776 S.E.2d 142
W. Va.2015Background
- On October 24, 2011, Browning (plaintiff) and Hickman (defendant) collided at an intersection; Browning was making a left turn and claimed he had a green turn arrow; Hickman was proceeding straight and said he had a green light. Both blamed the other.
- Browning sued for negligence, personal injuries, and property damage; the case went to a jury trial March 18–19, 2013.
- A Logan 911 caller identified only as “Toni” told dispatch that “the red truck pulled out in front of the vehicle.” The recording was produced in discovery but the caller was not located pretrial.
- The trial court initially issued an in limine order excluding the 911 call, but after Browning presented broader theories (failure to keep a lookout, yield to a car already in the intersection, speeding), the court reconsidered and admitted the recording as minimally probative and as a present-sense impression; Browning sought a mistrial or recess to locate the caller, which the court denied.
- Officer Jacob Miller prepared the accident report saying the defendant failed to yield, but in deposition he disavowed knowing which driver had the green light and conceded it could have been Browning; the court granted a motion in limine excluding the officer’s fault opinion from trial.
- The jury returned a verdict for Hickman; Browning moved for a new trial, arguing (1) error admitting the 911 call and (2) error excluding Miller’s opinion; the trial court denied the motion and the West Virginia Supreme Court affirmed.
Issues
| Issue | Browning's Argument | Hickman's Argument | Held |
|---|---|---|---|
| Admissibility of 911 recording (mid-trial reversal of in limine) | Court abused discretion by reversing pretrial ruling mid-trial and admitting prejudicial hearsay without caller testimony | Trial court properly revised in limine ruling after Browning’s broader theories made the recording relevant; no abuse of discretion | Affirmed — trial court acted within discretion to reconsider and admit the call given trial context |
| Whether 911 recording was hearsay / admissible under Rule 803(1) (present sense impression) | Recording was ambiguous, not descriptive, lacking personal knowledge, and unfairly prejudicial — should be excluded | Recording described the event shortly after it occurred and was minimally probative of vehicle proximity; satisfied present-sense-impression exception | Affirmed — recording admissible under relevance rules and Rule 803(1); probative value not substantially outweighed by prejudice |
| Denial of request for mid-trial recess to locate 911 caller | Denial prejudiced Browning’s ability to rebut the caller’s statement; he relied on exclusion pretrial | No showing caller was locatable beforehand; trial court has discretion on recess length; Browning could have searched earlier or called witnesses | Affirmed — trial court did not abuse discretion in denying recess |
| Exclusion of Officer Miller’s accident-report fault opinion | Miller’s training/experience qualified him to give expert opinion; deposition inconsistency goes to weight, not admissibility | Miller retracted his earlier opinion in deposition and lacked direct knowledge; opinion would be speculative and more prejudicial than probative | Affirmed — court properly excluded the retracted, unreliable opinion despite potential qualification as an expert |
Key Cases Cited
- Luce v. United States, 469 U.S. 38 (1973) (pretrial in limine rulings may be altered when trial context changes)
- Tennant v. Marion Health Care Foundation, 194 W.Va. 97 (1995) (trial court has authority to modify in limine orders)
- Phillips, 194 W.Va. 569 (1995) (present-sense impression admissibility test: timeliness, descriptive content, personal knowledge)
- Gentry v. Mangum, 195 W.Va. 512 (1995) (liberal standard for qualifying expert witnesses by education or experience)
- Helmick v. Potomac Edison Co., 185 W.Va. 269 (1991) (expert testimony admissibility reviewed for abuse of discretion)
- Estep v. Mike Ferrell Ford Lincoln-Mercury, Inc., 223 W.Va. 209 (2008) (motion for new trial reviewed for trial court’s misapprehension of law or evidence)