Aaron Browning v. David Hickman , 235 W. Va. 640 ( 2015 )

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2015 Term
FILED
June 10, 2015
No. 13-1116 released at 3:00 p.m.
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
AARON BROWNING,
Plaintiff Below, Petitioner
V.
DAVID HICKMAN,
Defendant Below, Respondent
Appeal from the Circuit Court of Logan County
Honorable Roger L. Perry, Judge
Civil Action No. 12-C-47
AFFIRMED
Submitted: April 21, 2015
Filed: June 10, 2015
John-Mark Atkinson, Esq. Benjamin M. Mishoe, Esq.
Atkinson & Polak, PLLC Shaffer & Shaffer, PLLC
Charleston, West Virginia Madison, West Virginia
Harry M. Hatfield, Esq. Attorney for the Respondent
Hatfield & Hatfield, PLLC
Madison, West Virginia
W. Douglas Witten, Esq.
Avis, Witten & Wandling, L.C.
Logan, West Virginia
Attorneys for the Petitioner
JUSTICE LOUGHRY delivered the Opinion of the Court.
JUSTICE KETCHUM concurs and reserves the right to file a concurring opinion.
JUSTICES DAVIS and BENJAMIN dissent and reserve the right to file dissenting opinions.
SYLLABUS BY THE COURT
1. “‘Whether a motion for a mistrial should be sustained or overruled is a
matter which rests within the trial court’s discretion and the action of the trial court in ruling
on such a motion will not be cause for reversal on appeal unless it clearly appears that such
discretion has been abused.’ Syllabus Point 4, Moore, Kelly & Reddish, Inc. v. Shannondale,
Inc., 152 W.Va. 549, 165 S.E.2d 113 (1968).” Syl. Pt. 9, Bd. of Educ. v. Zando, Martin &
Milstead, Inc., 182 W.Va. 597, 390 S.E.2d 796 (1990).
2. “A trial court has considerable discretion as to matters involving the length
of a recess or temporary adjournment of a trial.” Syl. Pt. 8, State v. Richey, 171 W.Va. 342,
298 S.E.2d 879 (1982).
3. “‘[T]he ruling of a trial court in granting or denying a motion for a new trial
is entitled to great respect and weight, [and] the trial court’s ruling will be reversed on appeal
[only] when it is clear that the trial court has acted under some misapprehension of the law
or the evidence.’ Syl. pt. 4, in part, Sanders v. Georgia-Pacific Corp., 159 W.Va. 621, 225
S.E.2d 218 (1976).” Syl. Pt. 2, Estep v. Mike Ferrell Ford Lincoln-Mercury, Inc., 223 W.Va.
209, 672 S.E.2d 345 (2008).
i
4. “A trial court’s evidentiary rulings, as well as its application of the Rules
of Evidence, are subject to review under an abuse of discretion standard.” Syl. Pt. 4, State
v. Rodoussakis, 204 W.Va. 58, 511 S.E.2d 469 (1998).
5. “The admissibility of testimony by an expert witness is a matter within the
sound discretion of the trial court, and the trial court’s decision will not be reversed unless
it is clearly wrong.” Syl. Pt. 6, Helmick v. Potomac Edison Co., 185 W.Va. 269, 406 S.E.2d
700 (1991).
6. “‘Once a trial judge rules on a motion in limine, that ruling becomes the law
of the case unless modified by a subsequent ruling of the court. A trial court is vested with
the exclusive authority to determine when and to what extent an in limine order is to be
modified.’ Syl. pt. 4, Tennant v. Marion Health Care Foundation, 194 W.Va. 97, 459 S.E.2d
374 (1995).” Syl. Pt. 2, Adams v. Consolidated Rail Corp., 214 W.Va. 711, 591 S.E.2d 269(2003).
