People v. Hughes ( 2020 )

Filed 6/10/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E069445
v. (Super.Ct.No. FSB1304351)
MICHAEL DWAYNE HUGHES, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. J. David Mazurek,
Judge. Reversed.
Gene D. Vorobyov, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Eric Swenson and Michael D.
Butera, Deputy Attorneys General, for Plaintiff and Respondent.
1
Michael Dwayne Hughes hit another vehicle whose driver failed to yield to him.
The three people in the car he hit died from their injuries. Hughes had been previously
convicted of driving under the influence and had been drinking on the night of the
accident. The prosecution charged Hughes with three counts of murder, among other
charges, on the theory he knew the risk of driving while intoxicated but drove anyway.
The critical issue at trial was whether Hughes’s drinking was a substantial factor
in causing the accident. The police and highway patrol both concluded the deceased
driver was the primary cause of the accident, and their testimony suggested Hughes’s
speed and drinking may have played a role, but that the physical evidence suggested he
was not driving at an unsafe speed and he responded appropriately in attempting to avoid
the collision.
After the jury heard that testimony, however, the prosecution called as an expert
witness a second member of the highway patrol team which investigated the accident.
The expert disagreed with his colleagues and offered new expert testimony—not
previously disclosed to the defense in violation of the criminal discovery statutes—that
the accident wouldn’t have happened if Hughes had been driving at the speed limit and
hadn’t been intoxicated. Though defense counsel objected to this testimony in a timely
fashion, the trial court allowed the prosecution to proceed with the questioning, and the
defense had to cross-examine the expert without an opportunity to prepare adequately.
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The trial court denied Hughes’s motion for a mistrial and attempted to remedy the
discovery violation by instructing the jury that the prosecution hadn’t disclosed the new
evidence in a timely fashion and allowing the defense to recall the expert. In the end, the
expert’s new testimony on causation was uncontradicted, the jury convicted Hughes of
three counts of murder, and the trial court sentenced him to three consecutive 15-year-to-
life terms.
We conclude the trial court abused its discretion in failing to grant Hughes a
mistrial. The trial court had the opportunity to salvage the trial by continuing it and
allowing the defense to locate, prepare, and seek the assistance of an expert to rebut the
surprise expert causation testimony when the defense first objected. By failing to do so
and allowing the prosecution to proceed in its questioning of the expert, the trial court
contributed to a situation with no adequate remedy but a mistrial. We therefore reverse
Hughes’s convictions.
I
FACTS
A. The Fatal Accident
Around 6:50 p.m. on January 18, 2013, Michael Hughes left work in his Mercury
Sable and drove south on Riverside Avenue. About the same time, a woman and two
young girls—12 and 13 years old—drove a PT Cruiser in the opposite direction. Just
before 7:00 p.m., the two vehicles converged near the intersection of Riverside and
Placentia Avenue.
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The woman began a left turn across the southbound lanes of Riverside Avenue but
didn’t leave enough time to cross. Hughes braked and tried to avoid the PT Cruiser but
hit its right rear side. The PT Cruiser spun in a clockwise rotation, clipped Hughes’s car,
before tipping onto the driver’s side, and stopping on the west side of the street, about 60
to 70 feet from the impact. Hughes’s car crossed the northbound lanes, jumped the curb,
and came to rest about 130 feet from the impact.
Bystanders tried to help by calling emergency services, flipping the PT Cruiser
right-side up, and checking on the victims. Hughes survived, but all three passengers of
the PT Cruiser died, two at the scene and a third later at the hospital. An autopsy revealed
no drugs or alcohol in the system of the driver of the PT Cruiser.
B. Hughes’s Intoxication
Police responded to the fatal crash and found Hughes at the scene. They noticed
the smell of alcohol on his person, so a Colton police officer performed standard field
sobriety tests, although it was more than an hour after the collision.
The officer who administered the tests said Hughes exhibited signs of intoxication,
including a slight swaying, difficulty balancing without the use of his arms, trouble
counting upwards while balancing, trouble with muscle coordination and following
directions, and difficulty walking a straight line without looking at his feet. The officer
concluded Hughes was under the influence of alcohol and was impaired to the point it
was unsafe for him to operate a vehicle. Based on these signs of impairment, the officer
arrested Hughes.
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At approximately 9:03 p.m., more than two hours after the accident, a law
enforcement medical services nurse drew blood from Hughes. A gas chromatograph
analysis later showed Hughes’s blood alcohol level two hours after the accident to be
0.13 percent, above the legal limit of 0.08 percent. The defense called a toxicologist to
testify about blood testing methods and the nature of alcohol absorption. He explained
alcohol levels would be expected to change in the two hours between the accident and the
time the nurse took blood from Hughes. Given the time between the accident and the
blood draw, he said Hughes’s blood-alcohol level was probably rising throughout that
period and could have been below the legal limit at the time of the crash.
Hughes worked as a security guard at Razor USA, the scooter manufacturer,
located at 3996 South Riverside Avenue, about a quarter mile from the site of the
accident. A manager at Razor said Hughes had worked for them for six or seven years,
and he’d never had a problem with Hughes involving alcohol. He said he spoke to
Hughes between 5:30 and 6:00 p.m. the night of the accident. “At the end of the day
when I was prepared to leave the facility for that day . . . [h]e was performing his rounds,
so I drove around the building and we spoke for 20 minutes or so.” He said he was very
close to Hughes and smelled no alcohol.
The day after the accident, Razor undertook an investigation. The manager said
they searched the guardhouse where Hughes worked and found no alcohol. Razor
maintains a camera in the guardhouse—“staring at the back of [the guard’s] head”—
where Hughes was required to spend most of his day. The manager reviewed surveillance
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footage from the day of the accident and reported he didn’t see Hughes drinking at any
point and saw Hughes leave work about 6:50 p.m. On cross-examination, the manager
acknowledged there were periods of the day during which Hughes was not visible on the
surveillance recordings. A week after the crash, a search of Hughes’s car produced two
open and empty beer cans.
Hughes had previously been convicted for driving under the influence and as a
part of that proceeding, he was expressly advised that if he drove drunk again and killed
someone, he could face murder charges. At the scene of the accident, Hughes provided
police with a state ID card, not a driver’s license.
C. The Charges and Preliminary Hearing
On October 8, 2013, the San Bernardino District Attorney charged Hughes by
felony complaint with three counts of second-degree murder (Pen. Code, § 187, subd. (a),
1
unlabeled statutory citations refer to this code). The trial court held a preliminary hearing
on April 23, 2014 to determine whether the district attorney could proceed with the
charges.
Two police officers with the Colton Police Department testified about the scene of
the accident. As they would at trial, they said they found two cars, a Mercury Sable and a
1 The district attorney also charged Hughes with three counts of gross vehicular
manslaughter while intoxicated (§ 191.5, subd. (a)), committing a D.U.I. and causing
injury (Veh. Code, § 23153, subd. (a)), and driving while his blood alcohol level was at
or above 0.08 percent and causing injury (Veh. Code, § 23153, subd. (b)).) They also
alleged enhancements of the D.U.I. counts for personally inflicting great bodily injury
(§ 12022.7, subd. (a)) and proximately causing bodily injury or death (Veh. Code,
§ 23558). The jury failed to reach a unanimous verdict on these counts and the trial court
declared a mistrial as to them. They play no part in this appeal.
