Filed 6/13/17 P. v. Teague CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

v.

BRANDY TEAGUE,

Defendant and Appellant.
D070612



(Super. Ct. No. SCE349557)

APPEAL from a judgment of the Superior Court of San Diego County, Evan P. Kirvin, Judge. Affirmed.

Barbara A. Smith, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Collette C. Cavalier, and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
While under the influence of methadone and methamphetamine, Brandy Teague fell asleep at the wheel with her three minor children in the car, causing the car to veer off the road and strike a utility pole. One of the children died as a result, and the other two were injured. A jury convicted Teague of one count of vehicular manslaughter while intoxicated (count 1; Pen. Code, § 191.5, subd. (b)), with an enhancement for great bodily injury (Pen. Code, § 1192.7, subd. (c)(8)); one count of driving while under the influence of drugs causing injury (count 2; Veh. Code, § 23153, former subd. (e)), with an enhancement for great bodily injury of a child under the age of five (Pen. Code, § 12022.7, subd. (d)); three counts of felony child abuse likely to produce great bodily harm or death (counts 3, 4, 5; Pen. Code, § 273a, subd. (a)), two with enhancements for great bodily injury to a child under the age of five (Pen. Code, § 12022.7, subd. (d)); and one count of possession of methamphetamine (count 6, Health & Saf. Code, § 11377, subd. (a)). Teague also pled guilty to one count of driving on a suspended license (count 7; Veh. Code, § 14601.1, subd. (a)).
On appeal, Teague asserts that the superior court erred when it denied her motion for a mistrial after the investigating police officer became emotional and wiped his eyes while testifying. We conclude that the officer's brief show of emotion was not prejudicial and that the court did not abuse its discretion in denying Teague's motion. We therefore affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Teague's Methadone Use
In early 2014, Teague began receiving methadone under the supervision of a physician to address an addiction to prescription opiates. At the outset of her treatment, Teague signed a contract agreeing that she would not use any other drugs or alcohol while receiving methadone, and the clinic counseled her that she should not drive after taking her methadone, at least until she better understood how it would affect her, because it could cause drowsiness. The clinic gradually increased her dosage until September 2014, and then gradually reduced it until November 2014, after which Teague remained on a fairly high dosage of 144 milligrams per day. The clinic required Teague to come in each day to receive the methadone, but she eventually earned the privilege to take home three daily doses in a lockable black box on Fridays, to use on Saturday, Sunday, and Monday.
On April 2, 2015, Teague missed a dose of methadone for the first time in over a year. She returned to the clinic the following day, April 3rd, took her dose for that day, and picked up a black box with three additional doses for the weekend. Later that evening, Teague used methamphetamine, admittedly snorting "a couple of lines" of the drug.
The Collision
Around this same time, Teague had been fighting with her boyfriend, Carlos R., and had begun sleeping in her car after he asked her to leave their apartment. Her three children, C., Carlee, and B. had been staying in the apartment with Carlos but, on the evening of April 4th, Teague went to the apartment, fought with Carlos, and left with all three children in her car. It was approximately 5:00 o'clock in the evening when they left the apartment, and Teague and the children did not have anywhere to spend the night.
Teague drove to a liquor store to speak with a friend who she thought might give them a place to stay, but the friend was not there. She then drove to a gas station. While parked at the gas station, B. saw Teague ingest a single-dose bottle of methadone. Teague next stopped at a fast food restaurant to use the restroom and left all three children in the car, with the unlocked black box containing the additional doses of methadone, while she went inside. Teague then drove to another fast food restaurant and purchased food for the children at the drive through. As she was leaving the drive through, she had trouble keeping her eyes open and hit the curb. After leaving the fast food restaurant, Teague continued to struggle to stay awake while driving.
B. asked Teague to stop driving but she refused to do so and instead told him to put on some music and to keep her awake. However, it was getting late and B. fell asleep. Teague fell asleep at the wheel at around 9:45 p.m. and the car drifted up onto the sidewalk. The rumble of the car going over the curb woke B. and he looked over to see Teague with her eyes closed and her head on the steering wheel. Teague woke just as the car slammed into a utility pole, traveling at a speed of approximately 42 miles per hour. She was not able to swerve or apply the brakes.
Jon A. lived nearby, heard the collision, and went outside to investigate. He found B. walking alone up the sidewalk, complaining that he could not breathe. He took B. to the home of another neighbor, Natalie R., who stayed with him while Jon returned to the scene. B. was bleeding from his eye and shaking. He told Natalie that he kept telling his mother to stop driving and that they were going to crash because she was falling asleep, but she had not stopped and they had crashed.
When Jon returned to the site of the crash, Josh P., another neighbor, was attempting to open the back door of the car. With Jon's assistance, they were able to get the door open and found Carlee nonresponsive in the backseat. Jon tried to wake Carlee but did not want to move her, so he left her in place in the car.