7. “It is within a trial court’s discretion to admit an out-of-court statement
under Rule 803(1), the present sense impression exception, of the West Virginia Rules of
Evidence if: (1) The statement was made at the time or shortly after an event; (2) the
statement describes the event; and (3) the event giving rise to the statement was within a
ii
declarant’s personal knowledge.” Syl. Pt. 4, State v. Phillips, 194 W.Va. 569, 461 S.E.2d 75(1995), overruled on other grounds by State v. Sutherland, 231 W.Va. 410, 745 S.E.2d 448(2013).
iii
LOUGHRY, Justice:
Aaron Browning, the plaintiff below and the petitioner herein, appeals from
the September 16, 2013, order of the Circuit Court of Logan County denying his motion for
a new trial following an adverse jury verdict in his civil action for damages arising from an
automobile accident. He asserts that the circuit court made various evidentiary errors at trial.
David Hickman, the defendant below and the respondent herein, contends that there was no
error. After a careful review of the parties’ briefs, the arguments of counsel, the pertinent
authorities, and the appendix record, we affirm.
I. Factual and Procedural Background
Shortly before 6:15 a.m. on October 24, 2011, the parties in this litigation were
involved in an automobile accident at an intersection in Logan, West Virginia. Mr. Hickman
(hereinafter “the defendant”) was traveling straight through the intersection. Mr. Browning
(hereinafter “the plaintiff”), who had been traveling in the opposite direction, was making
a left turn across the defendant’s lane of traffic. The front passenger side of the defendant’s
car struck the rear passenger side of the plaintiff’s pickup truck, causing the plaintiff’s truck
to spin around. Each driver claimed to have had the right-of-way at the time of the collision.
The plaintiff filed suit against the defendant alleging negligence and seeking recovery for his
personal injuries and the loss of his truck.
1
The matter was tried before a jury on March 18 and 19, 2013. The plaintiff
testified he had a green turn arrow light allowing him to make the left turn. He also
contended at trial that the defendant was speeding,1 had failed to maintain a proper lookout,
and had failed to yield the right-of-way to the plaintiff’s car which was already in the
intersection. Although the plaintiff acknowledged that he saw the defendant’s approaching
vehicle, he explained that he nonetheless pulled across the defendant’s lane of traffic because
of the green arrow and because the defendant was far away from the intersection.
Conversely, the defendant testified he had a green light to proceed straight
through the intersection. He explained that when he was about ten feet away from the point
in the intersection where the collision would occur, the plaintiff pulled out in front of him.
The defendant testified that he immediately applied his brakes and swerved his car to the left,
but was unsuccessful in avoiding the accident. He estimated that he was driving forty miles
per hour, which was under the speed limit.
Immediately after the collision, a female who identified herself as “Toni”
called the Logan 911 Emergency Center and reported the accident. The caller told the 911
operator that “it was the red truck, [it] pulled out in front of the vehicle.” It is undisputed that
1
Contested factual issues at trial included whether the defendant was speeding and
whether he was late for work.
2
the “red truck” was driven by the plaintiff, while the defendant drove a sedan referred to as
“the vehicle.” After the audio recording of the 911 call was authenticated by an official from
the 911 Center, and over the plaintiff’s objection, the defendant was permitted to play the
recording for the jury. As discussed in section III-A of this opinion, due to the admission of
the 911 call, the plaintiff moved for a mistrial or, in the alternative, a mid-trial recess so he
could endeavor to locate the 911 caller. The circuit court denied the plaintiff’s motion.
City of Logan Police Officer Jacob Miller was dispatched to the accident. At
trial, he testified about his investigation, the accident scene, and the responsibilities each
driver had upon approaching the intersection. Notably, the officer did not know which driver
had the green light or arrow at the time of the collision.
In the Uniform Crash Investigation Report (hereinafter “accident report”),
Officer Miller concluded that the defendant had failed to yield the right-of-way. However,
during his pre-trial deposition, the officer admitted that he did not know which driver had the
green light and it was just as likely that the plaintiff had failed to yield. Because of this
change, the circuit court granted a motion in limine, preventing the plaintiff from telling the
jury of the officer’s conclusion in the accident report.