6
PT Cruiser, that had been in a collision. Each had extensive damage. One officer
described finding the driver of the PT Cruiser deceased in the driver’s seat and a second
passenger, a child, in a flowerbed outside the vehicle. She too was deceased. The officer
said a third passenger in the PT Cruiser had been taken to the hospital where she later
died.
The officers interviewed Hughes at the scene. Hughes said he was traveling
southbound on Riverside Avenue when a vehicle turned in front of him and he collided
with it. Hughes said he applied the brakes and tried to avoid the collision, but he hit the
car anyway. As they would testify at trial, both officers said Hughes smelled of alcohol,
though he denied to both that he had been drinking. The second officer, who had arrived
on the scene around 7:55 p.m., performed field sobriety tests and called a nurse to draw
blood for testing. The officer described the field sobriety tests he conducted, as well as
his conclusion Hughes was under the influence of alcohol.
California Highway Patrol Officer Donald Finn testified about the accident
investigation he conducted and the report he wrote as a member of the Multidisciplinary
Accident Investigation Team (MAIT team), which he described as “a small unit that
investigates, typically, high-profile or more complex investigations, and assists allied
agencies, other police departments with their investigations.” On this occasion, the
Colton Police Department requested the help of the MAIT team in performing a speed
reconstruction investigation.
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Officer Finn recounted the MAIT team’s process. “I normally begin by drawing a
to-scale diagram through AutoCAD program, documenting all the physical evidence that
is measured and photographed at the scene, so it’s to scale, placing the Mercury and the
PT Cruiser involved in this collision to scale on the diagram. Placing them at their points
of impact as a reference. [¶] And, then, through an analysis of the physical evidence at
the scene and the paths of travel of both the vehicles, based on the energy involved, doing
energy basis reconstruction.”
In this case, according to Officer Finn, “As the PT Cruiser was making a left-hand
turn, Mr. Hughes was driving southbound in the No. 2 lane. He was able to see the
vehicle making a left, the PT Cruiser make a left-hand turn in front of him. He was able
to perceive that, react to that, apply the brakes.” Finn said, “For lack of a better word, he
dynamites the brakes as hard as he can. He slides into the right rear of the PT Cruiser.”
The PT Cruiser spun clockwise from the impact and the right front of the car hit the right
rear of the Sable. After the two collisions, “The Mercury Sable veered off to the left,
stopped, leaving the tire friction mark, physical evidence item No. 1, began a
counterclockwise rotation and turning movement to the southeast, struck a – crossed the
northbound 1 lane, crossed the northbound No. 2 lane, struck a curb, traversed the curb,
went across the dirt shoulder and got caught and stopped by . . . a chain-link fence.”
According to Finn, the braking, skidding, collisions, spinning and other impact along the
path all reduced the speed of Hughes’s car. He also testified that he looked at data from
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the event data recorder on the Sable, which showed the vehicle slowed by 26 miles per
hour in the 78 milliseconds after the airbags deployed.
The MAIT team applied a sophisticated set of mathematical formulas to this
evidence to conclude Hughes was traveling at about 63 miles per hour when he applied
the brakes. Their analysis proceeded by breaking the path of the vehicle into segments
and moving backward from the Sable’s point of rest to the moment just before impact. As
Officer Finn described it, “We added all the energy from the separate segments, adding
them one to another, until we reached the impact phase, which our energy equivalent to
the impact phase gave us the velocity.”
The prosecutor then questioned Officer Finn about the method the MAIT team
employs in conducting a speed analysis. The prosecutor’s questions emphasized the
scientific and exacting nature of the analysis.
Q And there are set mathematical formulas for all of this, correct?
A Yes, sir.
Q You just don’t pull these numbers and equations out of thin air just
‘cause you think they look nice?
A No, sir.
Q These are actual equations that science, physics has come up with?
A Yes, sir.
Q And you utilized these equations and you were able to determine
what the impact speed of the Mercury Sable was, utilizing these
mathematical formulas?
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A Yes, sir.
Q And what is that? [¶] . . . [¶]
A 55 miles an hour, sir.
Q And that actually would be the speed at impact after the brakes had
actually been applied by the Sable, correct?
A Yes, sir. [¶] . . . [¶]
Q Okay. Now, from that point backwards to when the skid marks
actually started, are you able to calculate the pre-impact speed of the
Mercury Sable?
A Yes, sir.
Q And how are you able to do that? Is this another mathematical
formula and equation that you use?
A Yes, sir, I utilized kinematic equations. [¶] . . . [¶] Energy-based
equations dealing with the gravity, the friction valuation, distances,
the friction value assigned to the mark on the roadway, and then the
distance.
Q And these kinematic equations that you utilize, these are also not
equations that just sprang out of your head just for the sake of it, are
they?
A No, sir, they are not.
Q These are equations that actually stem from Sir Isaac Newton and
have been around for 5 or 600 years, correct?
A Yes, sir.
Q Now, utilizing the evidence that you had, as well as all of these
variables, and you plug them into your situation, what was the pre-
impact speed of the Mercury Sable at the time that the brakes were
first applied?
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A 63 miles an hour, sir.
Officer Finn then testified Hughes’s speed exceeded the speed limit by eight miles an
hour, a violation of the Vehicle Code.
The prosecutor also asked Officer Finn to describe the extensive training he
received to enable him to conduct the speed analysis.
Q And while you’re not a physics major, as has been pointed out in
cross-examination, I assume you’re trained in the computation[s]
that you use?
A Yes, sir.
Q What kind of training?
A The first class, Intermediate Accident Investigation, is a 40-hour
class. [¶] Then, Advanced Accident Investigation is an 80-hour
class. [¶] Then math and physics is a class that’s 40 hours. [¶] The
Traffic Accident Reconstruction 1 is an 80-hour class. [¶] Traffic
Accident Reconstruction 2 is an 80-hour class.
In all, Officer Finn received eight weeks of training.
At the end of the hearing, the trial court determined there was evidence to support
the charges, and ordered Hughes held over to answer for all the offenses charged. On
April 25, 2014, the district attorney filed an information with the same charges and
enhancements alleged in the complaint.
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D. Trial Opening Statements
Trial began on June 8, 2017. The same prosecutor who had represented the People
at the preliminary hearing also represented the People at trial.
In his opening statement, the prosecutor conceded the jury would hear testimony
that the driver of the PT Cruiser was at fault for the accident because she turned left in
front of Hughes without leaving adequate space. However, the prosecution’s theory of the
case was Hughes was also responsible because his driving speed and intoxication were
also causes of the accident.
