Leveritt v. StateLeveritt v. State
Robert Charles LEVERITT, Appellant/Cross-Appellee,
v.
STATE of Florida, Appellee/Cross-Appellant.
District Court of Appeal of Florida, First District.
*893 William J. Sheppard and D. Gray Thomas of Sheppard, White and Thomas, P.A., Jacksonville, for Appellant/Cross-Appellee.
Robert A. Butterworth, Attorney General, Bart Schneider and Carolyn J. Mosley, Assistant Attorneys General, Tallahassee, for Appellee/Cross-Appellant.
PER CURIAM.
Robert Charles Leveritt appeals his convictions for driving under the influence (DUI) manslaughter and vehicular homicide; and the state cross-appeals the trial court's downward departure on appellant's sentence. For the reasons that follow, we affirm all but one of the issues raised on appeal, and affirm the issue raised on cross-appeal. We also certify conflict with decisions of other districts as to one of the issues raised and certify a question of great public importance.
*894 Factual and Procedural Background
Following a day of playing golf with a friend, appellant lost control of his car on a rainy afternoon and was involved in a serious one-car accident. Appellant's passenger, his golfing friend and fellow U.S. Navy diver, was killed instantly. Appellant's blood was drawn at the hospital shortly after the accident, and an analyst for the Florida Department of Law Enforcement later tested the blood sample and found appellant's blood alcohol level to be .21. Appellant was charged with vehicular homicide and DUI manslaughter. Appellant moved to suppress results of the blood test. After an evidentiary hearing, the motion was denied.
At the ensuing trial, in addition to the blood test evidence, the prosecution adduced testimony from witnesses who saw appellant and the deceased passenger consuming Bloody Marys and beer on the day of the accident and other witnesses who smelled an odor of alcohol about the appellant's automobile after the accident. The evidence showed that there was, however, a period of several hours immediately prior to the accident during which appellant was not seen to have been drinking, and witnesses on the scene of the accident testified that they had not seen or found evidence of alcohol impairment in the accident. Without objection, the trial court instructed the jury to make certain presumptions of impairment pursuant to section 316.1934, Florida Statutes (1997), based on the blood alcohol test results, including the following:
If you find from the evidence that the defendant had a blood alcohol level of.08 percent [sic] or more, that evidence would be sufficient by itself to establish that the defendant was under the influence of alcohol to the extent that his normal faculties were impaired. However, such evidence may be contradicted or rebutted by other evidence.
The jury found appellant guilty on both counts. The trial court entered judgment adjudicating appellant guilty on both counts. This appeal ensued.
Blood Test Validity
Appellant raises several issues on appeal, most of which challenge the validity of the blood test, the central issue at trial, and the jury instruction made pursuant to section 316.1934. We find no merit to the arguments raised regarding the trial court's admission of blood samples taken from the appellant, as well as the test results based upon those samples. Further, we find no error in the trial court's decision to allow the medical examiner to testify as to the victim's blood alcohol level.
Among other things, appellant argues on appeal that he produced sufficient evidence of probable tampering with the blood samples to warrant suppression of the blood tests from trial. See, for example, Terry v. State,
We do agree with appellant that law enforcement officials erred when they examined appellant's medical records, upon receiving them from Navy investigators, without first obtaining a subpoena pursuant to section 395.3025(4), Florida Statutes (1997). We find that this error did not preclude admission of the records at trial, however, because the state later complied with the statutory procedures. See State v. Johnson,
*895 Statutory Presumption of Impairment
Appellant argues that the trial court reversibly erred in instructing the jury to make the statutory presumptions of impairment, see section 316.1934, Florida Statutes (1997), because rule 11D-8.012, Florida Administrative Code, the administrative rule implementing the implied consent statutes, was declared invalid under State v. Miles,
We agree with appellant that, because rule 11D-8.012 is invalid under Miles, the trial court used an erroneous jury instruction regarding the statutory presumptions of impairment. See Miles,
scientific tests of intoxication were admissible in evidence without any statutory authority if a proper predicate established that (1) the test was reliable, (2) the test was performed by a qualified operator with the proper equipment and (3) expert testimony was presented concerning the meaning of the test.
