Opinion
E044840.
6-25-2009
KENNETH CALVIN CARTER, Plaintiff and Appellant, v. COUNTY OF SAN BERNARDINO et al., Defendants and Respondents.
Law Offices of Bastian & Dini, Robert L. Bastian, Jr., and Marina R. Dini for Plaintiff and Appellant. Manning & Marder, Kass, Ellrod, Ramirez, Trevor Grimm, and Candace E. Kallberg for Defendants and Respondents.
Not to be Published in Official Reports
I. INTRODUCTION
Plaintiff Kenneth Calvin Carter appeals from judgment on a special verdict in favor of Defendants County of San Bernardino (County), Sheriffs Department Sergeant Wendell Anderson, and Sheriffs Department Deputy Robert Kirk following a jury trial. Carter contends that (1) neither probable cause nor exigent circumstances supported a warrantless, nonconsensual blood draw; (2) the trial court erred in directing a verdict in favor of defendants on his claim based on the warrantless blood draw and on his Tom Bane Civil Rights Act (Bane Act) (Civ. Code, § 52.1) claim and in failing to instruct the jury on his Bane Act claim; (3) the trial court erred in admitting into evidence an audio recording; (4) the trial court erred in admitting into evidence a videotape of Carter at his home; and (5) the trial court erred in the timing of other rulings. We find no error, and we affirm.
Although Carter frames the issue as a challenge to a directed verdict, the trial court actually granted nonsuit on certain of Carters claims.
II. FACTS AND PROCEDURAL BACKGROUND
On November 28, 2003, San Bernardino County Sheriffs Deputy Curtis Pitts responded to a radio call concerning a bar fight in the town of Wrightwood. When Deputy Pitts arrived at the bar, he learned that Carter had been hit in the left temple with a beer mug and had been knocked out. A Good Samaritan had driven Carter to Carters fathers nearby home. Deputy Pitts went there to determine if Carter needed medical attention, and paramedics also arrived on the scene.
An altercation ensued in which Carter struck Deputy Pitts in the face. Deputy Pitts arrested Carter for battery and interference with an officer and put out a call for assistance. Sergeant Anderson and Deputy Kirk responded to Deputy Pittss request and arrived at the residence about 12:30 a.m. on November 29. Carter was handcuffed on the ground outside, and paramedics were treating him. Carter had blood on his face and upper body; he was acting extremely agitated toward the paramedics and was using vulgar language. Sergeant Anderson requested additional backup.
Sergeant Anderson could smell alcohol on Carters breath and body and believed Carter was under the influence of alcohol. Based on Carters demeanor and behavior, including the fact that Carter had struck Deputy Pitts, Sergeant Anderson also believed it was "more likely than not" that Carter might be under the influence of methamphetamine. Sergeant Anderson had nearly 20 years experience as a law enforcement officer and nearly three years experience at the West Valley Detention Center, and in both roles, he had observed thousands of persons under the influence of controlled substances, many of whom "act[ed] in a similar manner as Mr. Carter did that evening, using vulgar language, being very agitated, very upbeat, energetic the way he was conducting himself."
Sergeant Anderson instructed Deputy Kirk to accompany Carter to the hospital to obtain a blood draw and arranged for a phlebotomist to go to the hospital. Sergeant Anderson estimated that it would take about 45 minutes to get to the Victor Valley Community Hospital (the hospital) from Carters fathers residence.
Sergeant Anderson testified that from his experience, it took at least 30 minutes to reach a magistrate by telephone. He continued: "Thats not 30 minutes to compile and complete the search warrant and then get ahold of the judge, read the search warrant to the judge. And then I would have had to take the search warrant to Mr. Carter at the [hospital]. All of those items would have taken many, many more hours to accomplish." Sergeant Anderson believed there were sufficient exigent circumstances to obtain a warrantless blood draw because of the evanescent nature of the blood evidence.
