier of fact. ER 701 provides that `[i]f the witness is not testifying as an expert, the witness's testimony in the form of opinions or Inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness; [and] (b) helpful to a clear understanding of the witness's testimony or the determination of a fact in issue.' Under ER 702, `[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.' Under ER 704, `[t]estimony in the form of an opinion or inferences otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.'
The issue is whether the court erred when it prohibited both lay and expert witnesses from giving their opinions as to whether Mr. Al-Jazairy was attempting to elude or whether the trooper was in pursuit of him. We must determine whether such testimony would have been helpful to the trier of fact in deciding those questions.
The State relies on State v. Farr-Lenzini, 93 Wn. App. 453, 970 P.2d 313 (1999). There, the defendant appealed a criminal conviction for attempting to elude. The court reversed `[b]ecause the officer's opinion testimony as to Farr-Lenzini's state of mind constituted harmful error.' Id. at 456. The trooper testified he followed the defendant's vehicle with siren and overhead lights on, while she drove at speeds up to 100 mph and he struggled to keep within several hundred feet of her. In response to a question asking him for his opinion as to what the defendant's driving exhibited to him, the trooper testified `[i]t exhibited to me that the person driving that vehicle was attempting to get away from me and knew I was back there and refusing to stop.' Id. at 458.
The defendant testified she did not realize the trooper was following her and she pulled over as soon as she saw him. According to her expert, `[b]ased upon information he obtained from the siren manufacturer and the Washington State Patrol, along with other technical data, environmental factors, and the distances reported by the trooper, . . . it was very probable that [the defendant] could not hear the police sirens inside [her vehicle].' Id.
The court held the trooper's opinion, either as an expert or as a lay person, was not helpful to the jury. "Generally, expert evidence is helpful and appropriate when the testimony concerns matters beyond the common knowledge of the average layperson, and does not mislead the jury to the prejudice of the opposing party." Id. at 461 (quoting State v. Jones, 59 Wn. App. 744, 750, 801 P.2d 263 (1990), review denied, 116 Wn.2d 1021 (1991)). The court held that deciding whether a driver was attempting to elude was something that `a lay jury, relying upon its common experience and without the aid of an expert, is capable of deciding.' Id. at 462.
Likewise here, the opinions of the expert and the lay persons who were eyewitnesses would not have been helpful because the jurors were capable of drawing their own conclusions on eluding and pursuit from the facts offered in evidence, based upon their common and ordinary experience. There was no error.
It is also clear from the special verdict that the jury determined the issues of pursuit and attempting to elude in the plaintiffs' favor as it found the State was negligent. Accordingly, the court's limitations on the opinion testimony of the lay and expert witnesses on these issues did not prejudice the plaintiffs. Even if the superior court's rulings were incorrect, any error was harmless.
The plaintiffs contend the court abused its discretion when it allowed the defendants, Mr. Al-Jazairy and the State, two peremptory challenges each, based upon the court's finding they had conflicting interests. RCW 4.44.130 provides that `[e]ach party shall be entitled to three peremptory challenges. . . . If the court finds that there is a conflict of interests between parties on the same side, the court may allow each conflicting party up to three peremptory challenges.'
Before jury selection, the court suggested that the plaintiffs be allowed four peremptory challenges and the State and Mr. Al-Jazairy be allowed two each because of `some antagonistic differences between their respective positions.' RP (Sept. 27, 2004) at 224. Plaintiffs argued against the suggestion, asserting that in a situation where the defendants are simply trying to apportion liability, an insufficient conflict exists to allow additional peremptory challenges. The State argued the court had no authority under the statute to give the plaintiffs more than three peremptory challenges, but the statute did authorize additional peremptory challenges to parties with conflicting interests, such as it and Mr. Al-Jazairy. The court agreed with the State and gave each defendant two peremptory challenges — a total of four for the defendants, one more than the total of three generally given to each side.
`[T]he right of peremptory challenge is wholly a creature of statute, and not of common law.' Crandall v. Puget Sound Traction, Light Power Co., 77 Wash. 37, 40, 137 P. 319 (1913). The Crandall court, in applying a predecessor statute to the present RCW 4.44.130, held the superior court had no authority to grant additional peremptory challenges to parties with antagonistic interests. Id. The predecessor statute did not include the provision now contained in RCW 4.44.130 that `[i]f the court finds that there is a conflict of interests between parties on the same side, the court may allow each conflicting party up to three peremptory challenges.'
