Kirby trial opens

SANTA ANA — With a drunk driving conviction already on his record, Jeffrey David Kirby of Costa Mesa chose to drink and drive again in March 2009, a decision that contributed to the death of a mixed martial arts icon, prosecutors said in opening statements Tuesday.

Kirby, 53, is accused of vehicular manslaughter with gross negligence after getting into a collision with Charles “Mask” Lewis of Huntington Beach on March 11, 2009, in Newport Beach. Lewis founded the TapouT clothing brand, which is popular in the world of mixed martial arts.

Deputy Dist. Atty. Jason Baez told the Central Justice Center jury that Kirby and Lewis were racing their European sports cars southbound on Jamboree Road, south of Eastbluff Drive. Kirby, who was on a date with a female passenger, was driving a 1977 Porsche.

Lewis was driving a 2004 Ferrari and had a female passenger in the car.

Baez told the jury that Kirby was drunk and lost control of his car during the race, spinning out and facing the wrong way on the street when Lewis’s car collided with his. The impact sent the Ferrari careening into a light pole on the right side of the street. Lewis died at the scene.

Kirby is accused of stopping briefly at the scene and then fleeing. He and his passenger were uninjured.

Mark Fredrick, Kirby’s defense attorney, didn’t deny the basic circumstances of the crash to the jury. Yes, Kirby had been drinking. Yes, he had a previous DUI conviction. And yes, his Porsche and the Ferrari collided while Kirby’s vehicle was spinning out.

But proving to a jury why Kirby spun out of control, that he didn’t know his car had collided with Lewis’s car, and realized that the Ferrari had crashed before driving away in his Porsche is where Fredrick has his work cut out for him. He is building his client’s defense around an argument denying those allegations, which are the crux of the prosecution’s case.

Newport Beach resident Katy McCaffrey, a witness for the prosecution, lives off Jamboree Road, not far from Eastbluff. On the stand Tuesday she testified that moments before the crash, she heard two vehicles revving their engines, then saw the white Porsche speed south on Jamboree. She described it as a flash, saying the car was going so fast that she could only distinguish it by its color.

Baez claimed that police concluded the Porsche was traveling at least 100 mph up the slope on Jamboree.

Fredrick tried to punch holes in McCaffrey’s testimony, emphasizing that she thought she heard two vehicles, but only saw the Porsche.

Fredrick told the jury that his client passed Lewis’s Ferrari at an earlier intersection, then saw Lewis driving up behind him at a “fearful” speed.

Kirby tried to steer away from the Ferrari and lost control, spinning out and colliding with the right curb before facing southbound again, Fredrick said.

The Porsche stopped for just a few seconds, with Kirby and his passenger unaware that the Ferrari they’d collided with had crashed because it was behind them, Fredrick told the jury.

Newport Beach Police Officer Jonathan Sunshine, a witness called by the prosecution, was first on the scene and saw the Ferrari crash.

Without saying there was no way Kirby could have missed the Ferrari’s violent crash into the pole, Sunshine said the Porsche stopped so close the scene that prosecutors argued that the defendant had to have seen the Ferrari hit the pole.

The Porsche stopped after the collision for three to five seconds, with debris from the Ferrari on either side of it and the emergency lights on Sunshine’s vehicle on, Sunshine testified.

Lewis’ car hit the pole so hard it sliced the vehicle in half, sending pieces tumbling up the road.

Kirby was arrested down the street where another police officer found him and his passenger walking away from the Porsche.

He didn’t resist when the officer contacted him and admitted to being involved in the crash, saying he was driving to fast and lost control, according to witness testimony.

Kirby sat at the defendant’s table with his head hanging during most of the morning testimony.

The trial is scheduled to continue Wednesday morning.