Carter was taken in handcuffs to the hospital and arrived about 1:30 a.m. on November 29. Carter was in Deputy Kirks custody at the hospital. Shortly after arriving at the hospital, Deputy Kirk turned on his belt tape recorder; Carter knew he was being audiotaped. An emergency room physician examined Carter at 2:10 a.m.; the examination revealed a facial contusion and alcohol intoxication, and Carter complained of pain in the left shoulder. A computer assisted tomography (CAT) scan was ordered, and at the technicians request, Carters handcuffs were placed on his wrists in front to facilitate the procedure. The emergency room physician also ordered a blood-alcohol level and a urine toxicology screen, although no sample was ever obtained for that screen.
Carter asserts that Kirk made the audiotape surreptitiously. However, on the tape itself, while Carter was complaining about numbness in his hand, Carter asked, "Does anybody have a tape recording this?" Deputy Kirk replied, "Yeah. I do," to which Carter responded, "Good." Later, Carter again asked, "You guys got that on a recording?" and Deputy Kirk replied, "Yeah." Counsel is reminded that a member of the bar "[s]hall not seek to mislead the judge, judicial officer, or jury by an artifice or false statement of fact or law[.]" (Rules Prof. Conduct, rule 5-200(B).)
The phlebotomist arrived about 4:30 a.m., and Deputy Kirk told Carter they were going to take his blood. Carter stated he did not consent to the blood draw. Deputy Kirk told Carter he was going to move the handcuffs behind Carters back again. Two hospital security guards assisted Deputy Kirk. Carter became upset and agitated, and he physically resisted being rehandcuffed by propelling himself backwards on the gurney and throwing Deputy Kirk into the wall. Deputy Kirk managed to gain control and moved Carters arms behind his back. During the rehandcuffing, Deputy Kirk heard a popping noise, and someone said, "`I think, we broke his arm." The blood draw was then completed.
In the presence of hospital staff, Carter complained loudly about his arm being broken. The emergency room physician visited Carter at 7:00 a.m. to suture his head wound. Carter told the physician that his (Carters) arm had been broken, but the physician did not do anything about that complaint.
At 7:30 or 8:00 a.m., Carter was released from the hospital and taken to the West Valley Detention Center, where he asked for medical aid for his arm. He was told there were X-ray facilities at the jail; however, he never received any examination or treatment. He continued to complain of pain, and a deputy rehandcuffed him using two sets of handcuffs to make him more comfortable.
Carter was released at 10:30 p.m. on November 29, by which time his arm was severely swollen. X-rays the next morning confirmed that he had in fact sustained a broken arm, described as a type 1 coronoid fracture—a chip smaller than the nail of the little finger—to the left elbow. That type of fracture would not cause any visible deformity, and could not be felt upon examination. Because Carter was being evaluated for a severe head injury, he could not have been given any pain medication even if it had been known that his arm was broken. Carters own doctor testified that no other emergency treatment was indicated. Rather, such an injury is treated through physical therapy.
Carters blood was drawn about 4:30 a.m. on November 29. His blood-alcohol content was then 0.13 percent. At the time of his arrest at approximately 1:00 a.m., his blood-alcohol content would have been closer to 0.19 percent.
Carter entered a plea of nolo contendere to a misdemeanor charge of resisting an officer. (Pen. Code, § 148.)
On December 18, 2004, Carter filed a complaint against the County, Deputy Kirk, Sergeant Anderson, and others. In the operative fourth amended complaint, Carter named additional defendants and asserted claims for assault and battery, violation of Civil Code section 52.1, intentional infliction of emotional distress, torts in essence, and negligence.
None of the other named defendants is a party to this appeal; Carters claims against the other defendants were terminated by settlement or dismissal.
The matter was tried to a jury. After Carter presented his last witness, the trial court granted nonsuit as to Carters claims (1) against Sergeant Anderson and Deputy Kirk arising from the warrantless blood draw; (2) against the County based on the Bane Act claim; and (3) against the County based on the Ralph Act (Civ. Code, § 51.7). The trial court further granted nonsuit as to all claims against Sergeant Anderson and ordered judgment entered in his favor. With respect to the remaining causes of action against the County and Deputy Kirk, the jury entered a special verdict in favor of defendants, finding that excessive force had not been used to obtain the blood draw, and defendants conduct did not constitute battery, negligence, or intentional infliction of emotional distress. Judgment was entered accordingly.