In the opening statement, the prosecutor told the jury they could infer causation
from the evidence of Hughes’s intoxication and evidence of how intoxication affects your
ability to react to dangers. “[W]hat happened . . . is that being under the influence, you’re
gonna hear testimony that affects your judgment. It impairs your muscle reflexes. It
impairs your perception. And that the defendant’s perception and judgment was in fact
compromised as a result of being under the influence at .13. [¶] At this point in time the
defendant applied his brakes. We know this because there is that one skid mark left from
the left front tire that went approximately 65 feet heading into the collision. [¶] You’re
gonna hear testimony that that should have been done earlier. Based on the line of sight,
based on the unobstructed view, the expert testimony is gonna say that his impairment
did not allow for the proper reaction time.”
The prosecution’s theory of implied malice was that Hughes was subjectively
aware of the dangers of drunk driving because he had suffered a prior DUI conviction
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and was warned that if he drove drunk again and killed someone, he could be charged
with murder. The prosecutor said Hughes acted with conscious disregard of that risk by
drinking to a point of intoxication, getting behind the wheel of a car, and speeding.
The defense theory of the case, as presented in their opening statement, was
Hughes was not traveling at an unsafe speed, his perception and reaction time was not
significantly affected, and neither Hughes’s speed nor his intoxication were substantial
causal factors in the accident. They pointed out the investigating police and the accident
reconstruction team both reached those conclusions. “And what did they say? What did
they conclude? They concluded Mr. Hughes was not traveling at an unsafe speed. Mr.
Hughes tried to avoid impact. Mr. Hughes reacted in excess of a hundred feet and there
were the preimpact skid marks . . . They concluded that his reaction time, his perception
time was not significantly impaired. [¶] And then they concluded that alcohol was not a
factor.”
The defense also pointed out the evidence shows Hughes consumed alcohol only
minutes before the accident and that police didn’t test his impairment until long after the
accident, making it likely he was not impaired when the accident occurred, and certainly
not to the degree he was impaired when the police drew his blood two hours later.
E. Trial Evidence
1. Investigation by the Colton Police Department
The Colton Police Department investigated Hughes’s accident and produced a
traffic collision report, which included a diagram and photographs identifying the
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location of all pieces of evidence investigators believed were related to the collision. The
report concluded the driver of the PT Cruiser caused the accident by failing to yield the
right of way to oncoming traffic and listed her error as the “primary collision factor.”
The report identified Hughes’s driving under the influence as an “associated
factor.” The officer who prepared the report explained the “[p]rimary factor is the reason
that that collision occurred. An associative [sic] factor is something that may have
contributed to the actual collision.” He said “alcohol may have been a factor, but that
can’t be determined conclusively.” However, the officer said the later reconstructions,
speed calculations, and blood toxicology results led him to believe intoxication did play a
part in causing the collision. The Colton Police Department also concluded there were no
signs of reaction time or perception being significantly impaired.
2. The MAIT investigation and report
On January 24, 2013, the officer who prepared the report had an hour-long
meeting with the California Highway Patrol’s MAIT team, which was led by Sergeant
Lance Berns. At the meeting, the Colton Police Department provided their report and
diagram for the purpose of assisting the team with the accident reconstruction portion of
the investigation. During this meeting, Berns commented that he believed Hughes wasn’t
traveling at an unsafe speed and alcohol wasn’t a factor in the accident. Following the
meeting, the MAIT team launched an investigation into the collision.
A MAIT team mechanic inspected both vehicles to determine whether the
condition of either car contributed to the crash. The mechanic discovered Hughes’s rear
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antilock brake system wasn’t operating because its sensors were blocked. However,
because an antilock system is not required for a vehicle’s brakes to function in a safe and
lawful manner, the team concluded the deficiency didn’t contribute to the collision and
that no mechanical deficiencies or failures in the critical control system of either vehicle
contributed to the collision.
The MAIT team also undertook an independent accident reconstruction analysis.
Officer Finn, who wrote the MAIT report, testified about the analysis at trial, as he did at
the preliminary hearing. He said team members reviewed the evidence and materials
provided by the Colton Police Department and visited the accident site. They concluded
the diagram in the police report had mistakenly attributed two friction marks in the road
and marks on the curb to the vehicles involved in this collision and omitted friction marks
that should have been attributed to Hughes’s car. Based on their inspection, the MAIT
team prepared their own accident diagram. Like the police report, the MAIT team
concluded the crash occurred when Hughes struck the rear passenger side portion of the
victim’s PT Cruiser as it was making a left turn. The MAIT team also concluded Hughes
applied his brakes 49 feet before impact but was still traveling at approximately 55 miles
per hour when he struck the PT Cruiser.
The MAIT team also performed calculations to determine the speeds of both
vehicles before they applied their brakes and before they collided. They broke the speed
calculation for Hughes’s vehicle into five separate segments, worked back in time from
the point of rest, and determined what speed would account for the path of the car at each
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point. The event data recorder in Hughes’s car showed a rapid deceleration of 26 miles
per hour in 78 milliseconds on impact. The recorder is triggered when an airbag deploys
and records the vehicle’s change in velocity over a short period of time. The MAIT team
relied on this data in determining the car’s speed at impact. However, the MAIT report
noted Hughes’s recording device is an older model that records a shorter period than
newer units that record data for up to 150 milliseconds.
Based on these calculations, the MAIT report found Hughes’s vehicle was
traveling at least 63.4 miles per hour just before he applied the brakes. The speed limit is
55 miles per hour on Riverside Avenue near the site of the accident. The report also
concluded the MAIT team’s findings were consistent with the Colton Police
Department’s investigation report finding the victim’s failure to yield the right of way
when making her left turn was the primary cause of the accident.
The MAIT report’s scope did not include evaluating Hughes’s impairment or the
Colton Police Department’s conclusion that Hughes’s alcohol use was an associated
factor. However, Officer Finn testified he believed Hughes was not travelling at an
unsafe speed and his speed was not a contributing factor to the collision. He also said,
based on the point where Hughes began reacting and the evasive measures he took, he did
not believe Hughes’s reaction time or perception had been significantly impaired. Finn’s
testimony tended to undermine the prosecution’s case that Hughes’s speed and
intoxication were substantial factors in causing the accident, required to establish second-
degree murder charges.
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3. Surprise testimony by the MAIT team leader
On the heels of Officer Finn’s testimony, the People called the leader of the MAIT
team, California Highway Patrol Sergeant Lance Berns. His testimony departed
substantially from the MAIT report he had endorsed as the team leader and also differed
from the testimony of Officer Finn on the critical causation issue. According to Berns, he
continued to “look into the case” even after the MAIT report was finished. He said he
continued to do research and go over the equations in the case as early as a few months
before trial and had produced a new traffic accident diagram the day before his
testimony. He also said he produced notes in the process of undertaking this analysis and
coming to the conclusions represented in his diagrams and said the prosecutor was aware
he had notes.
Despite this change in approach, neither Sergeant Berns nor the prosecutor
disclosed the new evidence to the defense until Berns was in the witness chair at trial
under the prosecutor’s direct examination. They didn’t produce the notes showing
Berns’s new calculations or the diagrams Berns created the day before trial to illustrate
his new conclusion. Instead, the prosecutor marked the diagrams for admission and
proceeded to elicit Berns’s new conclusions in front of the jury. The existence of the
notes became apparent only when Berns asked to see them to refresh his recollection
about the new speed calculations he had made. As it happened, his surprise testimony
concerned whether Hughes’s speed and intoxication were substantial factors in causing
the accident that killed the three victims. The prosecutor later reported he had learned of
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the new diagrams only three hours before Berns took the stand and later claimed his
failure to tell defendant and defense counsel of the new documents immediately upon
becoming aware of the new evidence was an oversight on his part due to his being
focused on the trial and questioning Officer Finn in particular, a major witness.
