FU LU SONG AND AMERICAN TRUCKING COMPANY vs CLINTON JENKINS; MALISSA LEY AND NICHOLAS WELBORN

• Court: District Court of Appeal of Florida
• Decided: March 31, 2023
• Docket: 23-0024
• Status: Published

Opinion

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

FU LU SONG AND AMERICAN TRUCKING COMPANY,

Appellants, Case No. 5D23-24 v. LT Case No. 2017-CA-003032-XXXX-MA

CLINTON JENKINS; MALISSA LEY AND NICHOLAS WELBORN,

Appellees.

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Opinion filed March 31, 2023

Appeal from the Circuit Court for Duval County, Robert M. Dees, Judge.

Chris W. Altenbernd and Sarah Lahlou-Amine, of Banker Lopez Gassler P.A., Tampa, for Appellants.

Brent G. Steinberg, Daniel L. Greene, and Jacob M. Schuster, of Swope, Rodante P.A., Tampa, for Appellee, Clinton Jenkins.

No Appearance for Other Appellees.

EDWARDS, J. Appellants, Fu Lu Song and American Trucking Company, appeal

several rulings leading to the verdict and final judgment for Appellee, Clinton

Jenkins. The subject accident happened on Interstate 95 when Song’s

tractor trailer veered into the lane to its right to avoid hitting the car ahead of

him, which slowed. Apparently to avoid Song’s truck, a car swerved to its

right and collided with a van in which Jenkins was a passenger. Song’s truck

did not collide with anything; he did not stop at the accident scene. The

accident sequence was captured on another vehicle’s dash camera.

Appellants argue that the trial court erred in admitting into evidence: (1)

irrelevant portions of the dash cam video, (2) the soundtrack of the dash cam

video, and (3) a diagram of the accident sequence. We agree and reverse

for a new trial on all issues.

Sequence of Crash-Related Events

The subject crash occurred south of downtown Jacksonville, Florida,

on northbound I-95 when the roads were wet. Traffic was moving along, until

those involved in this incident encountered heavier traffic that was moving

slowly. Song was driving a semi-tractor trailer owned by American Trucking

and was in the third lane from the right. When a vehicle ahead of him

appeared to be stopping, Song veered, at least partially, from his lane to the

right. This allegedly caused a car driven by Ms. Ley in the second lane from

2 the right, to swerve to her right, leading to the collision with the van in the

furthest right lane. Song returned to his original lane and continued traveling

north. He then moved one more lane to the left. At trial, he explained that

because he did not collide with any other vehicle, he did not think that he

needed to stop even though he noticed the wreck in his mirrors as he drove

along with the flow of traffic.

The dash cam that captured the collision belonged to Mr. Jordan, who

was a short distance behind Song, with one vehicle separating Jordan from

Song. Jordan drove in the same lane as Song, heading northbound. His

truck was equipped with a forward-facing dash cam that had an open

microphone audio system. The dash cam recorded good quality visual

images of the sequence of events prior to, during, and after the movements

and wreck described above along with the simultaneously recorded good

quality soundtrack primarily consisting of Jordan’s comments about the

wreck.

The dash cam video clip used at trial starts several seconds before

Song swerves to his right and continues for more than five minutes. The

parties agreed that the first 48 seconds of the videotape’s visual, silent

images were relevant to show the weather and traffic conditions prior to the

collision. The first 48 seconds also showed Song and Ley’s maneuvers, the

3 collision, and events soon after the collision, including Song moving to the

far-left lane and driving north with the flow of traffic. However, after the first

48 seconds the video does not depict anything related to the collision. The

traffic in the far-left lane that Song moved into, was traveling faster than the

traffic in Jordan’s lane, causing the two trucks to become separated.

The simultaneously recorded soundtrack of the dash cam system

captured all of Jordan’s wreck-focused comments which began with the

epitome of excited utterances, including some cursing, regarding the startling

collision-related events that had just unfolded in front of him. As Jordan

continued driving north on I-95, he is heard on the dash cam audio

recounting aloud to himself various comments about what he had just seen,

his successful efforts to get the license tag number of Song’s trailer, his

opinion that Song was going too fast for conditions, and statements that

Song caused the wreck. The soundtrack from the dash cam includes

Jordan’s call to 9-1-1 as he advised authorities of the wreck, relaying Song’s

tag number, his opinion that Song caused the wreck, and his statement that

some injuries likely occurred in the wreck. The 9-1-1 call is heard after the

first 48 seconds of the video. Throughout the video’s soundtrack, Jordan

can be heard commenting repeatedly that Song was not stopping and

essentially that Song was fleeing from the scene of the accident. Jordan

4 promptly turned over a copy of his dash cam video with audio to the Florida

Highway Patrol.