3
At the end of the trial, the jury returned a verdict in favor of the defendant,
finding that he was not negligent and had not proximately caused the accident. Thereafter,
the plaintiff filed a motion for a new trial pursuant to Rule 59 of the West Virginia Rules of
Civil Procedure. The circuit court denied this motion by order entered on September 16,
2013.
The plaintiff asserts two assignments of error on appeal. First, he contends the
circuit court erroneously denied his motion for a mistrial or recess upon the admission of the
911 call. Second, he asserts the court erroneously denied his motion for a new trial both
because of the admission of the 911 call and the exclusion of Officer Miller’s opinion on
fault in the accident report.
II. Standard of Review
All of the plaintiff’s contentions on appeal are subject to an abuse of discretion
standard of review. With regard to motions for mistrial, we have held that
“[w]hether a motion for a mistrial should be sustained or
overruled is a matter which rests within the trial court’s
discretion and the action of the trial court in ruling on such a
motion will not be cause for reversal on appeal unless it clearly
appears that such discretion has been abused.” Syllabus Point
4, Moore, Kelly & Reddish, Inc. v. Shannondale, Inc., 152
W.Va. 549, 165 S.E.2d 113 (1968).
4
Syl. Pt. 9, Bd. of Educ. v. Zando, Martin & Milstead, Inc., 182 W.Va. 597, 390 S.E.2d 796(1990). Regarding mid-trial recesses, this Court articulated that “[a] trial court has
considerable discretion as to matters involving the length of a recess or temporary
adjournment of a trial.” Syl. Pt. 8, State v. Richey, 171 W.Va. 342, 298 S.E.2d 879 (1982).
Similarly, when a party appeals an order denying a motion for new trial,
“the ruling of a trial court in granting or denying a motion
for a new trial is entitled to great respect and weight, [and] the
trial court’s ruling will be reversed on appeal [only] when it is
clear that the trial court has acted under some misapprehension
of the law or the evidence.” Syl. pt. 4, in part, Sanders v.
Georgia-Pacific Corp., 159 W.Va. 621, 225 S.E.2d 218 (1976).
Syl. Pt. 2, Estep v. Mike Ferrell Ford Lincoln-Mercury, Inc., 223 W.Va. 209, 672 S.E.2d 345(2008).
The motions for mistrial and new trial both concerned the circuit court’s rulings
on the admissibility of evidence. As we explained in syllabus point four of State v.
Rodoussakis, “[a] trial court’s evidentiary rulings, as well as its application of the Rules of
Evidence, are subject to review under an abuse of discretion standard.” 204 W.Va. 58, 511
S.E.2d 469 (1998). Likewise, “[t]he admissibility of testimony by an expert witness is a
matter within the sound discretion of the trial court, and the trial court’s decision will not be
reversed unless it is clearly wrong.” Syl. Pt. 6, Helmick v. Potomac Edison Co., 185 W.Va.
269, 406 S.E.2d 700 (1991).
5
With this in mind, we proceed to consider the parties’ arguments.
III. Discussion
A. The 911 Call
Additional background information is necessary to understand the arguments
surrounding the 911 call. During the call, the caller only identified herself as “Toni” and
stated that she was “not from around here.” During pre-trial discovery, the Logan 911 Center
provided the parties with a recording of the call and various data summaries, but none of this
information included the caller’s last name, telephone number, or contact information.
Before trial, neither party had located “Toni.”
Both parties filed motions in limine regarding the admissibility of the 911 call.
The defendant argued that the call was relevant and satisfied various exceptions to the rule
against hearsay.2 See W.Va. R. Evid. 401, 801-803. The plaintiff asserted the 911 call was
hearsay and not relevant. See W.Va. R. Evid. 401-403, 801. He noted that the 911 caller had
merely said that the “truck, [it] pulled out in front of the vehicle[,]” without stating who had
the green light or the right-of-way. In his written motion in limine, the plaintiff admitted that
he had “cut in front of the defendant [but] the issue is whether the plaintiff had the ‘green
arrow’ on the traffic control light and was thus entitled to the right of way.” (emphasis
2
The application of the Rules of Evidence is discussed infra.
