Appeal from the Superior Court of the District of Columbia (F-1804-00) (Hon. Shellie F. Bowers, Trial Judge)
Before Terry and Ruiz, Associate Judges, and Nebeker, Senior Judge.
The opinion of the court was delivered by: Terry, Associate Judge
Appellant was convicted of negligent homicide, in violation of D.C. Code § 40-713 (1998). *fn2 On appeal she contends (1) that the trial court abused its discretion in making two evidentiary rulings, (2) that the court gave improper jury instructions, (3) that the evidence was insufficient to support a conviction of negligent homicide, and (4) that the prosecutor misled the jury during his closing argument. We affirm.
On March 12, 2000, at approximately 12:45 a.m., appellant was driving southbound in the 1400 block of New Jersey Avenue, N.W., when her car struck and killed Lionel Tucker, a 56-year-old homeless man. She was traveling approximately twenty-five miles per hour in her 1998 Dodge Neon. Crystal Rodgers testified that she had an unobstructed view of the incident from a second floor window in her family home. Crystal, *fn3 who was at home that night styling a friend's hair, looked out the window at her friend's request to see if it was still raining. Coincidentally, she did so just as the accident was about to occur, and thus she saw appellant's car strike Mr. Tucker as he slowly walked, with the aid of a cane, across New Jersey Avenue. *fn4 Crystal's sister Benicia was in the next room. Crystal immediately informed her of the accident, and Benicia promptly went outside to assist Mr. Tucker. Benicia testified that she saw appellant alight from her car with a cellular phone to her ear, talking on the phone.
Officer Dana Robinson was the first to respond to the accident scene. She testified that when she arrived, Mr. Tucker was lying in the street, with his cane a short distance away. Although it was a dark and rainy night, the officer said, "we still had street lighting." As Officer Robinson tried to attend to the injured Mr. Tucker, appellant came forward and said to the officer, "I hit him. He came from out of nowhere." An ambulance arrived moments later and took Mr. Tucker to Howard University Hospital, where he was pronounced dead at approximately 1:38 a.m. The cause of death was determined to be a spinal fracture and torn spinal cord, injuries consistent with being thrown onto a windshield or pavement. In addition, his left leg sustained injuries indicating that he had been struck by an automobile in the back of that leg.
Other officers conducted an investigation at the accident scene. Lieutenant Bridget Sickon of the Metropolitan Police Department's Major Crash Unit, who performed a field sobriety test on appellant, testified that appellant had signs of impairment, including bloodshot eyes, a strong odor of alcohol, and a mildly affected walk. Lieutenant Sickon then performed a breath test, which showed that at 2:41 a.m. (almost two hours after the accident), when the test was conducted, appellant had a blood alcohol content (BAC) of .17 percent. Appellant also submitted a urine sample, which indicated a BAC of .19 percent. Both tests showed that appellant's BAC was well above the legal limit of .08 percent established by D.C. Code § 40-716 (b)(1) (1998). *fn5
Appellant was not arrested at the scene, but was permitted to leave pending further investigation. Several days later, after an arrest warrant was issued, she voluntarily surrendered.
Appellant's theory of defense was that her failure to see Mr. Tucker was the result of poor visibility attributable to rainy conditions and a malfunctioning street light, and that there was therefore no causal link between her negligence and Mr. Tucker's death. Appellant now challenges two evidentiary rulings by the trial court that related to this issue of visibility.
The defense sought to demonstrate that a street light above the point of impact was not working on the night when appellant's car struck Mr. Tucker. To show this, defense counsel offered into evidence a document from the Department of Public Works which stated that the light was repaired on August 23, more than five months after the accident. This document, however, did not indicate when the complaint for repair was lodged, and defense counsel produced no other evidence that the complaint was made at a time closer to March 12. The trial court therefore excluded the repair document as irrelevant, explaining, "This complaint may have been lodged two days before the repair. How do we know that this complaint for repair that was done August 23 had anything to do with the condition of the lights back in March? . . . [F]or this to be probative, it's got to relate back." Appellant now argues that this ruling was an abuse of discretion.
To be relevant, evidence must "tend[ ] to make the existence or nonexistence of a fact more or less probable than would be the case without that evidence." Punch v. United States, 377 A.2d 1353, 1358 (D.C. 1977) (citation omitted), cert. denied, 435 U.S. 955 (1978). The repair document did nothing more than to establish that the street light was malfunctioning five months after the accident. Because of the great length of time between the accident and the repair, with no way of knowing when the request for repair was made, the document could not support appellant's claim that the street light was out of order on the night of the accident. We hold accordingly that the trial court did not abuse its discretion in ruling that the repair document was not relevant. See Harris v. United States, 618 A.2d 140, 145 (D.C. 1992) ("Evidence which is remote in time to the events involved may be of scant probative value"); Collins v. United States, 596 A.2d 489, 494 (D.C. 1991) ("There comes a point . . . at which such evidence becomes too attenuated to be of relevance; some temporal nexus between [the evidence] and the crime is required").
In any event, the jury had already heard other evidence that the street light was not working, including a defense expert's analysis of the crime scene photographs and Crystal Rodgers' testimony that the street lights were "messed up" and would "go on and off." Thus the court's decision to exclude the repair document could not possibly ...