Better Late Than Never

In a murder trial where defendant police officer maintained that he mistakenly shot the victim, thinking he was using his taser, the court did not err in excluding evidence that the police department changed its taser policy after the incident to reduce the risk of confusing the weapons, said the First District Court of Appeal in People v. Mehserle (June 8, 2012, A130654), __ Cal.App.4th __ [2012 DJDAR 7630].

Defendant served as a police officer for the Bay Area Rapid Transit District and was attempting to arrest and handcuff the victim when he pulled his handgun, stood up and fired a bullet into the victim's back.  At trial defendant testified that he did not intend to shoot, but only to tase him.  He said he was not aware that he had mistakenly drawn his handgun until he heard the shot.

Defendant unsuccessfully attempted to introduce evidence that after the shooting BART instituted a new taser policy, which mandated that officers carry tasers on the nondominant side of the body, and that officers draw their tasers only with their nondominant hand.  Defendant had worn his taser on his nondominant side, but set up so that it could be drawn with his dominant hand.  Defendant contended that the evidence would have shown that BART had a faulty taser policy and provided inadequate training, which was relevant to show whether the shooting was the result of criminal negligence.

On appeal, the Attorney General argued that the change in policy was evidence of remedial measures and inadmissible under Evidence Code §1151.  Defendant argued that §1151 did not apply to criminal proceedings.  Although the court of appeal noted that at least one case had applied §1151 in a criminal case, it chose not to decide the issue, finding that the evidence was properly excluded under Evidence Code §352.

The state of defendant's taser training was of doubtful relevance, said the court, especially considering the differences in color, weight, and location on the body of the taser and the handgun.  There also was an element of speculation as to why BART changed its policy, and introduction of the evidence might have led to a mini-trial on BART's administrative decisions as to its taser policy.  Under these circumstances, exclusion of the evidence was not an abuse of discretion.