Trial in Tapout Founder’s Fatal Crash Starts
Greg Savage Nov 30, 2010
SANTA ANA, Calif. -- Opening arguments in the trial of Jeffrey
David Kirby -- the man accused of killing Tapout founder Charles
Lewis Jr. -- got under way Tuesday morning in department C-30 of
the Orange County Superior Court. Deputy District Attorney Jason
Baez commenced his argument by conceding the car driven by Lewis,
who was also known as “Mask,” was driving at a high rate of speed
when the accident that took his life occurred.
Building on a point he made clear during jury selection on Monday, Baez declared that contributory negligence by Lewis is not a defense Kirby can employ.
“This case is about two drivers driving at very high speeds … one
of the drivers paid for his speed with his life,” Baez told the
jury.
He went on to note that Kirby, 53, should have known better than to get behind the wheel while impaired because, as part of an arrangement after a 2002 driving under the influence conviction, he was required to attend a Mothers Against Drunk Driving victim’s panel in which he heard the story of a person whose life was devastated by a drunk driver.
Citing work done by Newport Beach police investigator Todd Bush, Baez claimed Kirby and Lewis were both traveling in excess of 100 miles per hour when Kirby lost control of his 1977 Porsche 911. He detailed the 613 feet of skid marks left on the uphill stretch of the southbound lanes of Jamboree Road as evidence of the suspected speed of the vehicle.
An illustration admitted into evidence showed the prosecutions version of the series of events that played out just before 1 a.m. on March 11, 2009.
Baez claimed Kirby was traveling in close proximity to Lewis’ 2004 Ferrari Modena when he lost control of his vehicle and spun out. He stated that investigators concluded that it was the left front end of Kirby’s Porsche that collided with the left rear tire of the Ferrari, causing it to spin out of control and into a concrete streetlight, severing the Italian car into two pieces and killing Lewis, 45, instantly.
He then noted that Kirby’s automobile came to a halt for no more than five seconds before it pulled away from the scene. A blood test performed more than two hours after accident showed Kirby’s blood alcohol level to be 0.13, still well above the 0.08 limit mandated by the state.
Kirby’s attorney, Mark Fredrick, offered his own opening statement to the jury and proffered a different scenario than the prosecution.
The defense put forth the picture of a man -- admittedly driving under the influence -- who was surprised by the “absolutely fearful” speed of a Ferrari they had just passed at a stoplight as it roared up towards them.
According to Fredrick, a scared Kirby tried to change lanes to get out of the way of the Ferrari when he lost control of the car and began to spin. There was no way to avoid contact with the Ferrari, claimed the defense. It was Lewis, driving at a blistering pace, who caused the accident, as stated by the defense.
“You will see, from the evidence, that Jeffrey Kirby did not cause the tragic accident,” Fredrick said to the jury.
Fredrick went on to state that neither Kirby nor his passenger, Lynn Marie Nabozny, had any idea the Ferrari had crashed. According to the defense, they thought it had blitzed right past them and thought the only impact they sustained was from hitting the median curb. Thus, claimed Frederick, they did not flee from anything.
With two divergent claims as to the cause of the violent collision on its plate, the jury began to hear from prosecution witnesses.
Katy McCaffrey, a resident with a view of Jamboree Road from her apartment just north of the accident site, testified under direct examination that she heard a “high-pitched whine” like the revving of motorcycles and looked out to see what she thought were cars racing down the wide-open expanse. She could only make out the color of a white vehicle, make unknown, “because they were going too fast.”
During cross-examination, Fredrick attempted to establish that McCaffrey did not identify two vehicles traveling in close proximity.
Newport Beach reserve officer Jonathan Sunshine took the stand next and described the unfolding accident scene that he witnessed as he was traveling northbound on Jamboree Road.
While transporting a passenger to Orange County jail, Sunshine observed headlights approaching from the opposite direction at a very high velocity. As they got closer he made out two distinct sets of lights before they disappeared in a cloud of dust. The Ferrari of Lewis emerged from the haze just before it careened into the light pole and broke in two.
He saw the other set of lights “swerving” before he saw the white Porsche spin to a stop between the two divergent sections of the Ferrari. After three to five seconds, Sunshine said he saw the Porsche continue to drive southbound away from the scene.