Other facts are set forth in the discussion of the issues to which they pertain.
III. DISCUSSION
A. Grant of Nonsuit
1. Standard of Review
The trial court granted nonsuit, in part, based on its determination that the warrantless blood draw was legal. We review that determination under the familiar standard that governs warrantless searches. The legality of a warrantless search is a mixed question of law and fact. When the issue is whether exigent circumstances justified a warrantless search, we engage in a two-step inquiry. First, we uphold the trial courts finding of fact as to what the officer knew or believed and what action he took in response if those findings are supported by substantial evidence. Second, we independently determine whether the officers conduct was reasonable under the circumstances. (People v. Duncan (1986) 42 Cal.3d 91, 97.)
We independently review the trial courts order granting nonsuit. (Wolf v. Walt Disney Pictures & Television (2008) 162 Cal.App.4th 1107, 1124-1125.) We sustain such an order if "`". . . interpreting the evidence most favorably to plaintiffs case and most strongly against the defendant and resolving all presumptions, inferences and doubts in favor of the plaintiff a judgment for the defendant is required as a matter of law."" (Nally v. Grace Community Church (1988) 47 Cal.3d 278, 291.)
2. Warrantless Blood Draw
In Schmerber v. State of California (1966) 384 U.S. 757 (Schmerber), the Supreme Court held that a forcible warrantless blood draw from an arrestee does not violate the Fourth Amendment when "(i) the test is incident to a lawful arrest for driving under the influence of alcohol or a drug, (ii) the circumstances require prompt testing, (iii) the arresting officer has reasonable cause to believe the arrestee is intoxicated, and (iv) the test is conducted in a medically approved manner." (Troppman v. Valverde (2007) 40 Cal.4th 1121, 1136, citing Schmerber, supra, at pp. 766-772.)
In Schmerber, the court explained: "The officer in the present case . . . might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened `the destruction of evidence, [citation]. We are told that the percentage of alcohol in the blood begins to diminish shortly after drinking stops, as the body functions to eliminate it from the system. Particularly in a case such as this, where time had to be taken to bring the accused to a hospital and to investigate the scene of the accident, there was no time to seek out a magistrate and secure a warrant. Given these special facts, we conclude that the attempt to secure evidence of blood-alcohol content in this case was an appropriate incident to petitioners arrest." (Schmerber, supra, 384 U.S. at pp. 770-771.)
Carter does not dispute there was probable cause to arrest him for battery on a peace officer (Pen. Code, § 243), resisting a peace officer (Pen. Code, § 148), and that he was legally under arrest when his blood was drawn. Search incident to arrest falls within a recognized exception to the general principle that a search without a warrant is constitutionally unreasonable. (Illinois v. Rodriguez (1990) 497 U.S. 177, 185.) Carter argues, however, that it was improper to search his blood for a crime other than that for which he was arrested. He argues that battery on a peace officer and resisting a peace officer are general intent offenses (see People v. Wright (2002) 100 Cal.App.4th 703, 721, fn. 21 [battery is a general intent offense]; People v. Lopez (1986) 188 Cal.App.3d 592, 602 [resisting a peace officer is a general intent offense]), and his blood-alcohol level was irrelevant to those offenses.
In People v. Bianco (1975) 55 Cal.App.3d Supp. 8 (Bianco ), the defendant was placed under citizens arrest for battery. When officers arrived on the scene, they detected the odor of alcohol emanating from the defendant, and they ordered a field sobriety test, which the defendant failed. (Id. at pp. 9-10.) Witnesses told the officers that the defendant had been driving immediately before the battery, and the officers told the defendant they were further arresting him for driving under the influence. The officers then caused a blood-alcohol test to be administered to the defendant. (Id. at p. 10.) At trial, the defendant successfully moved to suppress the results of the blood-alcohol test because the driving offense, a misdemeanor, had not been committed in the officers presence, and therefore the defendant could not lawfully have been arrested for that offense in the absence of a warrant. (Ibid.) The appellate department reversed, reasoning that because the defendant was already validly in custody under the citizens arrest for battery, there was no need for a separate arrest for the driving offense, and the blood test was therefore validly administered. (Id. at p. 13.)