Holly R. also went outside after hearing the collision. She saw Teague holding C., who was crying. Teague told Holly that her daughter was still in the car and Holly, who was trained in CPR, tried to find a pulse on Carlee but was unable to do so. She did not want to move Carlee or start CPR without Teague's consent, but she was unable to get Teague to focus on Carlee or to answer her request for permission to perform CPR on Carlee.
Teague was frantic and incoherent. She told Jon that she was tired and asked him to hold C. After Jon took C. from Teague, she began rifling through the car, purportedly looking for a cell phone. Instead, she found a small bottle and put it to her lips. Holly thought she saw Teague ingest whatever was in the bottle, although she did not know whether it was liquid or a pill, and Jon heard Teague say that the bottle was empty. Holly said, "great, now she is taking drugs" and Teague responded that it was medication and not drugs. Having finally gotten Teague's attention, Holly said "your daughter," at which point Teague turned toward Carlee and became very upset. Holly began praying over Carlee and Teague eventually joined her, until the police arrived and asked everyone to back away.
The paramedics found Carlee slumped over in her car seat in the backseat of the car. She had no pulse and was not breathing. They initiated CPR, removed her from the vehicle, and transported her to the hospital via ambulance. Unfortunately, resuscitation efforts were not successful and Carlee was pronounced dead at the hospital. C. was also taken to the hospital, where doctors determined that he had a fractured femur that required surgery.
El Cajon Police Officer White spoke with Teague at the scene. Teague was rifling through the black box on the ground outside the vehicle and told him that she had drunk one of the bottles of methadone after the collision and just prior to the arrival of the police officers. The police found three bottles of methadone in the black box; two of which contained a single dose of methadone and a third that was empty. They also found a baggie that contained a white crystalline substance in the car, which the laboratory later determined to contain 0.4 grams of methamphetamine.
Teague was placed on a backboard as a spinal precaution and loaded into an ambulance for transport. A paramedic assessed Teague and found her to be alert and oriented. The physician who treated Teague at the emergency room ran a blood panel and discovered that her potassium level was 2.5, well below the normal range of 3.5 to 5.0 (hypokalemia). Teague's blood tested positive for methamphetamine, amphetamine, and opiates.
Teague was released from the hospital and was transported to the police station at approximately 3:30 a.m., where the lead investigator, Officer Pittsley, conducted an interview. Teague admitted that she had used methamphetamine the night before the crash and that she had fallen asleep at the wheel, but again claimed that she had taken that day's dose of methadone shortly after the collision. She said that she had been planning to wait until bedtime to take it because she did not want it to make her "loopy," but then took it at the scene of the crash before the police arrived so that she would not get in trouble for skipping it.
The People charged Teague with one count of gross vehicular manslaughter while intoxicated (count 1; Pen. Code, § 191.5, subd. (a)), with an enhancement for great bodily injury (Pen. Code, § 1192.7, subd. (c)(8)); one count of driving while under the influence of drugs causing injury (count 2; Veh. Code, § 23153, former subd. (e)), with an enhancement for great bodily injury of a child under the age of five (Pen. Code, § 12022.7, subdivision (d)); three counts of felony child abuse likely to produce great bodily harm or death (counts 3, 4, 5; Pen. Code, § 273a, subd. (a)), two with enhancements for great bodily injury to a child under the age of five (Pen. Code, § 12022.7); one count of possession of methamphetamine (count 6, Health & Saf. Code, § 11377, subd. (a)); and one count of driving on a suspended license (count 7; Veh. Code, § 14601.1, subd. (a)). Teague moved to sever the count charging her with driving on a suspended license, and the court granted the request. Teague pled not guilty and proceeded to trial on the remaining charges.
Trial Testimony Regarding Effects of Methadone and Methamphetamine
Much of the testimony at trial centered on whether Teague's use of methadone and methamphetamine prior to the collision affected her ability to drive. Officer White testified that Teague was falling in and out of sleep and could not answer his questions when he interviewed her at the scene, but also noted that she was alert and even aggressive when discussing the methadone and was capable of walking on her own without stumbling. Officer White's partner, Officer Fisher, stated that Teague appeared lethargic and wobbly, but that she was also argumentative and elusive at times. Josh and Holly indicated that Teague was "hyped up," distraught, yelling and screaming and could not answer any questions.
Kristen Steward, the forensic toxicologist who tested Teague's blood following the collision, testified that an individual could be under the influence of methadone even at a therapeutic dose, and that this would be particularly true if the individual also used another illicit drug such as methamphetamine. She explained that an individual under the influence of methadone, methamphetamine, or a combination of the two, could become more awake and coherent for a period of time based on some sort of stimulus, but then become tired again. Officer Gray explained that a person would not typically exhibit signs of methadone use immediately, but rather, approximately two hours after ingesting it. Officer Fisher similarly described Teague's mannerisms at the scene of the crash as consistent with a person having ingested methadone approximately one to two hours earlier, and not immediately before.