We now turn to the content of Sergeant Berns’s new testimony. On Hughes’s
speed, Berns said he had concluded Hughes was traveling at a higher speed than the
MAIT report concluded. He emphasized the MAIT report was designed to determine
only a vehicle’s minimum speed. But he also provided new reasons for thinking the
report had underreported that speed. First, he pointed out the older event data recorder in
Hughes’s car recorded data for only 78 milliseconds, whereas newer recorders capture
data for a longer period. Berns said the older recorder underreported the decrease in
Hughes’s speed caused by the collision “probably between 3 and 4 miles per hour.” He
said he came to that figure by using the trajectory of the speed loss graph provided by the
event data recorder and by consulting with someone who teaches analysis and downloads
for event data recorders. Based on that analysis, he concluded Hughes’s speed just before
he applied the brakes was about 67 miles per hour and the impact speed about 59 miles
per hour.
Sergeant Berns also testified he had concluded Hughes would not have collided
with the victim had he been sober and traveling at the speed limit. This constituted
testimony on a topic no one had previously broached. To illustrate Berns’s new speed
analysis, the prosecutor introduced a diagram Berns had prepared the day before. It
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compared the position of Hughes’s vehicle traveling 67 miles per hour with his position if
he had been traveling the speed limit of 55 miles per hour. Berns described the
illustration as “a time position diagram that I prepared yesterday with regards to vehicle
speed comparison between 67 miles per hour and 55 miles per hour.” The prosecutor then
asked, “Now, the car that’s going 67 miles an hour, did you assume that the defendant, in
drawing this particular diagram, was in fact sober and perceiving as a normal, sober
individual?”
At that point, defense counsel objected “only because this is the first time we’ve
seen this diagram.” The trial court acknowledged the problem and halted proceedings
briefly. When the jury had left the courtroom, the prosecutor produced a second diagram
he’d not previously disclosed to defense counsel. The trial court directed defense counsel
to “take a couple minutes” to review the diagrams and ask questions of Sergeant Berns
about them off the record. Defense counsel objected that the production of documents
was untimely. “The witness has said that he’s been reviewing this case for months. And if
he just provided a diagram today and [they] expect that to get admitted, I think [that is] an
untimely piece of evidence.”
The prosecutor responded, “I’m allowed to come up with diagrams any point in
time.” The trial court agreed, “Here’s the problem: He could draw it now for us. He could
draw the same thing and use a piece of paper and draw the same thing. That’s why I’m
giving you the opportunity to talk to him about it at this point in time.” Defense counsel
then asked for a copy of Berns’s notes to review. The trial court agreed they could get a
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copy during a later break.
The trial court then recalled the jury and the prosecutor resumed questioning
Sergeant Berns. He again displayed the new diagram and asked Berns to tell the jury
what it depicts. Berns said it’s “a comparison between the Mercury traveling 67 miles per
hour versus 55 miles an hour with the beginning of a perception response location.” He
said, “this first vehicle here is the beginning of perception response time based on the
location of the beginning of [the] tire friction mark. And what I did is I multiply 67 miles
per hour times the conversion factor of 1.467 to convert into feet per second. And then I
multiply that by 1.5 seconds, which is the standard response time, and it places the
vehicle here. [¶] The second vehicle here is—had [Hughes] . . . been traveling 55 miles
per hour with P and R being the same—‘cause that’s where he recognized the hazard—he
would have began braking here versus here. Now you can see that the braking distance at
55 would have been a little over 75 feet versus 67, which was just under 49 feet. [¶] Well,
all that takes time. So here—at 67 miles per hour he would have been braking for 1.1
second. Now you subtract that from the .53 seconds; you get a difference of .057
seconds.” Berns then said his new calculations showed Hughes’s speed was a cause of the
crash because he would not have collided with the PT Cruiser had he been sober and
traveling the speed limit. Sergeant Berns also concluded the accident wouldn’t have been
as serious if Hughes had been sober and driving at 63.4 miles per hour as the MAIT
report concluded. He depicted those calculations in the second new diagram.
Though Sergeant Berns conceded he didn’t evaluate Hughes, he said Hughes’s
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reduced perception and reaction times due to intoxication were a contributing cause of the
collision, whether he was traveling at 67 miles per hour or 63.4 miles per hour. He based
this conclusion, in part, on National Highway Traffic Safety Administration studies
showing an average person’s reaction time is 1.5 seconds and a person who is intoxicated
with a blood alcohol above 0.08 percent experiences a 15-25 percent increase in response
time. Relying on these premises, Berns concluded the delay in reaction time caused by
Hughes’s intoxication was a determinative factor in the collision.
Defense counsel cross-examined Sergeant Berns without a break after his direct
testimony. The defense pressed Berns on the seeming impropriety of changing his
opinion or offering new opinions and disagreeing with his MAIT team colleagues. Berns
acknowledged he signed off on the original report and didn’t solicit input on his new
analysis from any of those team members. They questioned Berns as to why he didn’t
provide the information and diagrams to defense counsel sooner. He responded that he
hadn’t created the diagrams until the day before his testimony, but acknowledged he had
been working on the notes for a week before trial and that the prosecutor knew he had
notes. However, the defense made no effort to challenge the speed analysis underlying
Berns’s new opinion that Hughes’s speed and intoxication caused the collision.
4. Motion for a mistrial
The next day of trial, the prosecution presented two more witnesses, and then
defense counsel moved for a mistrial.
They argued Sergeant Berns “provided information to the People in the morning
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before the lunch break . . . . The People did not provide that information to the defense
until the time that the witness testified after the lunch break. Defense believes that that
would constitute untimely discovery. [¶] The issue is that the witness did change his
opinions and/or conclusions regarding speed from what is written into the report to what I
believe he said was a margin of error that he believed is more likely that the speed was
about 5 miles an hour higher. And that was the first time defense counsel had heard that
information. [¶] Had we known, the defense would have liked to have prepared and
conduct[ed] additional discovery to verify a few things. Based on the untimeliness of that
information, we would ask for a mistrial.”
Defense counsel also pointed out, “In addition to Mr. Berns testifying to a
different speed, he also changed his conclusions as to whether or not the defendant was
an associated cause. So his original conclusions very clearly articulated that defendant
was not a contributing factor—contributing cause in this accident; that speed was not a
factor; alcohol was not a factor and that he had actually had good reaction time—the
defendant. So Mr. Berns also changed his conclusions from that January 24th, 2013
conclusions on the stand prior to his testimony.”
The trial court acknowledged the problem. “[T]he way the Court views it is
Sergeant Berns did provide information that was substantially different than what was in
the MAIT report or what counsel could have expected Sergeant Berns to testify about
based on all of the discovery previously exchanged and forthcoming in the case. And
Sergeant Berns’s testimony about alcohol and speed being associated, related, whatever
22
words you wanna use, it does go to the crux of the issue in the case, and that’s whether
Mr. Hughes’s driving under the influence was a cause of the collision, or the traffic
accident. [¶] So I understand that that information is substantially different and counsel
could have relied on the discovery previously provided.”