After putting out the call to dispatch for backup and fire rescue, Sunshine checked for occupants in the rear section of the Ferrari that was now at least 100 feet further south than the front of the car. He did not find anyone there and began to move toward the northernmost section of the barely distinguishable sports car.
On his way, he found Lacy Lynn White lying unconscious on the sidewalk. She was unresponsive but still breathing. He then moved to inspect the front of the Ferrari where he found Lewis trapped in the driver’s side of the wreckage with no signs of life.
Fredrick, in his cross-examination, called into question officer Sunshine’s recollection of events immediately following the collision, namely the order in which he put out the call and turned on his emergency lights.
Fellow Newport Beach police officer Todd Hughes was one of the first people to respond to Sunshine’s call. He testified that, after briefly surveying the accident scene, he set off in search of the late model white Porsche that had been seen driving away from the wreck.
He spotted the vehicle just around the corner, on Bison Avenue, and approached it looking for occupants. He noticed a pair of pedestrians on the next corner and observed one of them walking away, while the defendant walked back towards him and the damaged Porsche.
Officer Hughes then recounted his interaction with Kirby, stating he freely admitted he was the owner of the car and was behind the wheel. Hughes went on to testify that Kirby informed him that he saw a car pass him and commented to Nabozny that it was a Ferrari. According to Hughes, Kirby said she did not believe him, and he told Nabozny he would catch up to it and show her. He also claimed Kirby said he “was driving too fast” and spun around the vehicle.
The defendant, according to Hughes, also stated he pulled over because his passenger was upset that he was driving “too crazy.” Kirby said he offered to call her a cab, but she just started walking away, westbound down Bison Avenue.
Hughes eventually placed Kirby under arrest on suspicion of driving under the influence after a poor performance during a field sobriety test.
Kirby was subsequently charged with vehicular manslaughter with gross negligence while intoxicated, as well as driving under the influence causing bodily injury. According to Baez, Kirby can face a maximum of 18 years in prison, with 15 percent credit for good conduct.
The prosecution is expected to wrap up its case by Thursday, and the defense has estimated completing its case by Dec. 8. Court will not be in session this Friday or Dec. 10. The case is expected to go to the jury for deliberation either Dec. 9 or Dec. 13.
Editor’s Note: As a matter of full disclosure, Greg Savage was a friend of Charles Lewis Jr.
Building on a point he made clear during jury selection on Monday, Baez declared that contributory negligence by Lewis is not a defense Kirby can employ.
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He went on to note that Kirby, 53, should have known better than to get behind the wheel while impaired because, as part of an arrangement after a 2002 driving under the influence conviction, he was required to attend a Mothers Against Drunk Driving victim’s panel in which he heard the story of a person whose life was devastated by a drunk driver.
The prosecutor then went on to detail the people’s version of how
the collision happened.
Citing work done by Newport Beach police investigator Todd Bush, Baez claimed Kirby and Lewis were both traveling in excess of 100 miles per hour when Kirby lost control of his 1977 Porsche 911. He detailed the 613 feet of skid marks left on the uphill stretch of the southbound lanes of Jamboree Road as evidence of the suspected speed of the vehicle.
An illustration admitted into evidence showed the prosecutions version of the series of events that played out just before 1 a.m. on March 11, 2009.
Baez claimed Kirby was traveling in close proximity to Lewis’ 2004 Ferrari Modena when he lost control of his vehicle and spun out. He stated that investigators concluded that it was the left front end of Kirby’s Porsche that collided with the left rear tire of the Ferrari, causing it to spin out of control and into a concrete streetlight, severing the Italian car into two pieces and killing Lewis, 45, instantly.
He then noted that Kirby’s automobile came to a halt for no more than five seconds before it pulled away from the scene. A blood test performed more than two hours after accident showed Kirby’s blood alcohol level to be 0.13, still well above the 0.08 limit mandated by the state.
Kirby’s attorney, Mark Fredrick, offered his own opening statement to the jury and proffered a different scenario than the prosecution.
The defense put forth the picture of a man -- admittedly driving under the influence -- who was surprised by the “absolutely fearful” speed of a Ferrari they had just passed at a stoplight as it roared up towards them.