Jenkins proposed to introduce more than five minutes of both video

and audio from Jordan’s dash cam. Appellants filed motions in limine and

made repeated objections about it during trial. Appellants initially objected

to the entire video and its soundtrack, but later conceded that the first 48

seconds of silent video were relevant and admissible. Appellants maintained

their objection that any video after the first 48 seconds was irrelevant to any

issue of negligence, causation, or damages. They further argued that all of

the soundtrack was inadmissible due to it being irrelevant as the video was

complete in depicting the accident without having to hear Jordan swearing

or describing what can otherwise be seen on the video. Appellants also

objected to admission of the soundtrack on the grounds that it contained

improper lay opinions regarding Song traveling too fast, who was at fault,

and that the accident likely caused injuries. Additionally, Appellants objected

to Jordan’s repeated comments heard on the soundtrack that Song was

fleeing the scene of the accident as being irrelevant and more unfairly

prejudicial than probative under a section 90.403, Florida Statutes analysis.

At one point, the trial court seemed to largely agree with the Appellants

that only the first 48 seconds of the video, although with soundtrack, should

5 be played for the jury, as that portion showed the sequence of events and

vehicles involved in the collision. Ultimately, the trial court overruled all

objections made by Appellants and allowed Jenkins to play the five-minute

video with soundtrack or shorter excerpts from the same five minutes, during

various phases of the trial. Relatedly, the trial court permitted Jenkins to

argue, over Appellants’ objection, using the lengthy video and Jordan’s

comments, that Song was indeed fleeing the scene of the accident which

was proof that he was at fault. That led to Jenkins’ arguments that Song

should be found 100 percent at fault, with no apportionment of fault (which

he called a “discount”) to any other driver and for the jury to send a message

by its verdict that “says you don’t flee from the scene . . . then come in here

and get a discount.” 1 There was no evidence suggesting that anybody’s

injuries were made worse or longer-lasting because Song did not stop.

Jenkins seemingly, though not explicitly, used the long dash cam video of

Jordan’s slow pursuit of Song with Jordan’s running commentary as though

1 This argument is indicative of the nature and tenor of Jenkins’ trial theme regarding Song not stopping at the scene. However, there was no objection during trial to the clearly improper “send a message” closing argument, nor do Appellants raise that as a ground for reversal.

6 it were an episode of “Cops” with Song featured as the “bad boy” being

brought to justice before the jury. 2

“As a general rule, a trial court’s ruling on the admissibility of evidence

will not be reversed, absent an abuse of discretion.” McCray v. State, 919

So. 2d 647, 649 (Fla. 1st DCA 2006). “However, a court’s discretion is limited

by the evidence code and applicable case law. A court’s erroneous

interpretation of these authorities is subject to de novo review.” Id.; see also

Bauduy v. Adventist Health Sys./Sunbelt, Inc., 288 So. 3d 87, 89 (Fla. 5th

DCA 2019).

“Relevant evidence is evidence tending to prove or disprove a material

fact.” § 90.401, Fla. Stat. (2021). “The basic and critical issue is whether

the defendant was guilty of negligence which proximately caused the matter

about which complaint is made.” Lynch v. McGovern, 270 So. 2d 770, 771

(Fla. 4th DCA 1973). The first 48 seconds of the silent dash cam video are

clearly relevant to that issue. However, none of the dash cam video, after

48 seconds, sheds any light on any issue of liability or damages. “The

conduct of the defendant coming after the collision and incurrence of injuries

could have no proximate or causal relationship to the negligence or causal

2 The show’s theme song, “Bad Boys,” was performed by the reggae group, Inner Circle.

7 relationship to the negligence or liability question.” Id. Accordingly, we hold

that the trial court erred in admitting any portion of the silent dash cam video

beyond the 48 second point. 3

As for the soundtrack from the dash cam video, Appellants argued

pursuant to section 90.403 that it should have been excluded based on its

probative value being greatly outweighed by unfair prejudice. Portions of the

audio were possibly relevant, such as Jordan’s excitedly cursing about the

wreck to confirm that he was a percipient witness, saying that he got the

truck’s tag number to confirm it was Song’s truck, and commenting that Song

was not stopping. However, those were all cumulative of Jordan’s testimony.

Appellants did not contest whose truck or driver were depicted in the video,

nor did Song claim that he stopped. The repeated comments on the

soundtrack that Song was fleeing the scene were unfairly prejudicial and

irrelevant. Notwithstanding Jenkins’ arguments to the contrary, Jordan’s lay

opinions that Song was going too fast for conditions and that Song caused

the wreck were not admissible and invaded the province of the jury. We hold

that admitting the soundtrack under these circumstances was an abuse of

3 We acknowledge that a defendant’s post-accident conduct may be relevant in certain limited circumstances not present here. For example, in the case of identifying a hit-and-run driver who was likely intoxicated as his car definitely was the vehicle that ran over a paperboy. Busbee v. Quarrier, 172 So. 2d 17 (Fla. 1st DCA 1965).