Carter attempts to distinguish Bianco on the grounds that in that case, the battery and the driving offense arose from the same situation and involved the same witnesses, the officers had a witness who had seen the defendant driving his vehicle while intoxicated, and the officers did not claim that the blood test was conducted incident to the battery charge itself. (Bianco, supra, 55 Cal.App.3d Supp. at p. 12, fn. 2.) We are not persuaded that the distinctions Carter attempts to draw are legally significant.
Here, Sergeant Anderson had a reasonable basis for believing Carter was under the influence of methamphetamine. Sergeant Anderson testified it was "more likely than not" Carter had committed the offense of being under the influence of methamphetamine, a controlled substance. (Health & Saf. Code, § 11550.) Carter attacks Sergeant Andersons determination that Carter was under the influence of methamphetamine, because Sergeant Anderson never checked Carters eyes or inquired of the paramedics about narcotics intoxication, and Carter also challenges Sergeant Andersons qualifications to make such a determination because Sergeant Anderson was not a drug recognition expert. We conclude, however, that Sergeant Andersons qualifications are amply supported by substantial evidence in the record. Sergeant Anderson established his extensive background and experience—he testified that in his nearly 20 years in law enforcement, he had come in contact with about 2,000 people who were under the influence of controlled substances and that "[i]n the field, [he] observed individuals who were under the influence of controlled substances act in a similar manner as Mr. Carter did that evening, using vulgar language, being very agitated, very upbeat, energetic the way he was conducting himself." Sergeant Anderson testified that based on his "training and experience, [and] the symptoms and behavior of Mr. Carter at the time [he] came in contact with him, that probable cause did exist to request a blood draw." He also responded in the affirmative to the prosecutors question whether he "had probable cause to believe that Mr. Carter may have been under the influence of drugs[.]" Sergeant Anderson testified that Carters combative behavior was inconsistent with being under the influence of alcohol because "alcohol is a downer and it tends to slow you down and make you more lethargic and less active. And Mr. Carters behavior was quite the opposite of that."
Notably, the emergency room physician independently requested a blood-alcohol test and a urine toxicology screen, although no sample was ever obtained for that screen.
Carter further contends expert testimony is required to establish that a suspect is under the influence of a drug, citing People v. Manson (1976) 61 Cal.App.3d 102, 204, footnote 103. That case is patently inapposite—it concerned the requirement of expert testimony at trial to establish the defense of diminished capacity based on drug use. (Ibid.) Obviously, no such requirement applies to an officer in the field making a determination whether probable cause exists that a suspect is under the influence of narcotics.
Sergeant Anderson also testified he believed Carter could have committed the misdemeanor offense of public intoxication. (Pen. Code, § 647, subd. (f).) The elements of the offense of public intoxication are that a person is intoxicated in a public place and is unable to exercise care for his own safety or that of others. (Ibid.; People v. Lively (1992) 10 Cal.App.4th 1364, 1368-1369.)
Sergeant Anderson observed that Carter smelled of alcohol, and his conduct and demeanor indicated Carter was under the influence of alcohol. Sergeant Anderson had learned that Carter had assaulted Deputy Pitts and that Carter had been injured by being struck in the head at a bar. Sergeant Anderson had observed Carter "being extremely vulgar and was extremely agitated with the people that were trying to assist him and help him." Sergeant Anderson also knew that Carter had required the assistance of a Good Samaritan to drive Carter to Carters fathers residence from the bar. Based on all these circumstances, Sergeant Anderson could reasonably conclude that Carter had been in no condition at the bar to exercise care for his own safety.
We therefore agree with the trial court that probable cause existed for Sergeant Andersons belief that Carter had committed crimes, in addition to those for which he was arrested, and Carters blood-alcohol level was relevant to those additional crimes. Under Bianco, the fact that Carter had validly been arrested for assault on an officer entitled Sergeant Anderson to order a blood draw that was relevant for other offenses the sergeant reasonably believed Carter could have committed. (Bianco, supra, 55 Cal.App.3d Supp. at p. 13.)
