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State rests; Nestande may take stand in final day of testimony

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TWC News: State rests; Nestande may take stand in final day of testimony
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The state rested its case Monday in the hit-and-run trial of Gabrielle Nestande.

During morning testimony, the lead investigator on the case and accident reconstruction expert Michael McCarter was back on the stand, this time saying he believes the 25-year-old was “impaired” in the early morning hours of May 27, 2011. Nestande faces charges of manslaughter, intoxication manslaughter and failure to stop and render aid in the death of 30-year-old Courtney Griffin.

McCarter said based on previous evidence presented in court, including surveillance footage of Nestande staggering at Clive Bar on Rainey Street, he believes the Orange County native was intoxicated when she struck Griffin with her black BMW on Exposition Boulevard.

McCarter also said he observed a beer bottle in back seat of Nestande's car the morning of May 27, when it was parked at the apartment of William Marchbanks, Nestande’s boyfriend. McCarter conducted an interview with Marchbanks in his patrol unit when he arrived on scene, as well as at the district attorney’s office in June 2011 with his own attorney.

During the interview in the patrol car, McCarter said Marchbanks was “apprehensive,” using long pauses in between what he believes were “careful answers.”

But it was in the June, 2011 interview when Marchbanks told McCarter about a telephone call he had with Nestande after the accident, when she told him she knew she hit a person and “couldn’t get the image out of her head.”

During testimony last week, Marchbanks retracted that statement. He said during that phone conversation, Nestande told him she hit a deer and was worried her father was going to be angry about the damage to her vehicle. Previously, when Nestande returned to Marchbanks' place after the accident, she told him somebody threw a rock at her car.

Nestande told lobbyist and personal friend Cathy DeWitt that she in fact hit a deer and texted a photograph of her damaged windshield to DeWitt around 9:00 that morning. Nestande also texted DeWitt that she had five beers the night before.

When a Capitol staffer called DeWitt later that day to tell her about Nestande’s arrest, she at first thought there was a mix-up.

"No, she didn’t. She hit a deer," DeWitt said. "There is a mistake. There is confusion."

That same shattered windshield DeWitt saw on her phone was in the courtroom Friday morning. Just before breaking for lunch, crime scene specialist Juanita Vasquez and Assistant District Attorney Mary Farrington pulled out the shattered windshield that once belonged to Nestande's BMW and showed it to the jury.

After lunch, afternoon testimony was spent recreating the 2011 accident, first with reconstruction expert Leonard Vaughan, hired by the state.

The lights of the courtroom were turned off and black material was placed over the windows as Vaughan showed the jury pictures from his nighttime visibility study on Exposition Boulevard, performed in September 2012.

Vaughan used a model with Griffin's same height and weight and similar clothing to walk down Griffin’s path at night.

The photos were taken at various distances from the point of impact, which Vaughan believes was next to a bush, close to where Griffin’s body was found. Near that bush--in the bicycle lane--were Griffin’s wallet and one shoe. Her other shoe was found underneath the bush.

Vaughan says it’s “eerie,” but often times when a pedestrian is struck from behind they are knocked right out of their shoes near the last place they were standing.

The bush was an “unusual drag factor” in the accident, Vaughan says, because it hinders determining what speed Nestande was traveling. He says Nestande could have been traveling at 30 miles per hour or 60, and Griffin's body could have ended up in the same place because it was slowed by the foliage.

Vaughan concluded that if Griffin was walking on the roadway or in the bicycle lane, she would be visible to Nestande in the moments leading up to the crash.

After Vaughan’s cross examination, the state rested after five days of testimony.

The first witness called by the defense was Eric David Moody, hired by Nestande’s team to perform its own accident reconstruction. He spent his first part of testimony discrediting Vaughan’s visibility study, namely the errors that he says come with night time photography.

"I have walked the path of Ms. Griffin trying to understand how a tragedy like this happened," Moody said.

He told the jury they needed to take into account the idea of expectation--the fact that when the jury viewed the photos from Vaughan, they were expecting to see a pedestrian in the picture. When Nestande was driving down Exposition Boulevard in the early morning, she was not expecting to see a pedestrian, Moody said.

He also tried to debunk Vaughan’s theory that shoes were an indicator of area of impact.

“Think about when you come home and kick off your shoes,” he said. “They can fly six to eight feet.”

The defense will continue testimony Tuesday, when Nestande is expected to take the stand.

If found guilty, she faces two to 20 years on the manslaughter charges and two to 10 years for failure to stop and render aid.

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