Id. at 699. Thus, the court concluded that "the implied consent provision of chapter 322[1] and the approved testing methods and presumptions contained therein are all interrelated," id. at 699 (emphasis added), and, accordingly, that "[n]one of the statutory presumptions can apply in the absence of compliance with the administrative rules." Id. at 700.
Subsequently, in Robertson, the supreme court held that blood tests are admissible in a criminal proceeding even when the administrative rules governing the tests have not been met, so long as the three-prong common law predicate for admission of such evidence has been satisfied. The supreme court specifically advised in Robertson, however, that without complying with the administrative rules, "the state is not entitled to rely on any of the presumptions created by the implied consent law. ..." Robertson, 604 So.2d. at 791.
In Miles, this court affirmed a trial court's ruling that rule 11D 8.012 did not ensure that reliable scientific evidence would be obtained using the storage procedures outlined in the rule and that, as a result, the state was not entitled to a presumption of impairment under section 316.1934. Miles,
On review of Miles, the supreme court held that this court did not err "in approving the finding of the trial court that rule 11D-8.012 does not comply with Bender and therefore may not give rise to the statutory presumptions associated with the implied consent law."
It is clear from Miles (i) that rule 11D-8.012 is invalid and (ii) that the statutory presumptions of impairment cannot be used when admissibility of the blood test is based upon the common law Bender test. Below, no determination was made as to whether the three-prong common law predicate had been satisfied and the record does not reflect direct testimony as to the reliability of the blood test used, prong one of the common law predicate. Even though Miles was decided while the instant case was pending on appeal, because under Miles the state was required to establish the validity of the intoxication tests under the three-prong common law predicate, we hold that the instructions to the jury in the instant case regarding the statutory presumption of impairment are contrary to law.
Below, appellant raised no objection to the impairment instruction. If a party neither objects to nor requests other jury instructions, that party's claim of error with respect to the jury instructions is precluded from appellate review absent fundamental error. Sochor v. State,
Change in Law During Pendency of Appeal
As noted, Miles was decided while the instant case was pending on appeal. As a general rule, appellate courts, in reviewing judgments on direct appeal, are required to apply the law prevailing at the time of the appellate decision. See Florida East Coast Ry. v. Rouse,
Fundamental Error
In the instant case, a central issue is whether the giving of the presumption of impairment instruction constitutes fundamental error. "The doctrine of fundamental error should be applied only in rare cases where a jurisdictional error appears or where the interests of justice present a compelling demand for its application." Holiday v. State,
We conclude that the instant case is controlled by Smith v. State,
The instruction in the instant case neither omitted from the definition of an offense one of the essential elements, nor misdefined one of the essential elements of an offense. The challenged instruction merely advised the jury of an evidentiary presumption or permissible inference that they were free to accept or reject. See State v. Rolle,
We recognize that some uncertainty exists in the case law defining the standard for determining whether fundamental error has occurred when an erroneous jury instruction is given that pertains directly to the proof of an essential element of the crime. See Reed v. State,
IN A DUI MANSLAUGHTER TRIAL, IS IT FUNDAMENTAL ERROR TO GIVE A JURY INSTRUCTION THAT IS ERRONEOUS BASED UPON THE PRESUMPTION OF IMPAIRMENT DECLARED INVALID UNDER MILES V. STATE[STATE V. MILES],775 So.2d 950 (Fla.2000), WHEN THE OPINION IN MILES WAS ISSUED DURING PENDENCY OF THE APPEAL IN THE INSTANT CASE, AND WHEN MILES CHANGED THE LAW *898 APPLICABLE TO THE JURY INSTRUCTION PRESUMPTIONS OF IMPAIRMENT, AND WHEN THE ISSUE OF IMPAIRMENT WAS DISPUTED AT TRIAL AND IS AN ESSENTIAL ELEMENT OF THE CRIME.