And, as the trial court pointed out, even if Sergeant Anderson could not have arrested Carter for public intoxication without a warrant because the offense was not committed in the officers presence, Carter was validly under arrest for other offenses, and he still could have been charged with and prosecuted for the offense. (See, e.g., People v. Lively, supra, 10 Cal.App.4th at pp. 1368-1369 [the offense of public intoxication is complete when a person is "(1) intoxicated (2) in a public place and either (3) is unable to exercise care for his own safety or the safety of others or (4) interferes with or obstructs or prevents the free use of any street, sidewalk or public way"].)
3. Reasonable Necessity for Blood Draw
Carter next argues that even if probable cause existed to arrest him for a blood alcohol-related offense, a "substantial and reliable alternative way of proving that he was intoxicated that evening" existed, in that Deputy Kirk had made an hour-long audiotape of Carter at the hospital and had spent over seven hours with Carter. Thus, Carter argues, the blood draw was not even marginally useful, and the trial court should have employed a balancing test to determine the lawfulness of the blood draw. To support this argument, Carter cites Winston v. Lee (1985) 470 U.S. 753 (Winston), and Nelson v. City of Irvine (9th Cir. 1998) 143 F.3d 1196, 1201 (Nelson).
As discussed below, Carter also argues inconsistently that the audiotape was improperly admitted into evidence.
In Winston, the court considered whether the state could require the defendant to undergo a surgical procedure under general anesthesia to remove a bullet, fired by the victim of attempted robbery, from the defendants body. (Winston v. Lee, supra, 470 U.S. at p. 755.) The court reasoned that "[a] compelled surgical intrusion into an individuals body for evidence . . . implicates expectations of privacy and security of such magnitude that the intrusion may be `unreasonable even if likely to produce evidence of a crime." (Id. at p. 759.) This case, however, does not involve the intrusive surgical procedure at issue in Winston, and we therefore find that case unhelpful.
In Nelson, the Ninth Circuit held that when an arrestee had requested an alternative test, such as a breath or urine test, for determining intoxication, a warrantless blood draw was unnecessary and unreasonable, and violated the Fourth Amendment. (Nelson, supra, 143 F.3d at p. 1205.) In Ritschel v. City of Fountain Valley (2006) 137 Cal.App.4th 107, 120 (Ritschel), however, the court rejected the Nelson courts analysis as "particularly unpersuasive" because it was not supported by any federal case authority or by California law. We agree with the Ritschel courts holding; Nelson therefore does not provide any support for Carters position.
4. Exigent Circumstances
Carter next argues that the Fourth Amendment warrant requirement was not excused because no exigent circumstances existed to justify the warrantless blood draw.
In Schmerber, the court held that because the blood-alcohol level diminishes rapidly, and because "time had to be taken to bring the accused to a hospital and to investigate the scene of the accident, there was no time to seek out a magistrate and secure a warrant." (Schmerber, supra, 384 U.S. at pp. 770-771.) The California Supreme Court has similarly stated: "Because the `delay necessary to procure a warrant . . . may result in the destruction of valuable evidence, `blood and breath samples taken to measure whether these substances were in the bloodstream when a triggering event occurred must be obtained as soon as possible. [Citation.]" (People v. Thompson (2006) 38 Cal.4th 811, 825.) Thus, "the dissipation of blood-alcohol evidence `may constitute an exigent circumstance under the facts of a particular case. [Citations.]" (Ibid.)
The proper focus in determining whether exigent circumstances existed is on the circumstances known to Sergeant Anderson at 12:45 a.m. when he directed Deputy Kirk to accompany Carter to the hospital and arranged through dispatch for a phlebotomist to go to the hospital to conduct a blood draw. (See U.S. v. Chapel (9th Cir. 1995) 55 F.3d 1416, 1418 [stating that an officer ordering that a blood sample be taken must reasonably believe he is confronted with an emergency in which the delay necessary to obtain a warrant under the circumstances threatens the destruction of evidence].) Sergeant Anderson testified that in his experience, it took 30 minutes to an hour and 15 minutes to reach a magistrate by telephone, and then it would have taken "many, many more hours" to actually obtain the search warrant. We conclude that substantial evidence supports the trial courts determination that exigent circumstances existed.