Officer Gray and forensic toxicologist Steward also explained a phenomenon known as a methamphetamine crash. Officer Gray, who had specialized training in narcotics, explained that methamphetamine typically causes the user to behave erratically and expend a great deal of energy over a period of approximately 8 to 12 hours. Because of this, a person coming down from a methamphetamine high can become extremely tired, and this effect may be amplified by continued usage or a single high-dosage use. Steward opined that, because both a methamphetamine crash and opiate use could cause a person to become extremely drowsy, both occurring at the same time could have an additive effect.
In her defense, Teague asserted that her fatigue at the time of the crash was due to the low level of potassium in her blood, a medical condition known as hypokalemia. The emergency room physician testified that Teague was suffering from hypokalemia and that hypokalemia could cause weakness, an irregular heartbeat, and fatigue. He stated that it was possible that Teague crashed the car due to the hypokalemia, but that her inconsistent methadone use and methamphetamine use may also have exacerbated any such symptoms. A toxicology expert hired by Teague testified that it could have been the hypokalemia that caused Teague to fall asleep at the wheel, although he could not rule out the possibility that the methadone or methamphetamine contributed to or caused the accident.
Officer Pittsley's Testimony and Teague's Motion for Mistrial
Officer Pittsley testified that he was working in the communications center due to a staff shortage on the evening of the crash and answered the emergency call. He explained that he left the communications center shortly thereafter and personally responded to the scene because he could hear over the radio what the officers at the scene were seeing and knew that the situation was serious. At this point in his testimony, Officer Pittsley stumbled on his words and blotted his eyes with a tissue. However, he was able to continue testifying without taking a break.
A few minutes later, the court announced that it was time for the afternoon break and dismissed the jury. During the break, Teague's counsel moved for a mistrial based on Officer Pittsley "crying on the stand in front of the jury," arguing that the conduct was unprofessional and that there was a significant chance that the emotional involvement of the main detective on the case would prejudice the jury. The prosecutor responded that the facts of the case, including the death of a child, were emotional by nature, many of the witnesses had cried throughout the trial, and Officer Pittsley had not dwelt on his emotions but instead, continued to testify without needing a break. The prosecutor asserted that the brief emotional response was therefore not prejudicial.
The court denied the motion for mistrial, explaining:
"Well, I'll state for the record that Officer Pittsley did appear to become emotional at around the time of his testimony when he testified about getting the 911 call when he was in the communications center. I wouldn't call it a [sic] outburst of crying. It was sort of getting your voice caught in your throat and blotting his eyes with a tissue. That was the extent of it.
"It didn't relate to any specific evidence that I could see. It might have been he was recalling getting the emotional call as the 911 operator. I guess as far as full disclosure goes, I was once an El Cajon police department 911 operator. I don't know how many years ago that would have been. 25 maybe.
"So I didn't see any reaction from the jurors as to that display of emotion by Officer Pittsley. I don't believe there was any prejudice suffered by the defendant based on that. So I'll deny that motion."
Following the break, the court allowed several other witnesses with scheduling conflicts to testify. After those witnesses completed their testimony, Officer Pittsley continued his testimony without further incident.
The next morning, the court again addressed the mistrial motion outside the presence of the jury, noting that several witnesses had displayed emotion throughout the case and, most notably, that Teague had openly wept several times throughout the trial. The court commented that it was an emotional case but the jury would have to set aside any emotions or sympathy they may have. The court offered to give a curative instruction telling the jury to disregard any display of emotion that they observed from any person involved in the case, but defense counsel refused the instruction.
Before closing arguments, the trial court instructed the jury not to let bias or sympathy affect their deliberation. The prosecutor reiterated this point during her closing argument and did not discuss Officer Pittsley's emotional response in any way.
The jury found Teague not guilty on the charge of gross vehicular manslaughter while intoxicated but guilty of the lesser-included offense of vehicular manslaughter while intoxicated, pursuant to Penal Code section 191.5, subdivision (b). The jury found Teague guilty of all of the remaining charges, and found all of the enhancements true. After the jury returned its verdict, Teague pled guilty to the previously severed charge of driving on a suspended license.
DISCUSSION
A mistrial is appropriate where when an incident, such as an outburst by a witness or party in front of the jury, is so prejudicial that it irreparably damages the defendant's chance of receiving a fair trial and the court cannot cure the resulting prejudice through admonition or instruction. (People v. Avila (2006) 38 Cal.4th 491, 573.) The trial court's determination regarding the degree of prejudice incurred and its ability to cure it through instruction are inherently speculative. (Ibid.) Therefore, we afford trial courts a great deal of discretion in ruling on a motion for a mistrial and review such rulings for an abuse of discretion. (Ibid.)