The court here correctly determined it had no authority beyond that given by the statute and could not increase the number of peremptory challenges available to the plaintiffs. The court also correctly held the plain language of the statute authorized the court to give the two defendants up to three peremptory challenges each, if their interests were conflicting.
The question then is whether the court abused its discretion when it determined the interests of the State and Mr. Al-Jazairy were conflicting. RCW 4.44.130 provides authority for additional peremptory challenges if a conflict of interest exists; it does not require that there be a substantial conflict of interest. Here, Mr. Al-Jazairy was liable — he had been convicted of vehicular homicide as a result of the collision. In the civil suit, he stood to benefit if the jury also found the State partially responsible for the plaintiffs' damages. That finding would reduce the amount of any damages assessed against him.
These circumstances support a finding the defendants had conflicting interests. The court did not abuse its discretion by granting additional peremptory challenges to the defendants because of this conflict of interests.
The plaintiffs assign error to the court's grant of the State's challenge for cause, on the basis of implied rather than actual bias, of two prospective jurors who were State employees. They argue the court erred by not limiting challenges to prospective jurors who were employees of the adverse party.
RCW 4.44.180 now provides that `[a] challenge for implied bias may be taken for . . . the following causes: . . . (2) Standing in the relation of . . . a partner in business with, or in the employment for wages, of a party.' (Emphasis added.) The legislature amended the statute in 2003, the year before the trial here. The amendment substituted `a party' for `the adverse party.' Laws of 2003, ch. 406, sec. 7. The trial court held the statute, as amended, did not require that the challenged juror be an employee of the adverse party.
When construing a statute, [the court] must ascertain whether it has one, or more than one, reasonable meaning. If it has only one reasonable meaning, [the court] must implement that meaning, which is said to be `plain.' If it has two or more reasonable meanings, it is `ambiguous,' and [the court] must implement whichever meaning the legislature intended.
Martini v. State, 121 Wn. App. 150, 164-65, 89 P.3d 250 (2004) (footnotes omitted), review denied, 153 Wn.2d 1023 (2005).
The court in Martini considered the meaning of RCW 4.44.180 (2), prior to its 2003 amendment, and held that the meaning was plain and provided a challenge for implied bias only in circumstances in which the potential juror was employed by the adverse party. Martini, 121 Wn. App. at 166 . In dicta, the court observed the legislature's amendment of the statute in 2003 manifested an intent to expand the availability of challenges for cause. Id. at 168. But the amendment did not apply there because it occurred after the trial in that case.
We agree the legislature's deletion of the adjective `adverse' in relation to the term `party,' as used in RCW 4.44.180 (2), unambiguously indicates a legislative intent to make challenges for implied bias available regardless of whether the juror is employed by the party adverse to the party raising the challenge. The court properly allowed the State to challenge for implied bias prospective jurors who were state employees.
The plaintiffs complain the court erroneously denied their challenge for cause of a juror who exhibited actual bias. The juror, in her response to a written jury questionnaire, stated she did not believe damages for loss of life were appropriate unless the loss impaired the financial stability of the family. The court's ruling forced the plaintiffs to use a peremptory challenge to remove her.
The record reflects the prospective juror assured the court and counsel, in response to their questions, she could set aside her personal views. The court deemed those assurances credible. Hence, the court's refusal to dismiss her for cause was not an abuse of discretion.
In any event, the plaintiffs have not shown the court's refusal to dismiss the potential juror for cause prejudiced them, since they exercised a peremptory challenge to remove her and made no showing that another, biased juror sat on the case. The Washington Supreme Court has held that `if a defendant through the use of a peremptory challenge elects to cure a trial court's error in not excusing a juror for cause . . . and is subsequently convicted by a jury on which no biased juror sat, he has not demonstrated prejudice.' State v. Fire, 145 Wn.2d 152, 165, 34 P.3d 1218 (2001) (citing United States v. Martinez-Salazar, 528 U.S. 304, 120 S. Ct. 774, 145 L. Ed. 2d 792 (2000)). In so holding, the court `expressly abandon[ed]' earlier Washington case law that stated a contrary rule. Id.
