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Fuerst v. Tuccinardi2/19/2003
bility to the direct victim is established based on his intentional or negligent acts. Thus, because the jury found Lorrie was not primarily liable for Karen's death, there was no legal basis for them to consider whether he had secondary liability to the children for negligent infliction of emotional distress in any event. Accordingly, the children can identify no prejudice from the allegedly confusing instructions.
III. THE CHILDREN FAIL TO DEMONSTRATE THE TRIAL COURT'S EVIDENTIARY RULINGS CONSTITUTED AN ABUSE OF DISCRETION, OR RESULTED IN PREJUDICIAL ERROR.
The children challenge several of the court's evidentiary rulings. After a review of the entire record we conclude their claims lack merit.
A. It Was Not Error to Exclude Certain Photographs of Karen Covered in Blood.
The trial court did not permit the children to introduce into evidence photographs of Karen's body the police took either at the scene while paramedics rendered medical aid, at the hospital after being pronounced dead, and similar photographs. The children claim these photographs were relevant, material and crucial to proving their case "in that they showed the condition of decedent's gory body that appellants Karla Fuerst and Jennifer Tuccindari saw that was a substantial factor in the cause of their emotional injuries, . . . ."
The record does not support the children's factual assertion regarding the photographs' relevance. Jennifer testified she only saw her mother's legs from the knees down when her father opened the door to ask her to call Jason for help. Thereafter police officers kept Jennifer and her girlfriend in her bedroom with the door closed until paramedics removed Karen from the house. The children presented no evidence any of them present in the house actually saw Karen's bloody body.
Moreover, " rial courts have `broad discretion' under Evidence Code section 352 to weigh the probative value of gruesome or inflammatory photographs against their prejudicial impact. Appellate courts will not disturb this determination on appeal unless one factor clearly outweighs the other. [Citation.]"
This court has reviewed the challenged photographs. Some the court properly excluded under Evidence Code section 352 because they were duplicative. Others the trial court properly excluded as unduly inflammatory. For example, the photos of Karen taken at the hospital show her bare-breasted and literally covered in blood. These particular photos lack probative value to show either her wounds or their likely cause inasmuch as all visible areas of her body in the photos are completely covered in blood. Other photos of Karen presented her in such a gruesome fashion any probative value the photos might have had was clearly outweighed by the risk, indeed likelihood, they would disturb and thus prejudice the jury. In short, we find no abuse in the court's discretionary decision to exclude these particular photographs.
B. The Children Fail to Demonstrate How Specifying the Precise Amount of Assets Lorrie "Received" as a Result of Karen's Death Could Have Changed the Outcome.
To recall, Lorrie transferred money from a joint account into another account in his name alone after discussions with an attorney regarding the parties' rights in the event Karen divorced him or decided to have him committed. Over the children's objections, the trial court only permitted the parties to refer to the account as the couple's "life savings accumulated over 27 years of marriage" and/or to state the amount was "substantial." The court's order controlled until or unless further proceedings were necessary to determine punitive damages. Similarly, the court
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