No. 13-1116 -        Aaron Browning v. David Hickman
                                                                           FILED
                                                                         June 10, 2015

                                                                      RORY L. PERRY II, CLERK

                                                                    SUPREME COURT OF APPEALS

                                                                        OF WEST VIRGINIA

Davis, Justice, joined by Benjamin, Justice, dissenting:

              In this civil appeal, the majority has upheld two evidentiary rulings made by

the circuit court: one ruling admitted the audio recording of a 911 call and the other excluded

opinion testimony by a law enforcement officer. For the reasons explained below, I strongly

disagree with both of these conclusions.



                           A. Inadmissibility of 911 Recording

              The circuit court found the 911 recording was admissible under West Virginia

Rule of Evidence 803(1) as a “present sense impression.” In affirming this ruling, the

majority found the recording was relevant, was not unfairly prejudicial, and met the criteria

for admissibility under Rule 803(1). As I will explain, these conclusions are simply wrong.



              1. Relevance. Pursuant to Rule 401 of the West Virginia Rules of Evidence,

“[e]vidence is relevant if: (a) it has any tendency to make a fact more or less probable than

it would be without the evidence; and (b) the fact is of consequence in determining the

action.”




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              In the 911 recording at issue, the caller stated “it was the red truck, it pulled out

in front of the vehicle.” Without explanation, the majority has concluded that

              [b]ecause 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.


The majority fails to explain how the statement offered in the 911 recording tends to make


more or less probable the plaintiff’s assertion that “the defendant should have yielded


regardless of who had the green light.” The scant 911 recording provides no detail


whatsoever about the circumstances of the collision or the events leading thereto. The caller


gave no indication of which party appeared to have the right-of-way, or whether one or the


other of the drivers was exceeding the speed limit. There simply is nothing in the recording


that sheds any light onto the question of which vehicle should have yielded to the other.


Therefore, the 911 recording was not relevant and should have been excluded. See


W. Va. R. Evid. 402 (providing, in part, “[i]rrelevant evidence is not admissible”).



              2. Prejudice. Assuming, arguendo, that the 911 recording bore some level

of relevance to the issues in this case, it should have been excluded insofar as its “probative

value is substantially outweighed by a danger of . . . unfair prejudice.” W. Va. R. Evid. 403.




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              This Court has explained that, “[a]s to the balancing under Rule 403, the trial

court enjoys broad discretion. The Rule 403 balancing test is essentially a matter of trial

conduct, and the trial court’s discretion will not be overturned absent a showing of clear

abuse.” Syl. pt. 10, in part, State v. Derr, 192 W. Va. 165, 451 S.E.2d 731 (1994).

Demonstrated in this case is a clear abuse of discretion by the trial court.



              “Rules 402 and 403 of the West Virginia Rules of Evidence . . . direct the trial

judge to admit relevant evidence, but to exclude evidence whose probative value is

substantially outweighed by the danger of unfair prejudice to the defendant.” Syl. pt. 4,

Gable v. Kroger Co., 186 W. Va. 62, 410 S.E.2d 701 (1991). By showing above that the 911

recording was not relevant to the issues presented in this case, I have demonstrated that it had

no probative value. Even the majority characterizes the recording as “minimally probative

to a determination of the proximity of the vehicles to one another and to the intersection.”



              Because the 911 recording had little to no probative value, it is easily

outweighed by the risk of prejudice: “[i]f the relevancy of the evidence is only slight

(remotely relevant to an issue of consequence or directly relevant to an issue of little import),

but it would likely be prejudicial, then any justification for its admission is only slight or

virtually nonexistent.” 1 Franklin D. Cleckley, Louis J. Palmer, Jr. & Justice Robin Jean




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Davis, Handbook on Evidence for West Virginia Lawyers § 403.02[2][d], at 4-71 (5th ed.

2012).



               The majority found the 911 recording to be “fairly innocuous.” To the

contrary, I believe that anyone hearing the statement made by the 911 caller, that “it was the

red truck, it pulled out in front of the vehicle,” would interpret the caller to be stating that the

red truck had, in fact, caused the accident. Such a conclusion, unaccompanied by any

supporting facts, is exceedingly prejudicial. Thus, I conclude that, in admitting the 911

recording, the trial court failed to properly weigh its significant prejudicial effect against its

admittedly “minimally probative” value. The majority perpetuated this error by affirming the

same.