The trial court did not, however, focus on whether the prosecution should have
turned over Sergeant Berns’s notes, which would have alerted defendant to the substance
of the new testimony and allowed time for defense counsel to prepare to address it. Nor
did the trial court consider the effect on the defense case of allowing that testimony in
unchallenged, rather than taking a break in the trial to allow defense counsel to prepare,
seek additional discovery, and enlist additional expert assistance with the new speed and
collision analysis. Instead, the trial court focused on whether the prosecutor had engaged
in gamesmanship by withholding Berns’s two diagrams for three hours and springing
them on the defense with Berns on the stand. “[T]he issue is whether or not the
prosecution had that information prior to Sergeant Berns taking the stand or not. [¶] I
have [the prosecutor’s] statement as an officer of the court that he didn’t have that
information until the morning of the testimony. I also have Sergeant Berns’s sworn
testimony under oath that he didn’t provide that information and didn’t come to those
conclusions nor prepare the diagram until the day before. [¶] So is there any evidence that
the defense can point to that would give the Court reason to believe that the information
provided by Sergeant Berns and [the prosecutor] was incorrect? Is there any evidence that
23
you have that the information was actually provided at a time before indicated by those
two folks?”
The prosecutor then focused the issue more directly on disclosure of the diagrams
and the question of prosecutorial misconduct, rather than late discovery. “The fact is if
the Court believes that the delay of a couple three hours in me turning over the
information was in fact late discovery, the fact is I did get it late. I got it that morning.”
He then excused his failure to disclose the diagram on the fact that he was in the middle
of trial and in the middle of a major witness, Officer Finn.
Defense counsel argued the failure to disclose the information “can be construed
as prosecutorial misconduct and grounds for dismissal.” Defense counsel asked for a
hearing on the issue.
The next day, June 27, 2017, the court held a hearing related to the mistrial motion
and the issue of late discovery and prosecutorial misconduct. The prosecutor was
represented by counsel. The court summarized the issues for the prosecutor’s counsel and
said the issue concerned the failure to disclose both the diagrams and the notes, which
would have alerted defense counsel to the substance of Sergeant Berns’s new testimony.
The court said the focus would be on the “new opinions and conclusions that were
reached that are contrary to any other opinions and conclusions that were previously
reached by anybody in this case that then are also now helpful to the prosecution on the
issue of causation and were not disclosed to the defense prior to the witness taking the
stand.”
24
The prosecutor’s counsel then questioned the relevance of the notes because
“there’s no indication that he knew of any of those notes prior to Sergeant Berns
describing them while he was on the stand.” The court agreed with that characterization,
and much of the rest of the discussion assumed the problem was the prosecutor’s failure
to disclose the diagrams in the few hours between the prosecutor becoming aware of
them and Berns’s testimony. As we’ve noted above, Berns’s testimony was to the
contrary, that he had been working on the issue for a few months and that the prosecutor
knew he had notes reflecting his new calculations.
In the end, the court found the prosecutor did not commit prosecutorial
misconduct but did commit a discovery violation by failing to provide the diagrams and
Sergeant Berns’s conclusions to defense counsel before Berns took the stand.
However, the court declined to order a mistrial on the ground that other remedies
would be sufficient to address the problem. “A mistrial and a dismissal is the most severe
penalty that the Court can impose. And I can only do that if I’m satisfied that other
sanctions or remedies short of that would be effective or would not be effective. And in
this case I think there are other remedies short of imposing a mistrial and dismissal that
would be effective.” The court said it would give a jury instruction on late discovery and
noted Sergeant Berns was subject to recall. “If you need more time to consult with your
expert before you call Sergeant Berns back or there’s other additional things that you
need to do in preparation for that . . . you let me know what else we might need to do. I
will make sure that we get that done. But at this point the Court, based on everything that
25
it’s heard and seen and experienced, thinks that it was sort of prosecutorial error, not
egregious misconduct. And it’s a discovery violation, but the remedy is something short
of mistrial and dismissal.”
The defense then proceeded with its case.
5. The Defense accident reconstruction expert
The day after the ruling on the motion for mistrial, the defense called Dale
Stephens, a former MAIT team member, to testify in Hughes’s defense as an accident
reconstruction expert.
Stephens said he believed, based on his review of the Colton Police Department
report and MAIT report, that the driver of the PT Cruiser, not Hughes, was at fault for the
collision. He also testified Hughes’s speed was not unsafe, and his impairment did not
contribute to the crash. “[T]he PT Cruiser is looking ahead and the headlights [of
Hughes’s car] are 190 feet away based upon the CHP skid analysis or calculations. That
vehicle is – it’s – I’m trying to figure out the yardage. It’s a little over 60 yards. So a
vehicle that’s 60 yards away in a 55-mile-an-hour zone that’s approaching you, do you
turn left in front of that vehicle? No. The vehicle is an immediate hazard. You have to
wait.” However, he acknowledged alcohol consumption and blood alcohol levels above
0.08 percent can impair a driver’s ability to track objects, recognize danger, and react to
changing conditions.
Regarding Hughes’s speed before the crash, the defense reconstruction expert
disagreed with the friction value used in step 3 of the MAIT report’s speed calculation.
26
The report used an improperly high friction coefficient to calculate speed, and therefore
overestimated Hughes’s speed by several miles per hour. Stephens said, using the correct
friction coefficient, he calculated Hughes’s minimum speed as 58 miles an hour. He
conceded his opinion reported a minimum speed and Hughes’s actual speed was likely
somewhat higher. Nevertheless, he agreed that Hughes was not a contributing cause to
the accident.
The defense reconstruction expert also reviewed and criticized Sergeant Berns’s
new opinion that Hughes had been traveling approximately 67 miles per hour and that his
speed and intoxication were contributing causes of the accident. First, he said preparing
additional speed calculations in isolation deviated from standard MAIT protocol, which
normally consists of running all conclusions by the team to ensure their accuracy.
“Whoever is writing the report will come up with a conclusion, but his – his or her report
will be forwarded to the other members of the [team], and they’ll go through it and
determine if – if what the officer has done is correct. Of if there are problems, and then
the officer will go back and fix them.” Stephens said that was true of every one of the
approximately 200 MAIT reports he had worked on. In his eight years on the MAIT
team, he never saw an analysis go out without review by the entire MAIT team. The
purpose of putting the analysis through the whole team is to avoid mistakes. “You’d
rather be confronted in MAIT rather than on the stand and during trial with a mistake.”
Second, he said it was unscientific and unsupported to add three to four miles per
hour to Hughes’s speed based on speculation about what additional data from the event
27
data recorder might have shown if it had recorded data over a longer period. “The
sergeant states that this is only 78 milliseconds that the report usually is 100 to 150
milliseconds and therefore it should show more. The fact that he just puts 3 to 4 miles an
hour into this equation, it’s not scientific. It’s not MAIT. It’s – I don’t know what it is.