This court has recognized Fire's application in an appeal in a civil case. See Hill v. Cox, 110 Wn. App. 394, 410, 41 P.3d 495 (appellant formally abandoned its argument in light of Fire's holding that even if a juror should have been excused for cause, once a peremptory challenge is exercised, some showing that a biased juror actually sat on the case is required), review denied, 147 Wn.2d 1024 (2002).
The plaintiffs argue their situation is distinguishable because the prejudice resulting from the forced use of one of their peremptory challenges to remove the allegedly biased juror was magnified by the fact the defendants had an extra peremptory challenge, and by the fact the State was able to dismiss for cause potential jurors who were state employees. It is not. The critical fact in Fire was that the defendant had not shown the exhaustion of his peremptory challenges led to a biased juror sitting on his case. Nor have the plaintiffs here shown that any juror who actually sat on their case was biased.
The next issue concerns the admission into evidence of the State partrol's vehicular pursuit policy. The court overruled the plaintiffs' objection to its admission on the ground they had failed to timely object under ER 904(c), which states a party must serve its written objection to a document within 14 days of receiving notice the opposing party will offer the document into evidence. But the rule also specifically excepts objections as to relevancy from the notice requirement.
ER 904 provides:
(a) . . . In a civil case, any of the following documents proposed as exhibits in accordance with sections (b) of this rule shall be deemed admissible unless objection is made under section (c) of this rule:
. . . .
(6) A document . . . relating to a material fact and having . . . circumstantial guaranties of trustworthiness. . . .
(b) Notice. Any party intending to offer a document . . . must serve on all parties a notice, no less than 30 days before trial, stating that the documents are being offered . . . unless objection is served within 14 days of the date of the notice. . . .
. . . .
(2) . . . [O]bjection on the grounds of relevancy need not be made until trial.
The plaintiffs called Trooper Fiorentino in their case in chief. During cross examination of the trooper, counsel for the State moved to admit Exhibit 503, the state patrol policy requiring use of `emergency lights and siren' when a trooper is in `pursuit' of another vehicle, that is, when the driver of the other vehicle knows the following trooper wants him to stop. RP (Sept. 30, 2004) at 441. Plaintiffs' counsel stated he did not object to the authenticity of the document, but `in terms of the relevance of the document,' he objected. Id. at 441-42. The court overruled the objection because counsel had not raised it `on [ER] 904.' Id. at 442.
The policy is quoted at page 16 of this opinion, infra.
The record reflects the plaintiffs' objection was that the policy was not relevant. The notice requirements of ER 904(b) do not apply to an objection on the ground of relevancy; the rule states such an objection need not be made until trial. ER 904(c). The court erred when it overruled the plaintiffs' objection on ER 904 grounds.
The issues then are (a) whether the policy was relevant evidence; and (b) if it was not relevant, whether its admission prejudiced the plaintiffs.
ER 401 defines relevant evidence as that which tends to make the existence of any fact of consequence to the action more probable or less probable. One of the material facts at issue was whether the trooper breached the duty codified at RCW 46.61.035 that he not endanger the lives of others in following Mr. Al-Jazairy. RCW 46.37.380, on which the jury was instructed, provides that the driver of an emergency vehicle shall not sound a siren unless in pursuit of a violator and the siren is `reasonably necessary to warn pedestrians and other drivers.' CP at 543. The latter statute does not limit `pursuit' to circumstances in which the driver of the followed vehicle is aware of the attempt to stop him. And, the ordinary meaning of `pursuit' does not include such a requirement. See definitions of `pursue' and `pursuit' in Webster's Third New International Dictionary at 1848 (1993). See also Tidwell v. City County of Denver, 83 P.3d 75, 80-82 (Colo. 2003) (the officer was engaged in a `pursuit,' as that term is commonly understood).
Thus, the state patrol policy is contrary to the statute insofar as the policy does not require a siren unless the driver knows the trooper is attempting to pull him over. As the policy is contrary to statute, its admission was error.