6
added.) He then restated this assertion, arguing that “the issue is not whether or not plaintiff
Browning pulled in front of defendant Hickman–he did, but rather whether or not plaintiff
Browning, by virtue of the green arrow light, had the lawful right of way.” The plaintiff also
argued that there was no way to determine whether the caller saw the collision as it occurred.
See W.Va. R. Evid. 601-602.
During a pre-trial conference held via telephone on March 11, 2013,3 in
addition to both counsel arguing their respective motions in limine, the defense counsel
advised the court that he had just obtained the number of the cellular telephone used to place
the 911 call.4 The defendant’s counsel indicated that his investigator was attempting to find
the caller, and he requested a witness subpoena for trial in the event the caller was located.
The plaintiff objected to allowing the caller to testify at trial without first having the
opportunity to depose her. The circuit court established a deadline of “Thursday at noon”
to locate the caller and set a deposition; otherwise, the court ruled that the 911 call would be
excluded from evidence at trial. Thereafter, no deposition was scheduled.
3
There was no record made of the March 11, 2013, telephonic pre-trial hearing. The
information about what happened at this hearing has been derived from the discussions on
the record at trial and during the post-trial motions hearing, and from the circuit court’s order
denying the plaintiff’s motion for a new trial.
4
According to the defendant’s lawyer, while he was preparing for trial he spoke with
an official from the 911 Center and learned that the center had recently acquired technology
making such information retrievable.
7
At the beginning of the trial, the circuit court revisited its ruling on the 911 call.
The court began by making a record of its pre-trial ruling to exclude this evidence.
Consistent with the plaintiff’s representations in his motion in limine, the court stated that
the plaintiff’s act of pulling across the intersection in front of the defendant’s car was not a
contested issue. Moreover, the court ruled that the 911 caller’s statement was not relevant
to the contested issue of which driver had the green light, and admission of the call could be
to “some degree” prejudicial.
The parties then presented additional arguments about the admissibility of the
911 call. The plaintiff’s counsel stated that the green light would not be the only issue at
trial. There was discussion that other potential theories of liability could include a failure to
maintain a proper lookout and to yield to a vehicle already in the intersection, and that these
issues would not be dependent upon who had the green light. The defense counsel asserted
that if the plaintiff should offer evidence regarding how close the defendant was to the
intersection or how fast the defendant was traveling at the time of the accident, then the 911
call would be probative on the issue of whether the plaintiff had sufficient time to make a left
turn before the defendant’s vehicle reached the intersection. Although the plaintiff’s counsel
indicated he intended to elicit testimony in these areas, he added that this would not open the
door for the admission of the 911 call. After hearing these additional arguments, the judge
said, “[l]et’s see how things go” at trial.
8
In his case-in-chief, the plaintiff presented evidence regarding the defendant’s
speed and location when each driver first observed the other vehicle. He also elicited
testimony from Officer Miller that if the plaintiff was already in the intersection crossing the
defendant’s lane of traffic, then the defendant should have yielded to the plaintiff to avoid
a hazard. Thereafter, the defendant moved the court to reconsider its in limine ruling and
allow the 911 call into evidence. This motion to reconsider was made after the plaintiff
called his last witness, but before the plaintiff rested.
Upon reconsideration, the circuit court decided to admit the 911 call,
explaining that the plaintiff’s case-in-chief turned out to be broader than what the court had
understood it would be from the representations in the plaintiff’s motion in limine. Instead
of just one theory of liability–that the plaintiff had the right-of-way because he had a green
arrow light–the plaintiff asserted the additional theories that the defendant should have kept
a better lookout, yielded to a car already in the intersection, and refrained from speeding.
The court ruled that these three additional theories of liability revolved around the parties’
respective proximity to the intersection at the time of the accident regardless of who had the
green light, and the 911 call would be minimally probative on the issue of proximity. In
addition, the circuit court ruled that the 911 call satisfied the present sense impression
exception to the prohibition against hearsay. See W.Va. R. Evid. 803(1).