But MAIT – if you wanted to add miles an hour, if you wanted to figure out if you were
supposed to add miles an hour, you would have to do several calculations. But when you
originally look at the download of the Mercury and you – that’s how you would
determine – if you needed to possibly determine if you would [need] to add miles per
hour. But just to say maybe 3 or 4, maybe, and then do it, that’s not MAIT. It’s not
reconstruction.” According to Stephens, the graph from the recorder showed velocity
leveling off and the accelerometer approaching zero. He concluded Sergeant Berns did
not do calculations to support adding three or four miles an hour to Hughes’s speed, but
pulled the number from thin air.
Defense didn’t ask Stephens to address Sergeant Berns’s new calculations and
conclusions that Hughes’s speed and intoxication were causes of the accident.
F. Jury Instructions and Closing Argument
The trial court instructed the jury using the standard instruction for charges of
murder. “The defendant is charged in Count 1, 2, and 3 with murder in violation of Penal
Code Section 187. [¶] To prove that the defendant is guilty of this crime, the People must
prove that . . . [¶] . . . The defendant committed an act that caused the death of another
person.” (Italics added.) The court instructed, “There may be more than one cause of
28
death. An act causes death only if it is a substantial factor in causing the death, and the
death would not have happened without the act. A substantial factor is more than a trivial
or remote factor. It must actually contribute to the death. However, it does not need to be
the only factor that causes the death.” (Italics added.)
The court also instructed the jury that “The failure of [the victim] or another
person to use reasonable care may have contributed to the death. But if the defendant’s
act was a substantial factor in causing the death, then the defendant is legally responsible
for the death even though [the victim] or another person may have failed to use
reasonable care. [¶] If you have a reasonable doubt whether the defendant’s act caused
the death, you must find him not guilty.”
The prosecutor leaned heavily on Sergeant Berns’s surprise testimony to establish
the causation element, which he characterized as the single most important issue. “Now,
this case actually comes down very simply to one question and one question only: The
expert testimony was that a person driving 55 miles an hour and going – and not being
intoxicated would have missed this collision, and there’s no evidence to the contrary.
Sergeant Berns went over the calculations with you as to how he arrived at that
conclusion . . . . [¶] So here’s the question: Since we know that a sober person driving the
speed limit would have missed this collision, when you have someone who is a .13,
which is 50 percent over the legal limit and they are speeding, is that now a substantial
factor in the collision? If you answer that question, no, it’s not, then bless your hearts –
29
the defendant is not guilty. On the other hand, if you say, yes, it is, then the defendant is
guilty. [¶] And that’s what this entire case comes down to.”
G. The Verdict and Sentence
The jury found Hughes guilty of three counts of second degree murder. The court
later denied Hughes’s motion for a new trial and sentenced him to three consecutive
indeterminate terms of 15 years to life.
Hughes timely filed a notice of appeal.
II
ANALYSIS
Hughes argues the trial court improperly denied his motion for a mistrial on the
basis of the prosecutor’s failure to disclose information and materials related to Sergeant
Berns’s expert opinion that Hughes’s intoxication and speed were substantial factors in
causing the fatal collision. He argues the trial court’s refusal was error and violated his
due process right to a fair trial.2
Section 1054 et seq. governs discovery in criminal cases and aims at flushing out
the truth early and avoiding the element of surprise (on both sides) in criminal trials.
“‘The purpose of section 1054 et seq. is to promote ascertainment of truth by liberal
discovery rules which allow parties to obtain information in order to prepare their cases
and reduce the chance of surprise at trial. [Citation.] Reciprocal discovery is intended to
2Hughes also asks that we vacate the trial court’s order denying a new trial and
remand for a new hearing in the trial court. We need not address that issue because we
conclude the trial court should have granted a mistrial.
30
protect the public interest in a full and truthful disclosure of critical facts, to promote the
People’s interest in preventing a last minute defense, and to reduce the risk of judgments
based on incomplete testimony.’” (Thompson v. Superior Court (1997) 53 Cal. App. 4th
480, 487 (Thompson).)
To further these ends, prosecutors are required to disclose to the defendant a long
list of “materials and information, if it is in the possession of the prosecuting attorney or
if the prosecuting attorney knows it to be in the possession of the investigating agencies,”
a list which includes “[r]elevant written or recorded statements of witnesses or reports of
the statements of witnesses whom the prosecutor intends to call at the trial, including any
reports or statements of experts made in conjunction with the case, including the results
of physical or mental examinations, scientific tests, experiments, or comparisons which
the prosecutor intends to offer in evidence at the trial.” (§ 1054.1, subd. (f), italics added.)
This requirement is broad enough to encompass Sergeant Berns’s notes, which
contained the calculations that served as the basis for his new testimony and diagrams on
the critical causation issue at trial.3 In Thompson, the Second District, Division 1
3 The People argue Hughes forfeited the issue of the prosecution’s failing to
disclose notes and the contents of the new expert opinions by framing the issue as being
about the disclosure of diagrams produced to the prosecution three hours before the
expert testified. We disagree with that characterization. The trial court evidently
understood Hughes as objecting to the failure to produce both the notes, new opinions,
and diagrams. In ruling, the court said its focus would be on the “new opinions and
conclusions that were reached that are contrary to any other opinions and conclusions that
were previously reached by anybody in this case that then are also now helpful to the
prosecution on the issue of causation and were not disclosed to the defense prior to the
witness taking the stand.” We conclude Hughes raised and the trial court ruled on all
bases for objecting to the prosecution’s surprise expert testimony. To the extent the
[footnote continued on next page]
31
considered whether the statutory requirement to disclose “written or recorded statements
of witnesses” (Thompson, supra, 53 Cal.App.4th at p. 484, fn. 2) encompasses “raw
written notes of [a] witness interview.” (Id. at p. 485.). The court held the plain language
and the purpose of the statutory discovery scheme required such notes to be turned over,
“regardless of whether they later are used to prepare a report of the statement.” (Id. at
p. 486.) A “witness’s words, whether recorded electronically or by someone writing them
down, are the statement. Whether left in that form, or rearranged, restated, or edited by
someone else, the witness’s words in the raw written notes or unedited tape remain a
statement.” (Ibid.) And while Thompson involved a criminal defendant’s obligation to
produce notes from witness interviews, section 1054.1 imposes the identical obligation
on prosecutors. (§ 1054.1, subd. (f); Thompson, at p. 485 [“raw written notes of witness
interviews, other than attorney work product, are ‘statements’ as defined in section
1054.3, subdivision (a), and 1054.1, subdivision (f), and thus must be disclosed by both
sides”].)
The fact that this case involves an accident reconstruction expert’s technical notes
only heightens the importance of early disclosure. “‘[T]he need for pretrial discovery is
greater with respect to expert witnesses than it is in the case of ordinary fact witnesses. If
a party is going to present the testimony of experts during trial, the other parties must
prepare to cope with the testimony to be given by people with specialized knowledge in a
proceedings below focused on Sergeant Berns’s diagrams, that was attributable to the
prosecution’s efforts to frame the issue. Hughes did not forfeit the merits of his appeal.