But `[b]ecause no constitutional right is implicated by the admission of irrelevant evidence, the applicable harmless error test is whether, within reasonable probabilities, the trial's outcome would have been materially affected had the error not occurred.' Cobb v. Snohomish County, 86 Wn. App. 223, 236, 935 P.2d 1384 (1997) (citing State v. Braham, 67 Wn. App. 930, 939, 841 P.2d 785 (1992)), review denied, 134 Wn.2d 1003 (1998).
Here, no reasonable probability exists that the jury's verdict would have been different had the policy not been admitted. The jury's special verdict demonstrates that introduction of evidence of the state patrol policy was harmless. While the trooper testified he did not activate his siren because he was not in `pursuit' of Mr. Al-Jazairy as defined in the policy, the jury nonetheless found the State negligent. By doing so, it either believed Mr. Al-Jazairy knew the trooper was pursuing him and the trooper should have activated his siren, or it determined under the jury instructions that Mr. Al-Jazairy's knowledge was not a requirement and the trooper was negligent in failing to use his siren to warn drivers of other vehicles. Regardless, the jury also determined the trooper's failure to sound his siren was not the proximate cause of the accident. In these circumstances, any error in admitting the state patrol policy was harmless.
The plaintiffs assert the court abused its discretion when it allowed the trooper to remain in the courtroom as a designated party representative under ER 615(2), when all other witnesses were excluded. ER 615 provides that `[a]t the request of a party the court may order witnesses excluded so that they cannot hear the testimony of other witnesses. . . . This rule does not authorize exclusion of . . . (2) an officer or employee of a party which is not a natural person designated as its representative by its attorney.'
At the beginning of trial, the court ordered all witnesses excluded from the courtroom. At the State's request and over plaintiffs' objection, the court allowed Trooper Fiorentino to remain in the courtroom and seated at counsel table as the State's designated representative. The court noted that, because the trooper had previously testified in the criminal trial and by deposition, its ruling did not prejudice the plaintiffs. The court was apparently referring to the availability of the trooper's prior testimony for use by the plaintiffs to impeach him should his testimony in the trial vary from his previous testimony.
Review of an ER 615 decision is de novo as to whether a witness qualifies under the exemption for a party representative. Opus 3 Ltd. v. Heritage Park, Inc., 91 F.3d 625, 628 (4th Cir. 1996). But `[q]uestions concerning the exclusion of witnesses and the violation of [ER 615] are within the broad discretion of the trial court and will not be disturbed, absent manifest abuse of discretion.' State v. Schapiro, 28 Wn. App. 860, 867, 626 P.2d 546, overruled in part on other grounds by State v. Fry, 30 Wn. App. 638, 638 P.2d 585 (1981).
The trooper fell within ER 615's description of a proper designated representative — he was an employee of the State. Therefore, abuse of discretion is the appropriate standard of review. See Schapiro, 28 Wn. App. at 867 . No published Washington case addresses a situation similar to that here, in which the superior court permitted a fact witness to sit with counsel as a designated representative. But the majority of cases from federal jurisdictions have upheld such trial court decisions. See Kurtis A. Kemper, J.D., Annotation, Exclusion of Witnesses under Rule 615 of Federal Rules of Evidence, 181 A.L.R. Fed. 549, sec. 23(a) at 608 (2002).
For example, in the case cited by the State, Queen v. Washington Metropolitan Area Transit Authority, 842 F.2d 476, 481-82 (D.C. Cir. 1988), a pedestrian who was struck by a bus, challenged on appeal the court's refusal to exclude the driver of the bus involved in the accident from the courtroom during opening arguments and during the testimony preceding that of the bus driver. The court held the bus driver, as the defendant's designated representative, fell within the plain language of the second exception of Rule 615 of the Federal Rules of Evidence.
Id. at 481.
Likewise, the court here did not abuse its discretion by permitting the trooper to remain in the courtroom as the designated representative of the State.
The plaintiffs contend the court erred by permitting the State to refer to the prior trial of Mr. Al-Jazairy as a criminal trial. The context of these references was the State's impeachment of Mr. Al-Jazairy's testimony with his allegedly prior inconsistent testimony at the criminal trial.