9
Turning to the arguments on appeal, the plaintiff contends the circuit court
erred by changing its ruling mid-trial regarding the admissibility of the 911 call. He also
asserts the 911 call was not admissible under the West Virginia Rules of Evidence. As set
forth herein, our review of this matter finds no abuse of discretion on either assertion.
1. Reconsideration of Pre-Trial Ruling
and Denial of Request for Recess
A circuit court is vested with the authority to modify its own in limine rulings:
“Once a trial judge rules on a motion in limine, that
ruling becomes the law of the case unless modified by a
subsequent ruling of the court. A trial court is vested with the
exclusive authority to determine when and to what extent an in
limine order is to be modified.” Syl. pt. 4, Tennant v. Marion
Health Care Foundation, 194 W.Va. 97, 459 S.E.2d 374 (1995).
Syl. Pt. 2, Adams v. Consolidated Rail Corp., 214 W.Va. 711, 591 S.E.2d 269 (2003).
“[J]udges in ongoing proceedings normally have some latitude to revise their own earlier
rulings.” Tennant, 194 W.Va. at 113, 459 S.E.2d at 390. Moreover, as the United States
Supreme Court has recognized, a pre-trial “ruling is subject to change when the case unfolds,
particularly if the actual testimony differs from what was contained in [a party’s] proffer.
Indeed even if nothing unexpected happens at trial, the district judge is free, in the exercise
of sound judicial discretion, to alter a previous in limine ruling.” Luce v. United States, 469
U.S. 38, 41-42 (1984).
10
In the case sub judice, the circuit court explained that the evidence and theories
presented by the plaintiff at trial went beyond what the court had previously anticipated based
upon the plaintiff’s pre-trial representations. Accordingly, the circuit court acted within its
discretion when it changed its pre-trial ruling on this basis. Sometimes, “[t]he role and
importance of the disputed evidence, its fit with the other evidence in the case, and even the
precise nature of the evidence may all be affected by, or at least clearly understood within,
the context of the trial itself.” Tennant, 194 W.Va. at 112, 459 S.E.2d at 389.
The plaintiff asserts that he was surprised by this ruling, but the record reflects
that he was placed on notice at the beginning of trial that the defendant might seek
reconsideration of the in limine ruling if certain evidence was offered. Upon hearing the
additional arguments at the beginning of trial, the trial court left the issue open by saying,
“[l]et’s see how things go[.]” Because the plaintiff chose to present the additional evidence
and theories of liability, he opened the door for the court to reconsider its pre-trial ruling and
admit the 911 call into evidence.5
5
Any claim of surprise can be directly attributed to the parties’ attempt to “try” this
case before the trial by virtue of filing motions in limine. The 2014 Comment to Rule 103
of the West Virginia Rules of Evidence discourages motions in limine on the admissibility
of evidence “until the trial court has been given adequate context, and the evidence is
sufficient to permit the trial court to make an informed ruling.” Although this comment was
adopted after this case went to trial, it is nonetheless instructive. Once the circuit court heard
the evidence and theories of liability at trial, it was able to put the 911 call into its proper
context and determine that the call was admissible.
11
The plaintiff also argues that in reliance on the pre-trial ruling, he “forewent
the opportunity to subpoena any witnesses who were present at the accident scene to refute
or explain the statement made by the 911 caller, and he did not question the investigating
officer about the mysterious caller.” However, he fails to identify these other witnesses or
describe the nature of their anticipated testimony. Indeed, no such persons were listed in the
plaintiff’s written witness disclosure. Certainly, if there were known eyewitnesses to the
accident, they would have been called to testify at trial regardless of whether the 911 call was
excluded. The emergency responders and Officer Miller arrived after the collision and thus
would not have firsthand knowledge of who had the green light or whether either party was
driving in an unsafe manner. Moreover, when the trial court reconsidered its prior ruling, the
plaintiff had not yet rested his case. Thus, he could have sought the opportunity to call
additional witnesses or recall Officer Miller, but he did neither.
