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People v. Kibby6/4/2003
ke ride about 4:30 or 4:45 p.m. Appellant "was just pulling out of my driveway in my vehicle," i.e., the van. Appellant told Miller she was just going across the street to pick up a friend. Miller asked appellant if she was drunk, and she replied that she wasn't. Miller asked appellant if she had been drinking because she "seemed . . . a little bit more relaxed and happier spirited than she normally did because she'd been pretty tense after she got out of . . . prison."
After appellant drove off, Miller spoke to Bonnie, who was "upset with her mother." At this point a sidebar conference ensued, because the People were trying to introduce a statement of Bonnie to Miller as an excited utterance. The prosecutor suggested the gist of Bonnie's statement to Miller was that Bonnie knew how much appellant had been drinking, saw appellant get in the van, and saw appellant "spin out in the back yard and run the van into his [Miller's] machinery and then takes off out in the street." The prosecutor suggested that witnessing this made Bonnie "bummed."
The trial court asked the prosecutor if "she"-meaning Bonnie-" the wreck?" The prosecutor responded, somewhat obliquely, "It flattened the tire ." It is clear from further discussion at sidebar that the parties believed Bonnie's hearsay statement to Miller would come in anyway through Bonnie's testimony, because she was going to testify-and if she denied making the statement to Miller, the statement would come in to impeach her.
The trial court ruled: "If your offer of proof is she saw an accident-collision that caused some damage, I'll allow it as an excited utterance based on the testimony she is apparently emotionally distraught." It appears the trial court was referring to the van's collision with unspecified machinery, apparently in Miller's back yard, which Bonnie did see-and not the collision with the power box, which she apparently did not.
Miller's testimony resumed. The prosecutor asked Miller if Bonnie had told him "why she was so upset when you got there" and "what [Bonnie] told you when she was there and what she saw." Miller responded, "Well, my carport opens into the back yard where there's a big [turnaround]. She [appellant] went into the back yard, made a wheelie and spun out. And on the way out she clipped the back end of the trailer I had sitting there and flattened the tire and knocked out the hub cap on the way out." Bonnie also apparently told Miller appellant had been drinking.
Bonnie told Miller appellant had gone to the nearby residence of her friend Becky. Miller walked to Becky's to retrieve his van. He stopped to talk to Officer Barry, and the van drove up with Becky at the wheel and appellant in the passenger seat. Miller noticed his van had been damaged by a collision, and had lost a side mirror. He began to fix the flat tire .
Becky testified on behalf of the defense. She testified that at approximately 1:30 p.m. on the day of the incident, appellant showed up at her house. Becky assumed appellant walked. After a while the two left to go into town, to a meeting of Alcoholics Anonymous. Becky noticed Miller's van parked outside her house, with the keys in it. Becky drove off, with appellant as the passenger. They drove back to the trailer park because appellant forgot a CD. At that point the two women encountered Officer Barry and Miller.
Bonnie testified and denied making the statement to Miller about appellant's driving the van and hitting something in Miller's back yard. Bonnie also said she did not see appellant driving a van the day of the incident. She did see the van pull up to the trailer park, with Becky at the wheel and appellant in the passenger seat. B
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