Counsel for Mr. Al-Jazairy had successfully moved in limine to require counsel and witnesses to refer to the prior criminal trial as the `prior court proceedings.' RP (Sept. 20, 2004) at 40-42. The State moved the court to change its ruling when Mr. Al-Jazairy testified in the plaintiffs' case that he tried to get away from the trooper. The State wanted to impeach Mr. Al-Jazairy with his prior testimony at his criminal trial that he was not attempting to elude the trooper and that when he realized the trooper was after him, he tried to stop and his brakes failed.
The court ruled it would allow impeachment, but it questioned why reference to the nature of the criminal charges was necessary. The State's counsel argued it was important to show motive in that Mr. Al-Jazairy's testimony changed, depending on whether the risk to him was a criminal conviction or civil liability. The plaintiffs contended any reference to the prior trial as criminal was unduly prejudicial and had no probative value.
The court ultimately ruled it would allow the State to ask Mr. Al-Jazairy if he made the allegedly inconsistent statements in a prior, criminal proceeding. It would not allow the State, however, to identify what the criminal charges were in that prior, criminal proceeding.
Impeachment by prior, inconsistent statements of a witness is proper. See ER 613. The plaintiffs do not deny this is so; they simply argue the reference to the prior proceeding as being a criminal proceeding was so prejudicial as to outweigh any value it had. But the fact Mr. Al-Jazairy made the allegedly inconsistent statements in a criminal proceeding was relevant to the State's impeachment that he had a motive to lie because he was attempting to avoid a criminal conviction. And, by inference, he would also lie in the civil trial because he wanted to shift some of the tort liability to the State.
The court may nevertheless exclude relevant evidence `if its probative value is substantially outweighed by the danger of unfair prejudice.' ER 403. The trial court's decision is reviewed only for abuse of discretion. Bell v. State, 147 Wn.2d 166, 181-82 n. 10, 52 P.3d 503 (2002) (citing Robert Aronson, The Law of Evidence in Washington at 403-04 (3d ed. 2001)). The court here did not abuse its discretion. The fact the prior proceedings were criminal was a significant part of the impeachment value of the evidence. That criminal charges were filed in Ms. Parris's death would not have surprised the ordinary person. Any prejudice resulting from so informing the jurors was mitigated by the jury not being advised of the specifics of the criminal charges filed or the outcome of the criminal trial. There was no error.
The plaintiffs assign error to the court's admission of the testimony of the three witnesses who had observed reckless driving by Mr. Al-Jazairy on Indian Trail Road. They argue the testimony was irrelevant because it concerned Mr. Al-Jazairy's driving before the trooper got involved.
The court's admission of this testimony must be viewed in the context of Mr. Al-Jazairy's testimony, already given at the trial, that his rate of speed down Indian Trail was 40-45 mph, that his speed when he made the left turn onto Francis was `maybe five miles over the . . . limit,' and that he stopped at red lights at both Alberta and Ash. RP (Oct. 4, 2004) at 460. The State's witnesses testified he was driving 60 mph down Indian Trail Road and was using the center pass lane to weave through traffic.
The testimony was relevant. The plaintiffs put at issue the subject of how Mr. Al-Jazairy drove on Indian Trail by asking him about it during their examination of him in their case in chief and by contrasting his description of that earlier driving with his testimony about how his driving was affected after he realized the trooper was following him. Once the plaintiffs had elicited this testimony, the State was entitled to respond to it.
The plaintiffs further claim the court erred when it denied their motion for new trial because of improper closing argument by the State. Counsel argued to the jury:
[I] just want to leave you with this thought: This trooper did the best he could out there that day. He put his training to work. He put his knowledge to work. . . . He made the best decision he could under the circumstances.
. . . .
The Washington State Patrol stands behind Trooper Fiorentino. The Attorney General's Office stands behind him. We're asking you today to stand behind him as well.
RP (Oct. 13, 2004) at 826.