The plaintiff’s request for a mid-trial recess was for the sole purpose of
securing time to search for the 911 caller. There was nothing, however, to prevent the
plaintiff from searching for the caller before trial. Furthermore, the plaintiff was forewarned
at the beginning of trial that his additional theories of liability could make the 911 call
admissible. It is well-settled that “[a] trial court has considerable discretion as to matters
involving the length of a recess or temporary adjournment of a trial.” Syl. Pt. 8, State v.
Richey, 171 W.Va. 342, 298 S.E.2d 879 (1982). Likewise, we have said that “[o]rdering a
12
recess or temporary adjournment is within the sound discretion of the trial court.” Dupuy v.
Allara, 193 W.Va. 557, 564, 457 S.E.2d 494, 501 (1995) overruled on other grounds by
Pleasants v. Alliance Corp., 209 W.Va. 39, 543 S.E.2d 320 (2000). We find no abuse of
discretion in the circuit court’s decision to deny the plaintiff’s request for a mid-trial recess.
2. Admissibility of the 911 Call
The plaintiff contends that the 911 call should have been excluded pursuant to
various provisions of the West Virginia Rules of Evidence. He argues that the 911 call was
irrelevant, unfairly prejudicial, hearsay, and/or was made by a person lacking personal
knowledge. We disagree.
First, the caller’s statement–the “red truck, [it] pulled out in front of the
vehicle”–is minimally probative to a determination of the proximity of the vehicles to one
another and to the intersection. Because the plaintiff chose to offer a theory of liability that
the plaintiff was already in the intersection and thus the defendant should have yielded
regardless of who had the green light, the circuit court correctly ruled that this evidence was
relevant and admissible under Rules 401 and 402 of the Rules of Evidence. See W.Va. R.
Evid. 401 (providing that evidence is relevant if it tends to make fact more or less probable);
W.Va. R. Evid. 402 (declaring that relevant evidence is admissible).
13
Second, the admissibility of this evidence was not substantially outweighed by
the danger of unfair prejudice, thus the circuit court was not required to exclude it under Rule
403 of the Rules of Evidence. See W.Va. R. Evid. 403 (providing that relevant evidence may
be excluded if its probative value is substantially outweighed by danger of unfair prejudice).
In fact, the 911 call is fairly innocuous. The caller merely said that the truck pulled out in
front of the car, and it is undisputed that the plaintiff did pull his pickup truck in front of the
defendant’s car. Importantly, the 911 caller did not say who had the green light, who had the
right-of-way, or whether either driver was speeding or driving in an otherwise unsafe
manner. The plaintiff’s counsel was permitted to highlight these limitations in the 911
evidence for the jury, including during his cross-examination of the 911 official who
authenticated the audio recording. Although the circuit court was previously concerned that
the call might be to “some degree” prejudicial, that was based upon the court’s pre-trial
understanding of the plaintiff’s theory of liability.6
Third, the circuit court did not abuse its discretion when finding that the 911
caller’s statement was admissible under Rule of Evidence 803(1), the present sense
impression exception to hearsay. This exception provided that “[t]he following [is] not
6
The plaintiff asserts that the 911 call was particularly prejudicial because it
constituted the defendant’s entire case. However, the defendant had already testified at
length as an adverse witness during the plaintiff’s case-in-chief. Although the defense did
not call any additional witnesses, neither party has identified any other witnesses to the
collision.
14
excluded by the hearsay rule, even though the declarant is available as a witness: (1) Present
sense impression.–A statement describing or explaining an event or condition made while
the declarant was perceiving the event or condition, or immediately thereafter.” W.Va. R.
Evid. 803(1).7 The test for application of this exception is as follows:
It is within a trial court’s discretion to admit an
out-of-court statement under Rule 803(1), the present sense
impression exception, of the West Virginia Rules of Evidence
if: (1) The statement was made at the time or shortly after an
event; (2) the statement describes the event; and (3) the event
giving rise to the statement was within a declarant’s personal
knowledge.
