Judge Timothy Canning has denied a defense motion to dismiss the felony hit-and-run case against Jeffry Lee Tsarnas, but the judge did dismiss the special allegation that the victim, Marie Kelley, suffered great bodily injury when Tsarnas’s car struck her on Fernbridge in November 2018.
The motion to dismiss the hit-and-run charge was filed today as the jury trial was in progress, with defense attorney April Van Dyke arguing the prosecution had failed to turn over information that would have helped Tsarnas, namely that key witness Barbara Craft once told the District Attorney’s Office she had been “telling fibs” about Tsarnas.
Secondly, Van Dyke said Deputy District Attorney Roger Rees elicited false or misleading information from California Highway Patrol Sgt. Matthew Harvey, who testified he couldn’t recall smelling alcohol when he looked at the car the day after the collision. Tsarnas allegedly spilled a milk and brandy concoction in the car when the vehicle struck Kelley.
During that testimony, Rees pointed out it would be difficult to smell alcohol when the car doors were shut and the windows were rolled up.
In fact, Van Dyke argued today, recordings of the CHP interview with Tsarnas and Craft clearly reveal that Harvey opened the car door while he was talking to the couple.
As to Harvey’s testimony, Canning said California law is clear that the prosecution must correct false information provided by its own witnesses. On the other hand, it would have to be shown that the testimony would prejudice the jury. Also, Canning said, he’s not heard of cases being dismissed on those grounds before a defendant is convicted. If Tsarnas is convicted, Canning told Van Dyke, “I’ll be ready to revisit that.”
As far as the prosecution not turning over the information about Craft saying she lied, Canning said there was no evidence of “a substantial showing of harm” to Tsarnas.
Craft reportedly was sick of coming to court and was trying to get out of testifying when she told a false story about fibbing. No recording was made of her statement, and the district attorney’s investigator she spoke with has no memory of the conversation.
After Canning issued the ruling, Rees asked if Canning was declaring a “Brady” violation for withholding exculpatory evidence, which is a violation he would have to report to the California Bar Association. Canning said the violation was not “intentional or in bad faith,” so it would not need to be reported.
Van Dyke, who began her part of the case today, is trying to get Sgt. Harvey back into court but hasn’t been able to reach him. Harvey is out on bereavement leave. Van Dyke said she believed she could have Harvey back by tomorrow morning.
Another witness, a “Ms. Hansen,” is refusing to come to court, Van Dyke said.
All of the arguments on the motion to dismiss were held while jurors were out of the courtroom.
This afternoon Van Dyke called as a witness Patrik Griego, Marie Kelley’s former attorney, to ask him about texts he sent to prosecutors during the trial. Griego said he was providing updates on Kelley’s civil action against Tsarnas. Kelley settled with Tsarnas’s insurance company out of court, Griego said.
As to the special allegation that Kelley suffered great bodily injury, Rees agreed with Van Dyke that the charge should be dismissed.
Kelley suffered a broken ankle and three broken bones in her foot.
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