               3. Rule 803(1). Rule 803(1) provides, in relevant part, that “[t]he following

are not excluded by the rule against hearsay, regardless of whether the declarant is available

as a witness: (1) Present sense impression. — A statement describing or explaining an event

or condition, made while or immediately after the declarant perceived it.” The Court has

established the standard for applying Rule 803(1) 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


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               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). The three factors

set out in Syllabus point 4 of Phillips are joined with the conjunctive “and,” meaning they

all must be present in order for a statement to be admissible under Rule 803(1). See, e.g.,

Jan-Care Ambulance Serv., Inc. v. Public Serv. Comm’n of W. Virginia, 206 W. Va. 183, 193

n.13, 522 S.E.2d 912, 922 n.13 (1999) (“Because of the use of the conjunctive ‘and,’ all of

the services contained in Section 1206(b)(4)(C) of the 1973 Act are required of an emergency

medical services system.”); Ooten v. Faerber, 181 W. Va. 592, 597, 383 S.E.2d 774, 779

(1989) (determining that the term “and” “clearly ma[de] both conditions necessary, not

merely either of the two.”).



               In the instant case, the second factor of the Phillips standard, requiring that “the

statement describes the event,” is absent. Syl. pt. 4, in part, Phillips, 194 W. Va. 569, 461

S.E.2d 75. The 911 recording included only a brief, incomplete, statement that “it was the

red truck, it pulled out in front of the vehicle.” As the majority points out, “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 ambiguous statement in the 911

recording fails to describe the accident with any useful detail that is relevant to the issues

presented in this case. As the majority correctly acknowledges, the theories of liability

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offered by the plaintiff were all based upon the fact that the plaintiff already was in the

intersection at the time of the collision.1 Because the vague statement made in the 911 call

does not in any way provide a description or explanation of the accident, it was not

admissible as an exception to the hearsay rule pursuant to Rule 803(1). See Phillips, 194

W. Va. at 578, 461 S.E.2d at 84 (“The second element of the present sense impression

exception is that the statement must describe or explain the event or condition and not just

‘relate to’ the event, as is permissible for excited utterances. Therefore, a statement that is

only evoked by an event and does not describe it is inadmissible under Rule 803(1).”). See

also 2 Cleckley, Palmer & Davis, Handbook on Evidence § 803.02[2][b], at 8-119

(discussing Rule 803(1) and explaining “[t]he scope of admissibility is narrow. It permits

only statements describing or explaining an event. (footnote omitted)).



                                B. Expert Opinion Testimony

               The majority herein also has affirmed the trial court’s ruling refusing to allow

Officer Miller to testify regarding his opinion about who caused the accident. Two grounds

were given by the trial court for excluding Officer Miller’s opinion testimony: Officer Miller

admittedly was not an expert on the issue of accident reconstruction and, during his



               1
                The plaintiff offered four theories of liability: (1) the plaintiff had the right-of­
way; (2) the defendant should have kept a better lookout, (3) the defendant should have
yielded to a car already in the intersection, and (4) the defendant should have refrained from
speeding.

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deposition, Officer Miller gave testimony that was inconsistent with the opinion expressed

in his report. Neither of these grounds justifies excluding Officer Miller’s opinion testimony.



              1. Expert Qualification. Expert witness testimony is governed by Rule 702

of the West Virginia Rules of Evidence. Rule 702 provides, in relevant part, “[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.”

Accord Syl. pt. 3, Ventura v. Winegardner, 178 W. Va. 82, 357 S.E.2d 764 (1987). See also

Watson v. Inco Alloys Int’l, Inc., 209 W. Va. 234, 242, 545 S.E.2d 294, 302 (2001) (“We

have previously interpreted Rule 702 as containing three major requirements: ‘(1) the witness

must be an expert; (2) the expert must testify to scientific, technical or specialized

knowledge; and (3) the expert testimony must assist the trier of fact.’” (quoting Gentry v.

Mangum, 195 W. Va. 512, 524, 466 S.E.2d 171, 183 (1995))).



              Regarding Rule 702, this Court has clarified that

              “[t]he rule ‘is one of admissibility rather than exclusion.’” In re
              Flood Litig. Coal River Watershed, 222 W. Va. 574, 581, 668
              S.E.2d 203, 210 (2008) (quoting Arcoren v. United States, 929
              F.2d 1235, 1239 (8th Cir. 1991)). “Disputes as to the strength
              of an expert’s credentials, mere differences in the methodology,
              or lack of textual authority for the opinion go to weight and not
              to the admissibility of their [sic] testimony.” Gentry v. Mangum,


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              195 W. Va. 512, 527, 466 S.E.2d 171, 186 (1995) (citation
              omitted).

