People v. Hughes (2020) 50 Cal.App.5th 257
After drinking alcohol, Michael Dwayne Hughes drove and collided with another vehicle. All three people in the other vehicle died as a result of the collision. The defendant had previously been convicted of driving under the influence, and had been advised of the dangers of drinking and driving. On the theory that he was aware of the risks of drinking and driving, the defendant was charged in the present case with three counts of second-degree murder.
At the trial, a critical issue in the case was whether the defendant’s actions constituted a substantial factor in the accident. Two prosecution witnesses testified that the deceased driver was the cause of the collision. Although they agreed that the defendant’s speeding and drinking may have played a role, both witnesses stated that the defendant’s speed was not unsafe and that he appropriately attempted to avoid the accident.
The prosecution then produced a new witness, Sergeant Berns of the highway patrol, who disagreed with his fellow officers. He testified that the accident would not have occurred but for the defendant’s intoxication and speed. Defense counsel objected to the evidence, which had not been previously disclosed to the defense. But the trial court allowed the testimony and later denied the defendant’s motion for a mistrial. Finding no prosecutorial misconduct, the only remedy the trial court provided was a jury instruction about the late discovery. The defendant was convicted and appealed. The Court of Appeal reversed, holding:
“We conclude the trial court abused its discretion in failing to grant Hughes a mistrial. The trial court had the opportunity to salvage the trial by continuing it and allowing the defense to locate, prepare, and seek the assistance of an expert to rebut the surprise expert causation testimony when the defense first objected. By failing to do so and allowing the prosecution to proceed in its questioning of the expert, the trial court contributed to a situation with no adequate remedy but a mistrial. We therefore reverse Hughes’s convictions.” Id. at 260-261.
The Court of Appeal explained that it did not matter whether the prosecution’s conduct in producing the surprise expert testimony was intentional or not, the prejudicial effect of the evidence was the same. The court wrote: “We think this is a rare case in which the trial court abused its discretion by declining to declare a mistrial. Whether the prosecutor acted intentionally or not, the effect was the same: the prosecution surprised defense counsel with new technical evidence on the most critical factual question relating to Hughes’s guilt on three murder charges.” Id. at 283.
The Court found that once the damning new evidence was introduced, the trial court should have granted a mistrial and continued the matter so that defense counsel could prepare to meet the evidence. The Court held that “the only effective remedy at that point was to declare a mistrial and allow Hughes to face trial again, prepared to respond to Sergeant Berns’s testimony on the merits. That is the remedy we order now.” Id. at 285.