According to Fredrick, a scared Kirby tried to change lanes to get out of the way of the Ferrari when he lost control of the car and began to spin. There was no way to avoid contact with the Ferrari, claimed the defense. It was Lewis, driving at a blistering pace, who caused the accident, as stated by the defense.
“You will see, from the evidence, that Jeffrey Kirby did not cause the tragic accident,” Fredrick said to the jury.
Fredrick went on to state that neither Kirby nor his passenger, Lynn Marie Nabozny, had any idea the Ferrari had crashed. According to the defense, they thought it had blitzed right past them and thought the only impact they sustained was from hitting the median curb. Thus, claimed Frederick, they did not flee from anything.
With two divergent claims as to the cause of the violent collision on its plate, the jury began to hear from prosecution witnesses.
Katy McCaffrey, a resident with a view of Jamboree Road from her apartment just north of the accident site, testified under direct examination that she heard a “high-pitched whine” like the revving of motorcycles and looked out to see what she thought were cars racing down the wide-open expanse. She could only make out the color of a white vehicle, make unknown, “because they were going too fast.”
During cross-examination, Fredrick attempted to establish that McCaffrey did not identify two vehicles traveling in close proximity.
Newport Beach reserve officer Jonathan Sunshine took the stand next and described the unfolding accident scene that he witnessed as he was traveling northbound on Jamboree Road.
While transporting a passenger to Orange County jail, Sunshine observed headlights approaching from the opposite direction at a very high velocity. As they got closer he made out two distinct sets of lights before they disappeared in a cloud of dust. The Ferrari of Lewis emerged from the haze just before it careened into the light pole and broke in two.
He saw the other set of lights “swerving” before he saw the white Porsche spin to a stop between the two divergent sections of the Ferrari. After three to five seconds, Sunshine said he saw the Porsche continue to drive southbound away from the scene.
After putting out the call to dispatch for backup and fire rescue, Sunshine checked for occupants in the rear section of the Ferrari that was now at least 100 feet further south than the front of the car. He did not find anyone there and began to move toward the northernmost section of the barely distinguishable sports car.
On his way, he found Lacy Lynn White lying unconscious on the sidewalk. She was unresponsive but still breathing. He then moved to inspect the front of the Ferrari where he found Lewis trapped in the driver’s side of the wreckage with no signs of life.
Fredrick, in his cross-examination, called into question officer Sunshine’s recollection of events immediately following the collision, namely the order in which he put out the call and turned on his emergency lights.
Fellow Newport Beach police officer Todd Hughes was one of the first people to respond to Sunshine’s call. He testified that, after briefly surveying the accident scene, he set off in search of the late model white Porsche that had been seen driving away from the wreck.
He spotted the vehicle just around the corner, on Bison Avenue, and approached it looking for occupants. He noticed a pair of pedestrians on the next corner and observed one of them walking away, while the defendant walked back towards him and the damaged Porsche.
Officer Hughes then recounted his interaction with Kirby, stating he freely admitted he was the owner of the car and was behind the wheel. Hughes went on to testify that Kirby informed him that he saw a car pass him and commented to Nabozny that it was a Ferrari. According to Hughes, Kirby said she did not believe him, and he told Nabozny he would catch up to it and show her. He also claimed Kirby said he “was driving too fast” and spun around the vehicle.
The defendant, according to Hughes, also stated he pulled over because his passenger was upset that he was driving “too crazy.” Kirby said he offered to call her a cab, but she just started walking away, westbound down Bison Avenue.
Hughes eventually placed Kirby under arrest on suspicion of driving under the influence after a poor performance during a field sobriety test.
Kirby was subsequently charged with vehicular manslaughter with gross negligence while intoxicated, as well as driving under the influence causing bodily injury. According to Baez, Kirby can face a maximum of 18 years in prison, with 15 percent credit for good conduct.
The prosecution is expected to wrap up its case by Thursday, and the defense has estimated completing its case by Dec. 8. Court will not be in session this Friday or Dec. 10. The case is expected to go to the jury for deliberation either Dec. 9 or Dec. 13.
Editor’s Note: As a matter of full disclosure, Greg Savage was a friend of Charles Lewis Jr.