32
scientific or technical field.’” (Zellerino v. Brown (1991) 235 Cal. App. 3d 1097, 1117.)
In People v. Lamb (2006) 136 Cal. App. 4th 575, the Third District Court of Appeal
held expressly that the obligation to produce “any reports or statements of experts made
in connection with the case” encompasses an expert’s notes about the causes of an
automobile accident. The defendant sought to avoid production on the ground “that it is
only written reports of an expert that must be disclosed to the prosecution.” (Id. at
p. 580.) The defendant in Lamb argued “that because no . . . report was prepared, and
because there is no requirement that counsel obtain a written statement from a witness
[citation], there was no discovery violation. He also assert[ed] that [the expert’s] notes
reflected only interim conclusions, not final opinions, and therefore were not
discoverable.” (Ibid.) The court rejected this interpretation. They noted the expert “made
notes about the interviews with witnesses, had made calculations to determine the cause
of the accident, had made notes about his inspections of the vehicles, and had conveyed
this information to defense counsel.” (Ibid.) Disclosure of such information is required
under the statutory scheme, and the gamesmanship involved in withholding it exemplifies
a serious discovery violation. (Ibid.)
Interpreting the statutes differently would allow the outcome of criminal trials to
be decided by which side was better at gaming the system, a repugnant result. Either the
prosecution or the defendant could consult an expert but avoid disclosing the substance of
their testimony by simply declining to request a formal written report. That solution is
inconsistent with both the statutory language and its purpose. For that reason, courts
33
routinely require disclosure of even oral statements made to counsel. (Roland v. Superior
Court (2004) 124 Cal. App. 4th 154, 167 [“excluding [oral] statements [to counsel] from
the disclosure requirement of section 1054.3—and concomitantly section 1054.1—would
undermine the voters’ intent because it would permit defense attorneys and prosecutors to
avoid disclosing relevant information by simply conducting their own interviews of
critical witnesses, instead of using investigators to perform this task, and by not writing
down or recording any of those witnesses’ statements”].) We therefore conclude section
1054.1, subdivision (f) required the prosecution to disclose to the defense the substance
of Sergeant Berns’s testimony, including his notes, as soon as they were aware of them.
The failure to disclose this information until Berns was on the witness stand in front of
the jury was an error of great magnitude.
And while the People attempt to minimize the error by focusing on the
approximately three-hour delay in informing defense counsel about Sergeant Berns’s new
diagrams, the error was more serious. First, Berns himself testified he had been working
on the case for a few months, testified he took notes (as he would have to do performing
the kind of analysis at issue), and—critically—that the prosecutor knew he had notes.4
4 The trial court accepted the attorney’s representation that the prosecutor did not
know Berns had notes reflecting his new opinions. If that acceptance constituted a finding
of the trial court, it was not based on substantial evidence. The only evidence on the issue
is Berns’s uncontradicted testimony that the prosecutor knew of his notes. Though the
trial court held a hearing on prosecutorial misconduct, the prosecutor did not testify. In
our view, it’s difficult to understand why the prosecutor would have called Berns to
testify after calling Officer Finn if he didn’t know about Berns’s new opinions. We don’t
reach the issue of prosecutorial misconduct, however, because Hughes has not appealed
that aspect of the trial court’s ruling.
34
Add to that the fact that Berns provided the prosecutor with diagrams illustrating his new
opinion that Hughes’s speed and intoxication were but-for causes of the accident, and it is
clear that the prosecutor knew precisely what Berns would say on the witness stand about
an issue he would characterize to the jury as the most important issue presented in the
case. In his own words: “Now, this case actually comes down very simply to one question
and one question only: The expert testimony was that a person driving 55 miles an hour
and going – and not being intoxicated would have missed this collision, and there’s no
evidence to the contrary. Sergeant Berns went over the calculations with you as to how he
arrived at that conclusion.” It is difficult to overstate the seriousness of holding back
required discovery information that goes to the very heart of the prosecution’s own
theory of guilt.
The prosecutor put the trial court in a difficult position. When the court became
aware of this issue, it could have acted to fix the problem and save the trial. But it didn’t.
Defense counsel raised the issue after Berns had testified that he believed the MAIT team
underreported Hughes’s speed by about four miles per hour, but immediately before he
testified on causation. The prosecutor introduced one of Berns’s new diagrams comparing
the position of Hughes’s vehicle traveling 67 miles per hour with his position if he had
been traveling the speed limit of 55 miles per hour. The prosecutor asked, “Now, the car
that’s going 67 miles an hour, did you assume that the defendant, in drawing this
particular diagram, was in fact sober and perceiving as a normal, sober individual?”
Defense counsel objected and the trial court excused the jury.
35
At that point, the trial court had some options. When a party fails to comply with
the statutory disclosure requirements, the trial court “may make any order necessary” to
enforce those provisions, including, but not limited to, “[initiating] contempt proceedings,
delaying or prohibiting the testimony of a witness or the presentation of real evidence,
continu[ing] the matter, or any other lawful order.” (§ 1054.5, subd. (b); People v. Ayala
(2000) 23 Cal. 4th 225, 299 (Ayala) [“‘[A] trial court may, in the exercise of its discretion,
“consider a wide range of sanctions” in response to [a] violation of a discovery order’”].)
In this case, given the technical nature of the testimony and the fact that it concerned
what all parties rightly consider the critical factual issue concerning Hughes’s guilt or
innocence on murder charges, the court should have continued the trial immediately and
allowed defense counsel to do what it indicated later it wanted to do—find and consult
with an expert capable of responding to Sergeant Berns’s new testimony and calculations.
That remedy was not an easy one to choose. Doing so would have imposed hardship on
everyone in the case. It would have required a substantial amount of additional work
from defense counsel and the prosecution and would have delayed the trial and
inconvenienced the jury for days or potentially even weeks. And while those concerns are
significant, they are less significant than a defendant’s due process right to a fair trial or
the public’s interest in having issues of guilt and innocence determined based on facts,
not litigation gamesmanship. (See Thompson, supra, 53 Cal.App.4th at p. 487.)
Unfortunately, the trial court instead allowed the trial to continue uninterrupted. At
the critical point, the trial court’s solution was to advise defense counsel to “take a couple
36
minutes” to review the new diagrams and ask questions of Sergeant Berns about them off
the record. Defense counsel rightly objected, pointing out “[t]he witness has said that he’s
been reviewing this case for months. And if he just provided a diagram today and [they]
expect that to get admitted, I think [that is] an untimely piece of evidence.” The objection
was to no avail, and the trial court allowed the jury to return almost immediately to hear
the remainder of Berns’s new testimony.
What happened next was devastating for Hughes’s defense. The jury returned to
the courtroom, Berns returned to the witness stand, and the prosecutor asked Berns to tell
the jury what his diagram shows. Berns said the diagram depicted his speed analysis—his
new calculations—and then explained that Hughes’s speed was a cause of the crash
because he would not have collided with the PT Cruiser had he been sober and traveling
the speed limit. He then said the accident wouldn’t have been as serious if Hughes had
been sober and driving at even 63.4 miles per hour as the MAIT report concluded. In his
closing arguments, this is the testimony the prosecutor would point to as the most critical
in the case.