Carter asserts that Sergeant Anderson "knew from experience that he likely could have obtained a telephonic warrant . . . within thirty minutes . . . ." In making this assertion, Carter blatantly misrepresents Sergeant Andersons testimony, as set forth above. Counsel is again reminded that a member of the bar "[s]hall not seek to mislead the judge, judicial officer, or jury by an artifice or false statement of fact or law[.]" (Rules Prof. Conduct, rule 5-200(B).)
5. Reasonableness of Procedures Used During Blood Draw
Carter contends that "erroneous evidentiary rulings prevented a verdict in [his] favor" on the issue of the reasonableness of the procedures used during the blood draw.
To be constitutional, the procedures used to extract a blood sample must be reasonable; trained medical personnel must take the sample in accordance with accepted practices. (U.S. v. Chapel, supra, 55 F.3d at p. 1418.) Carter has failed to cite any evidence that shows the blood sample was not taken by trained medical personnel or that accepted medical practices were not followed in taking the blood draw. Moreover, to the extent Carter bases his argument on the contention that his arm was broken during the blood draw, no evidence supports that argument. It was undisputed that Carters arm was broken when Deputy Kirk, assisted by the hospital security guards, were rehandcuffing Carters arms behind his back before the blood draw, and the jury expressly found that Deputy Kirks use of force was reasonable.
6. Bane Act Claim
Carter contends the trial court erred in granting nonsuit on his Bane Act claim and in failing to instruct the jury on that claim.
The Bane Act establishes a private right of relief when "a person or persons, whether or not acting under color of law, interferes by threats, intimidation, or coercion, or attempts to interfere by threats, intimidation, or coercion, with the exercise or enjoyment by any individual or individuals of rights secured by" the federal or state Constitutions or laws. (Civ. Code, § 52.1, subd. (a).) The elements of a Bane Act claim are as follows: "1. That [the defendant] interfered with [or attempted to interfere with] [the plaintiffs] [constitutional or statutory right] by threatening or committing violent acts; [¶] 2. [That [the plaintiff] reasonably believed that if [he/she] exercised [his/her] [constitutional] right [the defendant] would commit violence against [him/her] or [his/her] property;] [¶] [That [the defendant] injured [the plaintiff] or [his/her] property to prevent [him/her] from exercising [his/her] [constitutional] right or retaliate against [the plaintiff] for having exercised [his/her] [constitutional] right;] [¶] 3. That [the plaintiff] was harmed; and [¶] 4. That [the defendants] conduct was a substantial factor in causing [the plaintiffs] harm." (CACI No. 3025, italics & bolding omitted.) "The essence of a Bane Act claim is that the defendant, by the specified improper means (i.e., `threats, intimidation or coercion), tried to or did prevent the plaintiff from doing something he or she had the right to do under the law or to force the plaintiff to do something that he or she was not required to do under the law." (Austin B. v. Escondido Union School Dist. (2007) 149 Cal.App.4th 860, 883.)
Carter argues that Deputy Kirk committed coercion because Carters arm was broken. However, the jury found that any force used in getting Carter rehandcuffed was reasonable. And, as we have discussed above, the blood draw itself was constitutionally reasonable, and therefore Carter had no right to refuse to cooperate.
We conclude the trial court did not err in granting nonsuit on the Bane Act claim.
B. Evidentiary Rulings
Carter contends the trial court abused its discretion in (1) admitting into evidence the audiotape Kirk made at the hospital while Carter was awaiting treatment; (2) admitting into evidence a videotape made of Carter at his home; and (3) excluding Carters proposed expert witness testimony on the propriety of a warrantless blood draw.
1. Standard of Review
We review the trial courts evidentiary rulings for abuse of discretion. (People v. Horning (2004) 34 Cal.4th 871, 900.)