The plaintiffs did not object at the time, but later asserted in their motion for new trial the State's comments amounted to vouching and a `golden rule' argument. CP at 576. The court agreed the comments constituted vouching. But it denied the motion, reasoning the comments did not rise to the level of `plain error' affecting a substantial right or the fairness of the trial. CP at 599. The court applied the factors set forth in United States v. Rudberg, 122 F.3d 1199, 1204 (9th Cir. 1997): The court considered (1) the form of vouching; (2) the implication the prosecutor had knowledge outside the record of the witness's truthfulness or the capacity to monitor that truthfulness; (3) any inference the court was monitoring the witness's veracity; (4) the degree of personal opinion asserted; (5) the timing of the vouching; (6) the extent that the witness's credibility was attacked at trial; (7) the specificity and timing of the curative instruction; and (8) the importance of the witness's testimony to the case.
The court reasoned the vouching `was not specific in nature.' CP at 599. It also noted counsel told the jurors they were the sole judge of the credibility of witnesses, as was stated in the court's instructions to the jury. The court concluded, `I do not believe the statements made by counsel imply that the Attorney General had extra knowledge of the capacity to monitor the witness's truthfulness or support an inference that the Court was monitoring the witness's truthfulness.' Id.
"Improper prosecutorial vouching occurs when the prosecutor places the prestige of the government behind the witness by providing personal assurances of the witness's veracity." United States v. Ortiz, 362 F.3d 1274, 1278 (9th Cir. 2004) (emphasis added) (quoting United States v. Smith, 962 F.2d 923, 933 (9th Cir. 1992)). The court in Ortiz held there was `no plain error in simply eliciting on direct examination a witness's obligation through a plea agreement to tell the truth.' Id. But the prosecutor in Ortiz went beyond that when he suggested he or the court would know whether the witness gave truthful testimony as promised in the plea agreement. Id. at 1278-79. The court on appeal noted that `[w]hether the witnesses have testified truthfully . . . is entirely for the jury to determine; it is improper to communicate that a credibility determination has been made by the [prosecutor], law enforcement agents, or the court, or that the government knows whether the witness is being truthful and stands behind the veracity of the witness's testimony.' Id.
Nevertheless, the court in Ortiz held that the prosecutor's statements, although vouching, did not warrant reversal for plain error in light of the circumstances present there. Specifically, the court instructed the jury to view the witness's testimony with great caution because the witness had received favored treatment from the government. The testimony of law enforcement officers also corroborated the witness's testimony. Id. at 1279.
Likewise here, reversal is unwarranted. As set forth by the court in its memorandum opinion denying the plaintiffs' motion for new trial, the State's argument that the state patrol and the Attorney General stood behind the trooper was nonspecific in nature — it was not a direct assertion the trooper's testimony was more credible than that of the other eyewitnesses or the State had extra knowledge or capacity to monitor truthfulness. The court had also instructed the jurors they were the sole judge of credibility.
While the State's argument may have constituted vouching, the circumstances here do not support the grant of new trial as a remedy for the improper argument. The court did not err.
The plaintiffs contend the court abused its discretion when it denied their motion for new trial based on alleged juror misconduct. The plaintiffs inferred misconduct from the jury's written question during deliberations as to the effect of joint and several liability. They assert the evidence of the State's fault was so overwhelming that the only explanation of the verdict is the jury intended to nullify the effect of joint and several liability.
The plaintiffs' argument is based upon mere supposition and not on the objective proof needed to show jury misconduct. See Adkins v. Aluminum Co. of Am., 110 Wn.2d 128, 137, 750 P.2d 1257, 756 P.2d 142 (1988). The verdict can just as easily be explained in the way the court did in its decision denying the motion, noting the jury chose to believe the State's evidence the plaintiffs would not have been able to hear a siren, even if the trooper had sounded it. There was no error.
Plaintiffs also argue the cumulative effect of the alleged errors denied them a fair trial. See State v. Russell, 125 Wn.2d 24, 93-94, 882 P.2d 747 (1994), cert. denied, 514 U.S. 1129 (1995). The only error concerned the admission of the state patrol policy, which defined `pursuit' as occurring when the driver knows he is being signaled by a trooper to pull over and he refuses to do so. But the error did not affect the verdict because the court properly instructed the jury on the law, and the jury determined that although the trooper was in pursuit of Mr. Al-Jazairy, the trooper's conduct was not a proximate cause of the accident. The doctrine of cumulative error is inapplicable in these circumstances.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040 .
SCHULTHEIS, J. and THOMPSON, J. Pro Tem., concur.