Downward Departure
As to the issue on cross-appeal, we find no error in the trial court's decision to grant a downward departure from appellant's sentencing guidelines score on the authority of section 921.0016(4)(j), Florida Statutes (1997), which authorizes mitigation of a sentence on the ground that the "offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse." The record here contains evidentiary support for all three circumstances under subsection (j). In affirming the trial court's decision to impose a departure from the guidelines, we certify conflict with the decision of the Fourth District Court of Appeal in State v. Warner,
Vehicular Homicide Conviction
Finally, appellant argues that it was error for the trial court to enter judgment on both the DUI manslaughter count and the vehicular homicide count. The Supreme Court of Florida has held that a DUI manslaughter conviction and a vehicular homicide conviction cannot be simultaneously entered when there has been only a single death. See State v. Chapman,
AFFIRMED in part, REVERSED in part, and REMANDED; conflict and question certified.
BOOTH and MINER, JJ., CONCUR and VAN NORTWICK, J., CONCURS AND DISSENTS WITH WRITTEN OPINION.
VAN NORTWICK, J., concurring in part and dissenting in part.
Because the erroneous presumption of impairment instruction here involved the central disputed issue at trial and an essential element of the crime of DUI manslaughter, I conclude that the error was fundamental. Further, because Miles was decided while this case was pending on appeal, any challenge to the jury instruction at trial would have been pointless. Accordingly, I respectfully dissent from the holding of the majority as to the issue of fundamental error. I concur in all other points on appeal and in the certified question.
With respect to jury instructions, the standard for determining fundamental error has been variously described. In Stewart v. State,
In the case before us, the instructions at issue did not relate to a defense raised by the appellant, compare Sochor,
In addition, because Miles was decided while this case was pending on appeal, the failure of appellant to object to the presumption instruction here should not preclude him from raising the instruction error on appeal. Objections are required to place the trial court on notice that error may have been committed to provide the court an opportunity to correct any error. See Castor v. State,
Because the presumption of impairment instruction declared invalid in Miles involved directions to the jury on resolving disputed issues of fact that must be considered by the jury in assessing the evidence material to a central and essential element of the crime here charged, I would hold that the erroneous jury instruction constituted fundamental error which need not have been preserved by an objection. See Sochor,
NOTES
Notes
[1] At the time Bender was decided, the implied consent law as well as the impairment presumptions, were set forth in chapter 322, Florida Statutes. They have since been moved to chapter 316.
[2] At the close of the sentencing hearing, the following colloquy occurred:
DEFENSE COUNSEL: Your Honor, what exactly was done with the vehicular homicide charge?
THE COURT: That's a good question, Mr. Stone. According to the Supreme Court it just is there.
PROSECUTOR: I mean, the State is not in a position to do anything obviously pending the appeal, so
THE COURT: If I read that case correctly it says that he can neither be sentenced nor adjudicated.
DEFENSE COUNSEL: Right. So the adjudication is just strictly to DUI manslaughter?
THE COURT: That's the only offense that I have adjudicated him guilty of.
[3] Of course, a valid presumption instruction does not impermissibly shift the burden of proof. See Register v. State,
[4] Under federal law, a failure to object does not necessarily preclude appellate review of an issue involving a change in the law during pendency of the appeal. See U.S. v. Novey,
Ordinarily, defendant's failure to object would preclude review of the issue on appeal. An exception to the rule precluding review exists where an intervening Supreme Court decision changes the law while an appeal is pending. This exception is a corollary to the principle that an appellate court should apply the law in existence at the time of appeal.
Id. (citations omitted); see also U.S. v. Washington,
[5] In a harmless error analysis, "[t]he focus is on the effect of the error on the trier of fact." State v. DiGuilio,