2. Admission of Audiotape
Carter contends the trial court erred by allowing defendants to introduce into evidence the audiotape recording that Kirk made at the hospital while Carter was awaiting treatment. The trial court ruled in motions in limine that the audiotape was admissible because it was relevant to Carters demeanor, and its probative value was not outweighed by its prejudicial effect.
The audiotape lasted approximately one hour and covered the period from about 1:30 a.m. until about 2:30 a.m. Carter states that the tape revealed he "was, as he conceded, intoxicated, aggravated, in pain, complaining and, alternatively, boorish and then, conciliatory towards the deputy . . . ." Also on the tape, Carter asked numerous times to have his handcuffs loosened and to have his personal doctor, wife, and an attorney notified.
Carter contends the tape was played for the jury over his objection, and again over his objection, was replayed for the jury during deliberations.
a. Invited error
Defendants contend that any error was invited because Carters own attorneys actually played the audiotape in Carters case-in-chief. Ordinarily, a party who offers inadmissible evidence cannot claim on appeal that its admission was erroneous. (In re Marriage of S. (1985) 171 Cal.App.3d 738, 745.) However, Carter argues that he introduced the evidence only after the trial court had ruled in motions in limine that the audiotape would be admissible. A party does not waive error by introducing responsive evidence after the trial court has ruled that evidence proffered by the opposing party will be admissible. (See, e.g., McLaughlin v. Sikorsky Aircraft (1983) 148 Cal.App.3d 203, 208-209.) We therefore conclude that any error was not invited, and we will address the issue on the merits.
b. Analysis
The only authority Carter cites to support his argument that it was error to admit the audiotape into evidence is Winterrowd v. Nelson (9th Cir. 2007) 480 F.3d 1181 (Winterrowd). However, Winterrowd does not in any way address the admissibility of evidence; rather, the court in that case affirmed the trial courts denial of the defendant state troopers motion for summary judgment in a drivers action under section 1983 of title 42 of the United States Code based on excessive force during a traffic stop. (Winterrowd, supra, at p. 1186.) Thus, Winterrowd is neither relevant nor helpful.
Here, the trial court found the audiotape relevant to and probative of Carters demeanor at the hospital. Deputy Kirk testified that when he told Carter he was going to rehandcuff Carters hands behind his back, Carter began to act like "on the tape." It was hotly contested at trial whether Deputy Kirk had used excessive force in rehandcuffing Carter, and Carters conduct and demeanor were highly relevant to that determination. We therefore agree with the trial court and find no abuse of discretion in the admission of the audiotape.
3. Admission of Surveillance Videotape
Carter next contends the trial court erred by allowing defendants to introduce into evidence a videotape recording of Carters activities at his home in Colorado.
a. Additional factual background
Defendants hired a private investigator to take a videotape of Carter and his family at their home through a telephoto lens. Carters attorney objected to the admission of the videotape on the ground that the investigator should have been required to take the stand to lay an adequate foundation showing that the videotape was obtained lawfully and was not the product of a trespass. The trial court overruled the objection on the ground that whether the videotape had been taken from a lawful vantage point was not an element of the foundation for admissibility, although Carter might have recourse in an action for trespass if the videotape had been obtained through trespass. The videotape was thereafter admitted into evidence.
The videotape showed Carter carrying a ladder with his left arm, climbing the ladder, carrying a duffel bag at the airport with his right hand, and carrying a garden hose on his left shoulder. Defendants counsel argued that those actions showed that Carters shoulder was not damaged.
b. Analysis
Carter argues that the videotape was erroneously admitted because no foundation had been shown that it had been obtained by lawful means rather than by an investigators trespassing on private property.
A party claiming error in the admission of evidence must show not only that error occurred, but also that the error was prejudicial, resulting in a miscarriage of justice. (Cal. Const., art. VI, § 13; Evid. Code, §§ 353, 354; Travelers Casualty & Surety Co. v. Employers Ins. of Wausau (2005) 130 Cal.App.4th 99, 117.) Although Carter complains that it was an abuse of discretion to admit the videotape, his entire argument as to how the purported error was prejudicial was as follows: "Of all the prejudicial inferences which the jury could have drawn from the investigators peeping at a distance at [Carter] and his family on his impressive Colorado ranch, nothing that remotely bore on his injuries or anything relevant in this trial could be drawn other than the videos utter irrelevance."