The trial court concluded that Officer Pittsley's brief show of emotion was not unduly prejudicial. We agree. The court clarified for the record that Officer Pittsley did not have an emotional outburst but rather, simply got his words caught in his throat, blotted his eyes with a tissue, and then continued with his testimony. The court further noted that it did not appear that any members of the jury reacted to his doing so. Nothing in the record indicates that the incident was any more dramatic than the court described, and defense counsel did not dispute the court's account of the event. As the court noted, the case involved the death of a child, several other witnesses had displayed emotion, and Teague had openly wept at various points throughout the trial, such that there was no way to avoid the emotional nature of the case. The record supports the court's conclusion that the brief display of emotion that Officer Pittsley exhibited was not prejudicial.
Even if some modicum of prejudice resulted from the display of emotion, there was no indication that it irreparably damaged Teague's chance of receiving a fair trial or that the court was unable to cure any such prejudice by admonition or instruction. Indeed, the court offered to admonish the jury the next day, immediately following the disputed testimony, but the defense refused the court's offer. Regardless, the court did provide the jury with the standard instruction on the duties of the jury before closing arguments, reminding them that they were not to allow bias or sympathy to affect their reasoning. The prosecutor reiterated this point, affirmatively telling the jury that they could not allow their sympathies to affect their decision-making in the case. The prosecutor refrained from mentioning Officer Pittsley's emotional response in her closing argument. We presume that the jury understood and followed the court's instructions (People v. Holt (1997) 15 Cal.4th 619, 662); their verdict on count 1—finding Teague guilty of a lesser-included offense that required the jury to conclude that she was intoxicated but not grossly negligent—indicates that they were able to evaluate the intricacies of the facts and the law without relying on sympathies or emotion.
Teague asserts that this was a close case such that any prejudice resulting from Officer Pittsley's display of emotion could have tipped the scales. We do not find this argument compelling. It was undisputed that Teague fell asleep at the wheel, causing the collision. The primary contested issue was whether Teague was under the influence of methadone or methamphetamine at the time of the accident. Officer Pittsley offered little, if any, testimony relevant to this issue, particularly when compared to the numerous witnesses at the scene of the accident and the medical and toxicology experts presented by both sides. The prosecution did not present Officer Pittsley as an expert, nor even as a person with specialized knowledge, on intoxication or toxicology and he admittedly did not speak to Teague until hours after the collision and after she had received painkillers and anti-anxiety medication at the hospital.
Further, there was no connection between Officer Pittsley's display of emotion and the issue of Teague's level of intoxication. When Officer Pittsley teared up, he was discussing how he learned that the tragic collision that took the life of a young child had occurred. Those facts were undisputed and his display of emotion was no more prejudicial than the facts themselves. Moreover, there was a natural break in his testimony shortly thereafter followed by the testimony of several other witnesses, due to scheduling conflicts, such that Officer Pittsley did not testify regarding his interview with Teague until much later. Thus, there was a significant separation between Officer Pittsley's momentary emotional response and any testimony from him regarding Teague's demeanor or statements after the crash. It is unlikely that his brief emotional response had any effect on the jury's determination as to Teague's level of intoxication.
Teague suggests that this case is similar to People v. Fuiava (2012) 53 Cal.4th 622 (Fuiava). There, the court found that a prosecutor committed misconduct by eliciting testimony from a police officer that the uniform he was wearing was the one he had worn on the night the defendant allegedly shot his partner, that the uniform still had the blood of the fallen officer on it, and that the two were close, causing the testifying officer to cry briefly. (Id. at p. 693.) The prosecutor referred to the testimony during closing argument. (Ibid.) The court concluded that the prosecutor improperly used the officer's emotional response, as well as facts not in evidence concerning how officers typically suppress their emotions, to appeal to the jury's sympathies. (Ibid.) In contrast, the prosecutor in this case did nothing to elicit the officer's emotional response, the response was not based on the officer's personal relationship with the deceased but rather, on undisputed facts regarding the collision, and, most importantly, the prosecutor did not attempt to utilize the emotional response to appeal to the sympathies of the jury. Thus, the present case is similar to Fuiava only insofar as both involve a police officer expressing emotion while testifying. Contrary to Teague's assertions, such a limited display of emotion, without more, is not sufficient to establish irreparably damaging prejudice necessitating a mistrial.
DISPOSITION
The judgment is affirmed.


AARON, J.

WE CONCUR:




BENKE, Acting P. J.




HUFFMAN, J.