Harris v. CSX Transp., Inc., 232 W. Va. 617, 621, 753 S.E.2d 275, 279 (2013). Indeed, In

Gentry v. Mangum, this Court explained that

              [t]he first requirement of Rule 702—that the proposed witness
              be an expert—has been liberally construed by this Court. Rule
              702 permits a circuit court to qualify an expert by virtue of
              education or experience or by some combination of these
              attributes. . . . [W]e have stated clearly that a broad range of
              knowledge, skills, and training qualify an expert as such, and
              rejected any notion of imposing overly rigorous requirements of
              expertise.

195 W. Va. 512, 524-25, 466 S.E.2d 171, 183-84 (1995) (footnote omitted). See also Harris,

232 W. Va. at 621, 753 S.E.2d at 279 (“Rule 702 reflects an attempt to liberalize the rules

governing the admissibility of expert testimony. . . . What this means is that the rule is one

of admissibility rather than exclusion.” (internal quotations and citations omitted)).



              On the issue of fault in automobile accidents, police officers have been

qualified as experts and permitted to give opinion testimony. See Gonzalez v. Conley, 199

W. Va. 288, 290, 484 S.E.2d 171, 173 (1997) (per curiam) (“The investigating police officer,

who stated during the trial that he was a trained and certified accident reconstructionist,

testified that in his opinion the appellant was at fault in causing the car accident.”); State v.

Hose, 187 W. Va. 429, 419 S.E.2d 690 (1992) (per curiam) (allowing trooper to testify as

reconstruction expert based upon his background and experience in accident reconstruction).


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              Particular to the instant matter, under the liberal standards of Rule 702 Officer

Miller was likewise qualified to offer his expert opinion regarding the party at fault for the

accident. He was a certified law enforcement officer who had completed the requisite

training for the position, which included a component on vehicle accident investigations. In

addition to his months of training, he had served as a law enforcement officer for an

additional six months at the time of the accident underlying this appeal. His duties as a law

enforcement officer included responding to automobile accidents, which gave him exposure

to numerous such accidents. Thus, the defendant’s challenge to Officer Miller’s credentials

should have been applied to the weight of his testimony and not to its admissibility.

“Disputes as to the strength of an expert’s credentials . . . go to weight and not to the

admissibility of their [sic] testimony.” Gentry, 195 W. Va. at 527, 466 S.E.2d at 186 (citation

omitted).



              1. Inconsistent Testimony. Finally, the majority has reasoned that Officer

Miller’s opinion was properly excluded because he gave testimony during his deposition that

was inconsistent with the opinion he expressed in his accident report. In reaching this

conclusion, the majority again fails to appreciate the difference between the admissibility of

evidence and the weight of such evidence.




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               The fact that Officer Miller’s report differed from his deposition testimony

does not provide grounds for excluding his testimony. Rather, it simply provided a

challenge to Officer Miller’s credibility. This Court has recognized that “[s]ubject to well

established exceptions, impeachment by contradiction may properly attack all kinds of

testimony, whether given on direct or on cross, and indeed all evidence, as well as inferences

suggested by evidence or arguments of counsel interpreting the evidence.” Syl. pt. 2,

McDougal v. McCammon, 193 W. Va. 229, 455 S.E.2d 788 (1995). In this vein, Rule 607

of the West Virginia Rules of Evidence allows for the impeachment of a witness as a means

of challenging the witness’ credibility. Pursuant to Rule 607, “[t]he credibility of a witness

may be attacked and impeached by any party . . . .” In other words, “[t]he credibility of any

witness . . . is always a proper subject of inquiry on cross-examination.” 1 Cleckley, Palmer

& Davis, Handbook on Evidence § 607.02[1][b], at 6-79. By excluding Officer Miller’s

testimony, the circuit court improperly usurped the jury’s role in assessing Officer Miller’s

credibility. See Estep v. Mike Ferrell Ford Lincoln-Mercury, Inc., 223 W. Va. 209, 220, 672

S.E.2d 345, 356 (2008) (“It was within the province of the jury to . . . determine the credibility of

witnesses.”); Brown v. Gobble, 196 W. Va. 559, 569, 474 S.E.2d 489, 499 (1996) (“[T]he trier of

fact is the ultimate judge of credibility and is free to accept or reject any testimony it does not find

credible.”); Syl. pt. 3, in part, State v. Guthrie, 194 W. Va. 657, 461 S.E.2d 163 (1995) (“Credibility

determinations are for a jury”).




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             The majority has affirmed this case. Based upon the erroneous evidentiary

rulings outlined above, this case should have been reversed and remanded for a new trial.

Thus, For the reasons set out above, I respectfully dissent. I am authorized to state that

Justice Benjamin joins me in this dissenting opinion.




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