Syl. Pt. 4, State v. Phillips, 194 W.Va. 569, 461 S.E.2d 75 (1995), overruled on other
grounds by State v. Sutherland, 231 W.Va. 410, 745 S.E.2d 448 (2013). Clearly, the 911 call
was placed shortly after the accident. The call was made for the purpose of obtaining
emergency responders to the accident scene, and the caller and the 911 operator discussed
whether there were injuries. Furthermore, the statement about which the plaintiff
complains–“the red truck, [it] pulled out in front of the vehicle”–is descriptive of the event.
The plaintiff focuses on the third part of the Phillips test, arguing there is no
evidence the 911 caller had personal knowledge of the accident. He suggests the caller might
not have personally observed the collision and could have happened upon the scene post­
7
This opinion quotes the version of Rule 803(1) that was in effect when this matter
went to trial in 2013. Stylistic changes were made to the rule in 2014, but the substance
remains the same.
15
accident. Having reviewed the transcript of the 911 call in the appendix record, we find that
the circuit court did not abuse its discretion when rejecting this argument. The caller’s
description of the scene, the drivers’ physical conditions, and the collision itself, all indicate
that she had personal knowledge of the information she relayed to the 911 operator. Indeed,
the plaintiff’s truck was spun around and resting in a different direction in the roadway from
that in which it had been traveling, yet the caller was able to correctly recount that the truck
had pulled in front of the car. As we have previously recognized, “if the statement is
sufficiently descriptive, it may itself demonstrate the declarant’s knowledge.” Phillips, 194
W.Va. at 578, 461 S.E.2d at 84.
Finally, the plaintiff asserts that if the 911 caller did not personally see the
accident, then she would lack personal knowledge sufficient to allow her to testify about
it–whether in person or via the audio recording of her telephone call. Rule 602 of the Rules
of Evidence provided that “[a] witness may not testify to a matter unless evidence is
introduced sufficient to support a finding that the witness has personal knowledge of the
matter. Evidence to prove personal knowledge may, but need not, consist of the witness’
own testimony.”8 We reject this argument for the same reason we rejected the plaintiff’s
hearsay argument; the contents of the 911 call sufficiently establish that the caller had
personal knowledge of the information she conveyed to the emergency operator.
8
This quote is of the version of Rule 602 in effect when the case went to trial.
16
Based on all of the above, we find that the circuit court did not abuse its
discretion in admitting the audio recording of the 911 call into evidence.
B. Opinion in the Accident Report
Next, the plaintiff argues that the circuit court erroneously excluded the
responding police officer’s opinion on fault that was stated in the accident report. Upon a
careful review of this issue, we find no abuse of discretion.
Following the accident, Officer Miller completed the accident report in which
he wrote that the defendant had failed to yield the right-of-way. The defendant moved in
limine to redact this portion of the report and to prelude the officer from offering this
particular opinion at trial. The defendant relied upon the officer’s deposition testimony,
during which he admitted he was not present when the accident occurred, he had no
knowledge as to which party had the green light, and it was just as possible that it was the
plaintiff who had failed to yield the right-of-way.9 Officer Miller also conceded during his
deposition that he was not an expert in accident reconstruction. During trial, the officer
9
The plaintiff has failed to include this deposition transcript in the record on appeal,
but he has not disputed these representations of the officer’s testimony. Further, the circuit
court quoted some relevant portions of the deposition transcript in its order denying the
plaintiff’s motion for a new trial.
17
confirmed that he did not know who “had the light” and he did not know “the series of lights
or the turn of events that happened[.]”
The trial court heard arguments on the defendant’s motion in limine on the
morning of the first day of trial. After a brief recess, the court granted the motion, ruling that
Officer Miller could “testify to his investigation, not the opinion.” The court explained,
“[y]ou can’t put together an opinion from nothing and whatever opinion [Officer Miller]
expressed [in the accident report][,] he took it back in his deposition. He basically denied
it and took it back. . . . But even if he has some degree of expert[ise], he has to have
something and I don’t think there is anything there.”