Defense counsel cross-examined Sergeant Berns without a break after his direct
testimony. They pressed Berns on the seeming impropriety of changing his opinion or
offering new opinions and disagreeing with his MAIT team colleagues and asked him
why he hadn’t provided the information sooner. Not surprisingly, given its technical
nature, they made no effort to challenge the correctness of the speed analysis underlying
his new opinion that Hughes’s speed and intoxication caused the collision.
37
The next day of trial, defense counsel moved for a mistrial. They argued Sergeant
Berns had fundamentally changed the prosecution’s theory of the case and “the defense
would have liked to have prepared and conduct[ed] additional discovery” to enable them
to test his opinions. The trial court rightly acknowledged the problem and that the new
testimony “does go to the crux of the issue in the case, and that’s whether Mr. Hughes’s
driving under the influence was a cause of the collision, or the traffic accident.” In the
end, the court found the prosecutor did not commit prosecutorial misconduct but did
commit a discovery violation by failing to provide the diagrams and Sergeant Berns’s
conclusions to defense counsel before Berns took the stand.
However, the court declined to order a mistrial because it concluded other
remedies would be sufficient to address the problem. “A mistrial and a dismissal is the
most severe penalty that the Court can impose. And I can only do that if I’m satisfied that
other sanctions or remedies short of that would be effective or would not be effective.
And in this case I think there are other remedies short of imposing a mistrial and
dismissal that would be effective.” The court said it would give a jury instruction on late
discovery and noted Sergeant Berns was subject to recall. “If you need more time to
consult with your expert before you call Sergeant Berns back or there’s other additional
things that you need to do in preparation for that, . . . you let me know what else we
might need to do. I will make sure that we get that done. But at this point the Court, based
on everything that it’s heard and seen and experienced, thinks that it was sort of
38
prosecutorial error, not egregious misconduct. And it’s a discovery violation, but the
remedy is something short of mistrial and dismissal.”
Appellate courts generally leave discovery matters to the discretion of the trial
courts. (People v. Lopez (1963) 60 Cal. 2d 223, 246-247.) To set aside a trial court’s
discovery decision, an appellate court must find an abuse of discretion. (People v. Moya
(1986) 184 Cal. App. 3d 1307, 1312.) A reviewing court may not substitute its judgment
for that of the trial judge, and discretion is abused only if the trial court’s ruling exceeds
the bounds of reason, all of the circumstances being considered. (People v. Giminez
(1975) 14 Cal. 3d 68, 72.) This deference extends to a trial court’s denial of a motion for a
mistrial based on the prosecutor’s violation of the discovery statutes. (Ayala, supra, 23
Cal.4th at p. 282.) “A mistrial should be granted if the court is apprised of prejudice that
it judges incurable by admonition or instruction. [Citation.] Whether a particular incident
is incurably prejudicial is by its nature a speculative matter, and the trial court is vested
with considerable discretion in ruling on mistrial motions.” (People v. Haskett (1982) 30
Cal. 3d 841, 854; see also Ayala, at p. 283 [a mistrial should only be granted when “a
party’s chances of receiving a fair trial have been irreparably damaged”].)
We think this is a rare case in which the trial court abused its discretion by
declining to declare a mistrial. Whether the prosecutor acted intentionally or not, the
effect was the same: the prosecution surprised defense counsel with new technical
evidence on the most critical factual question relating to Hughes’s guilt on three murder
charges. The prosecution relied at the preliminary hearing on evidence of Hughes’s
39
intoxication, his prior conviction, and the jury’s ability to infer that his intoxication
caused the accident to establish probable cause that Hughes committed murder. At trial,
however, the testimony of law enforcement, both first responders and the MAIT team, on
the question whether Hughes’s intoxication was a substantial factor causing the accident,
was decidedly weak.
The officer who prepared the police report on the accident said the victim’s failure
to yield to Hughes was the primary cause of the accident. He said “alcohol may have
been a factor, but that can’t be determined conclusively.” Though he said the later
reconstructions, speed calculations, and blood toxicology results led him to believe
intoxication played a part in causing the collision, the police concluded there were no
signs of reaction time or perception being significantly impaired.
Officer Finn, who wrote the MAIT Report, testified that he didn’t think Hughes’s
intoxication caused the accident. He said the MAIT team’s findings were consistent with
the police investigation report finding the victim’s failure to yield the right of way when
making her left turn was the primary cause of the accident. Finn also testified he believed
Hughes was not travelling at an unsafe speed and his speed was not a contributing factor
to the collision. He also said, based on the point where Hughes began reacting and the
evasive measures he took, he did not believe Hughes’s reaction time or perception had
been significantly impaired.
If the prosecution had rested after this testimony, it is unlikely in the extreme the
jury would have found beyond a reasonable doubt that Hughes’s intoxication was a
40
substantial factor in causing the accident and the victims’ deaths. The prosecutor knew
this. He said as much in closing arguments to the jury. “Now, this case actually comes
down very simply to one question and one question only: The expert testimony was that a
person driving 55 miles an hour and going – and not being intoxicated would have
missed this collision, and there’s no evidence to the contrary.”
We think the trial court abused its discretion by failing to declare a mistrial.
Allowing Sergeant Berns’s testimony on causation without giving the defense an
adequate opportunity to prepare to cross-examine him undermined the fundamental
fairness of the trial. Defense counsel’s attempts to attack his new opinions, without
adequate preparation time and time to consult with their own experts, make the problems
obvious. They did an excellent job questioning Berns on procedural issues. Wasn’t he
departing from his colleagues on the MAIT team? Yes. Wasn’t he failing to follow MAIT
standards by providing his own opinion without consulting with his MAIT team
members? Yes. But without adequate time to explore and analyze Berns’s new
calculations with the assistance of trained experts, they were not able to attack the merits
of his conclusions. As a result, as the prosecutor made sure to point out in closing
arguments, Berns’s testimony that the accident wouldn’t have happened if Hughes had
been driving sober and at the speed limit was uncontradicted.
Though the trial court had discretion to consider lesser remedies, the remedies it
chose were simply inadequate. First, directing the jury that the prosecution didn’t disclose
Berns’s testimony in a timely fashion did nothing to enable Hughes’s defense team to test
41
the merits of his new testimony. Nor did allowing them to recall Berns for further
questioning. What they needed to address the merits was additional information about
Berns’s new opinions and their basis, time to seek out and engage new experts, and the
time to work with new experts to produce a fact-based response to what turned out to be
damning testimony. The trial court could have saved the trial by ordering that admittedly
drastic remedy when defense counsel objected to Berns’s new opinions at trial. However,
when the court instead allowed the prosecutor to present the new evidence, the situation
changed, and the only effective remedy at that point was to declare a mistrial and allow
Hughes to face trial again, prepared to respond to Sergeant Berns’s testimony on the
merits. That is the remedy we order now.
III
DISPOSITION
We reverse the convictions.
CERTIFIED FOR PUBLICATION
SLOUGH
J.
We concur:
RAMIREZ
P. J.
MENETREZ
J.
42