The videotape was relevant only to show that Carters alleged injuries were not as serious as he claimed. Because the jury found defendants not liable for Carters injuries, the jury never reached the issue of damages. Thus, even assuming, for purposes of argument only, it was error to admit the videotape, Carter has failed to show prejudice; by his own assertion, the videotape was "utter[ly] irrelevan[t]."
4. Exclusion of Carters Expert Witness and Timing of Ruling
In a convoluted and incoherent argument, Carter contends the trial court erred in the "timing in reaching its directed verdict." In fact, he appears to base his argument not on the grant of nonsuit after the close of his case, but on the assertion that "[h]alf way through direct examination of [Carters] expert, the trial court ruled, for all practical purposes in favor of defendant[s] by cutting off further examination of the expert" on the unlawfulness of the search. He notes that the legality of the blood draw was at issue in pretrial motions for summary adjudication, which the trial court denied on the ground triable issues of fact existed. He contends that no new evidence was developed at trial to justify nonsuit on the issue, so the trial court either made inferences from facts not in the record or overruled its prior ruling without a changed factual record. Carter argues that "[i]n addition to vitiating a major claim, the manner and timing of the courts ruling undermined the credibility of [his] expert."
a. Additional factual background
Carter called D. P. Van Blaricom as an expert witness on police patterns and practices. Specifically, Van Blaricom was asked to give his opinion on three issues: (1) "whether or not the blood draw was taken consistent with police practices and customs"; (2) "whether or not the force used was unreasonable under the circumstances"; and (3) "whether or not there was a failure to provide timely and reasonable medical care." The witness first testified as to his education, qualifications, and experience.
When Carters counsel asked Van Blaricom whether Sergeant Anderson had acted consistently with what would be expected of a reasonable police officer under the circumstances in ordering a blood draw, defendants counsel objected on the ground that no showing had been made that the witness was qualified to testify about the blood draw. The trial court sustained the objection. Defendants counsel conducted additional voir dire of the witness, during which it was established that the witness had never acted as a police officer in California, and he had no training in California law as it related to searches and seizures. After a series of questions, objections, and argument, the trial court excused the jury and further discussed the experts testimony with counsel.
The trial court stated that the admissibility of Van Blaricoms testimony should have been addressed in a motion in limine. After concluding that the question presented was one for the court, not for the jury or an expert witness, the trial court ruled that Van Blaricom would not be permitted to give an opinion on the propriety of a warrantless blood draw. Specifically, the trial court ruled that the witness was not "qualified to testify as to what the standards are in California under applicable California law on warrantless blood draws in the cases such as this based on his prior training, education and experience." The trial court further determined that exigency was not the subject of expert testimony.
The trial court instructed the jury: "In this case, Ive ruled on the objection, out of your presence, to the testimony of the witness of the subject of the blood draw. But I want to admonish you and want you to be mindful of a previous admonition I gave you that you should not speculate or be concerned about what the Courts ruling was or the reason for the ruling. Its a legal issue. And your job is to determine the facts as theyre presented. And the Courts responsibility is to determine what evidence is properly permitted. So please dont be concerned or speculate as to the reason why the Court sustained the objection."
Van Blaricom thereafter testified as an expert in the reasonableness of the use of force and the duty to obtain medical care for a person in custody.
b. Analysis
It does not appear that Carter challenges the merits of the trial courts ruling, but merely the timing of the ruling. However, as with any evidentiary objection, the timing of the ruling properly correlated to the proffer of evidence. Moreover, as to the merits of the ruling, we note that the constitutional reasonableness of a search is a question of law for the trial court, and on appeal, for this court. (See, e.g., People v. Superior Court (Nasmeh) (2007) 151 Cal.App.4th 85, 102.) Thus, we conclude the trial court acted well within its discretion in excluding the challenged testimony.
IV. DISPOSITION
The judgment is affirmed. Costs on appeal shall be awarded to defendants and respondents.
We concur:
McKINSTER, J.
RICHLI, J.