8 discretion under section 90.403 and legal error to the extent irrelevant

evidence was presented to the jury via the audio.

Accident Report Diagram

Appellants argue that the trial court erred in permitting Jenkins to use

a diagram that was part of the official traffic crash report. The diagram

purports to show the path of Song and Ley’s vehicles leading to the crash.

Appellants objected that it was not to scale and demonstrably inaccurate in

its depiction of events when compared to the dash cam video. Jenkins

“authenticated” the accident diagram through the testimony of Jordan who

said it appeared accurate to him; however, Jordan admitted that he had

nothing to do with the diagram’s creation. Jordan also confirmed that he was

not an engineer, biomechanic, or accident reconstructionist. No evidence

was presented regarding who prepared it, who provided whatever

information was considered, nor how the path of each vehicle was

determined. That diagram was essentially a non-verbal depiction of opinions

formulated by an anonymous witness, relying on unknown information,

employing an undisclosed methodology.

Initially, over Appellants’ objections, Jenkins convinced the trial court

to allow him to use the diagram as a “demonstrative aid.” He argued that

counsel could get any one of the percipient witnesses to step over to the

9 ubiquitous courtroom easel to draw a similar diagram. We acknowledge that

many such simple diagrams prepared in court are usefully employed as a

demonstrative aid to generally orient the jury to the accident scene, location

of witnesses, etc.

Appellants additionally objected to the use of the diagram based on the

accident report privilege contained in section 316.066(4), Florida Statutes

(2021), which provides in pertinent part:

each crash report made by a person involved in a crash and any statement made by such person to a law enforcement officer for the purposes of completing a crash report required by this section shall be without prejudice to the individual so reporting. Such report or statement may not be used as evidence in any trial, civil or criminal.

Jenkins claims that by redacting all text and other official indicia on the

accident diagram connecting it with law enforcement and accident reports,

and by never referring to it as part of the traffic crash report, the statutory

privilege did not apply. Jenkins points out that nobody proved the diagram

was based on any statements from Song, Ley, or Jenkins thereby taking it

out of the scope of privilege. Appellants ask us to find that the term “such

report” in the above statutory section refers to all parts of traffic reports,

regardless of who prepared the report and whether or not the proffered

portion of the report was based upon the statement of a person involved in

10 the crash. We decline Appellants’ invitation to make any pronouncement

beyond the existing boundaries established by the statute and existing case

law interpreting it. If the diagram was based, in whole or in part, on

information provided by any of the people actually involved in the accident it

would be inadmissible; however, no proof one way or the other was offered

on that issue. See, e.g., Durse v. Henn, 68 So. 3d 271, 275 (Fla. 4th DCA

2011); Hammond v. Jim Hinton Oil Co., 530 So. 2d 995, 997 (Fla. 1st DCA

1988); Dinowitz v. Weinrub, 493 So. 2d 29, 31 (Fla. 4th DCA 1986).

Given that the dash cam video was repeatedly shown to the jury, even

if the accident report privilege does not apply, there was no need for using

the accident scene diagram as a demonstrative aid. Its utility was

questionable especially when so little was known about the diagram’s

accuracy in any respect. Whatever may have been improper about using it

as a demonstrative aid need not be analyzed at length as Jenkins next

offered the accident scene diagram into evidence. Over Appellants’

repeated objections of inaccuracy and privilege, it was received in evidence

and included in the exhibits sent back with the jury during deliberations.

Under the circumstances here, given that it was not properly authenticated,

not to scale, generally unexplained, and differed in its depiction from what is

clearly seen in the dash cam video, the trial court erred in overruling

11 Appellants’ objections to admitting it into evidence. See Louisiana-Pacific

Corp. v. Mims, 453 So. 2d 211, 212 (Fla. 1st DCA 1984); Ratner v. Arrington,

111 So. 2d 82, 85–87 (Fla. 3d DCA 1959) (explaining the important

distinction between demonstrative aides and admitted evidentiary exhibits).

Jenkins argues that any errors Appellants complain of were harmless.

However, he does not attempt to shoulder the burden placed upon the

beneficiary of improperly received evidence or improper argument to “prove

that there is no reasonable possibility that the error complained of contributed

to the verdict.” Special v. W. Boca Med. Ctr., 160 So. 3d 1251, 1265 (Fla.

2014). We find that the errors described above, individually and

cumulatively, deprived Appellants of a fair trial. Accordingly, we reverse for

a new trial on all issues.

REVERSED and REMANDED.

MAKAR and HARRIS, JJ., concur.