Road Ranger Pedro Nieves didn't know what was causing cars to swerve in the center lanes of Interstate 595 in the middle of the night, so he pulled his truck onto the shoulder and turned on his warning lights.
He had been on the job helping motorists in distress for four months, but he still couldn't believe his eyes – a woman dressed in dark clothes was standing in the flow of traffic.
"She was bending down to pick up something, that's when I realized it was a person," Nieves testified in court Thursday. He yelled at her to get out of the road and come to the safety of his truck.
"She was looking at me, we were in contact, eyes to eyes ... a vehicle struck her and she flew in the air," Nieves said, crying and trying to compose himself as he recalled the horrible sight. "After I see the vehicle leaving the scene ... I just went in shock."
It was about 3:26 a.m. on Nov. 3, 2010, and the highway was very dark but Nieves said he had no doubt about what he saw.
The vehicle that first struck Maebell Johnson, he testified, was a small white car, a sedan that looked like a Chevy Monte Carlo.
But the person being prosecuted is a man who was driving a silver gray 2001 Dodge Caravan.
Joseph McGowan, 24. of Plantation, is charged with leaving the scene of a crash involving a death, and the criminal case against him will go to six jurors on Friday afternoon. McGowan has pleaded not guilty, and the jury must decide if he knowingly left the scene of an accident that he knew, or should have known, caused a death. If convicted, he could go to prison for two to 30 years.
The prosecution and defense in the case against McGowan agree on just a few things:
McGowan's minivan definitely struck Johnson, who suffered from dementia and wandered away from her Fort Lauderdale home. She was hit by more than one vehicle and dragged along the highway by a semitrailer truck. She died from several blunt force trauma injuries. McGowan went home and reported the accident about four hours later. There's no evidence he was speeding or had used alcohol or drugs.
Other than that, the two sides have very different theories.
Broward prosecutors say the Florida Highway Patrol's investigation shows McGowan's 2001 Dodge Caravan was the first of maybe two or three vehicles that struck Johnson, a hit that may or may not have killed her. By law, they say McGowan had a legal duty to stay at the scene and report the crash because he knew, or reasonably should have known, that he'd hit a person who was injured or died.
The defense says that in the dark conditions on I-595 just west of I-95, McGowan thought that some debris fell off a truck and struck his vehicle. He left the highway at State Road 7 and thought he'd only have to explain the damage to his parents.
His lawyer Robert Buschel says McGowan first realized he'd hit a person nearly four hours later when he showed the damaged vehicle to his father, a Plantation police captain, as soon as his dad woke up.
Buschel says that all the evidence is consistent with McGowan's account, including a mystery 911 caller who made a recorded phone call to Sunrise Police – shortly before 5 a.m. -- and said he witnessed a white car, possibly a Lexus, strike a person on I-595 and then flee to Plantation. The witness, who has never been found, said he saw the driver of that white car stop and remove the license plate.
The defense's theory is that the mystery white car, which also has never been found, was the first to hit Johnson and that her body was thrown in the air, landed briefly on the hood of McGowan's minivan, then flew back into the path of the tractor-trailer that dragged her along the highway. The driver of the 18-wheeler, who was not prosecuted, told police he thought he'd hit an animal.
McGowan had texted his girlfriend in a panic and told her something hit his minivan after it fell off a truck.
"It didnt stop so neither did I ... It was just so scary and unexpected," his text read.
McGowan left his damaged vehicle in plain view in his family's driveway and his father called the FHP as soon as he saw a smear of blood on the vehicle and some hair caught in a hole in the windshield.
Patrick McGowan, who has been a police officer for 27 years, broke down Thursday as he testified about that morning.
"I said 'Joe, it looks like you hit a person," McGowan said. "His eyes rolled back and he started collapsing, I had to hold him up."
McGowan said it looked like his son fainted and he had to half carry him back in to their home, where the older man reported his suspicion to a friend who worked for the FHP. When the FHP investigators came to the house, they photographed the dented hood, a spiderweb shattering of the windshield, and the missing headlamp. McGowan said he pointed out a 4-inch smear of blood on the vehicle and told them they should take a picture of it, too.
The younger McGowan did not testify in his defense but his texts to and from his girlfriend that night and the next morning are in evidence.
In a follow-up text he sent at 7:21 a.m., McGowan told his girlfriend:
"It looks like i may have hit a persin [sic] and somehow not realized."
"Im trying not to [worry]. I may have killed a person," he responded. "It was a person."
FHP Cpl. Victor Luquis testified Thursday he was "one hundred percent" certain that McGowan's minivan was the first vehicle to strike Johnson, that she was standing at the time and that McGowan was driving about 45 to 65 miles per hour.
Luquis has been under fire because the defense accused him of botching the investigation and failing to follow up on important evidence and leads, including the mystery 911 caller. A judge ruled earlier this week that Luquis broke legal rules that require him to turn over all relevant evidence to the prosecution and defense, saying he should have turned over copies of the 911 call and other leads. Important evidence, including phone records that could have been used to track down the mystery caller, were destroyed before the defense had any opportunity to follow up on them, Buschel said.
Luquis should have told prosecutors and the defense that there was another possible suspect before McGowan was charged 10 months after the accident, the defense argued.
Luquis said he dismissed the suggestion that another vehicle hit Johnson first, based on his review of the evidence. He said Plantation police searched for the 911 caller and the suspect motorist but found nothing.
He said he tried early in the investigation to find the witness but did not subpoena phone records for the number, which was assigned to a prepaid Verizon phone. The phone company doesn't keep subscriber records for prepaid phones, but the defense said records of incoming and outgoing calls that could have been used to find the witness were destroyed before the defense found out about the 911 call.
Luquis said he called the number but no one ever called him back. Of the information recorded during the 911 call, Luquis testified: "[I] didn' t say it wasn't relevant ... there was no evidence of it."
"I didn't find any physical evidence and couldn't locate this witness," Luquis told the jury.
A defense expert, who is an engineer and expert in applied physics, testified Thursday that he didn't dispute any of the facts that Luquis put in his report, but he did not agree with the conclusions that Luquis drew from them.
Tracy McSheery, whose company makes training videos for federal law enforcement and the U.S. military, testified that all of the information provided by witnesses — including the road ranger, McGowan and the mystery caller — led him to believe that McGowan's account is completely credible.
He showed jurors a graphic and three animated videos his company made based on the information in the trooper's report and the witness accounts that recreated what they said happened that night. The videos, with enhanced lighting added, gave jurors a view of what McGowan would have seen from the driving seat if the victim was struck by another vehicle and then thrown on to his vehicle for an instant before she flew backwards.
McSheery said it appeared that the FHP investigator "completely discounted" the road ranger's account and McGowan's explanation.
The defense told jurors in opening statements that the FHP picked McGowan as a "target" because he made it easy for them by reporting the accident. The FHP then failed to do a thorough investigation, Buschel said.
Johnson's death is a tragedy, Buschel told the jury, but he said convicting McGowan would be another tragedy.
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