In the written order denying the plaintiff’s motion for a new trial, the court said
that “[i]n light of his clarification in his deposition,” the officer’s assessment of fault in the
accident report was unreliable, erroneous, prejudicial, and not probative. The court
acknowledged Officer Miller’s admissions that he had not personally witnessed the accident
and was not an expert on accident reconstruction. However, the court concluded that “even
assuming arguendo that [now-]Deputy Miller would qualify as an expert witness, he still
should not have been permitted to offer an opinion on who was at fault because such an
opinion would have been speculation, unreliable, and more prejudicial than probative.”
18
Although Officer Miller is not an expert in accident reconstruction, the plaintiff
argues that Officer Miller was nonetheless qualified to render an expert opinion on who was
at fault for this accident. West Virginia Rule of Evidence 70210 and Gentry v. Mangum, 195
W.Va. 512, 466 S.E.2d 171 (1995),11 allow a witness to be qualified as an expert on the basis
of training and experience. The plaintiff argues that by virtue of Officer Miller’s training and
experience,12 he was sufficiently qualified to render an opinion in the area of automobile
accident investigations. Thus, the plaintiff argues that the opinion on fault stated in the
accident report should have been admitted into evidence as an expert opinion.
10
When this matter went to trial in 2013, Rule of Evidence 702 provided that “[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.”
11
Gentry v. Mangum provides as follows:
In determining who is an expert, a circuit court should
conduct a two-step inquiry. First, a circuit court must determine
whether the proposed expert (a) meets the minimal educational
or experiential qualifications (b) in a field that is relevant to the
subject under investigation (c) which will assist the trier of fact.
Second, a circuit court must determine that the expert’s area of
expertise covers the particular opinion as to which the expert
seeks to testify.
Syl. Pt. 5, Gentry v. Mangum, 195 W.Va. 512, 466 S.E.2d 171 (1995).
12
At the time of this accident, Officer Miller had completed four months of training
at the State Police Academy, which included a component on vehicle accident investigations,
and he was a certified law enforcement officer. He had worked as a police officer for six
months and his duties included responding to automobile accidents.
19
We are wholly unpersuaded by the plaintiff’s argument. Moreover, he
misconstrues the trial court’s ultimate reason for excluding the evidence. Although there was
discussion about the officer’s qualifications to serve as an expert, the court nonetheless
assumed that the officer had “some degree of expert[ise][.]” Despite this assumption, the
court ruled that the opinion had to be excluded because the officer withdrew it during his
deposition. As the court explained, Officer Miller “basically denied it and took it back[.]”
Because the officer admitted that it was just as likely that the plaintiff had failed to yield, the
officer no longer had an opinion to render on the issue of fault. Accordingly, even accepting
the plaintiff’s contention that Officer Miller was qualified to render an expert opinion in the
area of automobile accident investigations, the fact remains that he retracted his opinion
before trial.
Even when a witness is qualified as an expert, the admissibility of his or her
testimony is generally within the sound discretion of the trial court. Syl. Pt. 6, Helmick v.
Potomac Edison Co., 185 W.Va. 269, 406 S.E.2d 700 (1991); State v. McKinley, 234 W.Va.
143, __, 764 S.E.2d 303, 322 (2014). The circuit court determined that Officer Miller’s
retracted opinion would be unfairly prejudicial and not probative. See W.Va. R. Evid. 401­
403. The court did not need to study the formerly-held opinion or its underlying
methodology to determine its irrelevance and prejudice. The officer himself, by his
admissions in the deposition, indicated its unreliable and speculative nature. As such, the
20
withdrawn opinion would not have assisted the jury in understanding the evidence or
determining a fact in issue. See W.Va. R. Evid. 702. Under the unique circumstances of this
case, we find no abuse of discretion in the circuit court’s ruling.13
IV. Conclusion
For the foregoing reasons, we conclude that the circuit court did not abuse its
discretion in denying the plaintiff’s motion for a mistrial or recess of trial, and in denying the
plaintiff’s motion for a new trial. Accordingly, we affirm.
Affirmed.
13
Notably, Officer Miller testified extensively at trial about the accident and his
investigation. He also explained the parties’ duties under various scenarios, depending on
who had the green light and whether the plaintiff’s vehicle was already in the intersection
when the defendant approached.
21