Opinion
Case No. 2D05-4123.
Opinion filed April 13, 2007.
Appeal from the Circuit Court for Hillsborough County; Ronald N. Ficarrotta, Judge.
Brooke V. Elvington of Escobar, Ramirez Associates, P.A., Tampa, for Appellant.
Bill McCollum, Attorney General, Tallahassee, and Marilyn Muir Beccue, Assistant Attorney General, Tampa, for Appellee.
Darion Conner appeals his convictions for driving under the influence (DUI) manslaughter and vehicular homicide and sentence for DUI manslaughter. He claims the trial court committed two reversible errors: (1) permitting opinion testimony from law enforcement that Conner was guilty of causing the victim's demise and (2) admitting prejudicial and irrelevant photographic evidence. Although we find merit in both issues, we reverse and remand for a new trial on the basis of harmful error concerning the first issue.
At sentencing, the trial judge merged count two into count one and sentenced Conner to fifteen years on count one (DUI manslaughter).
Conner was charged in a two-count information with DUI manslaughter in violation of section 316.193(3), Florida Statutes (2003), and vehicular homicide in violation of section 782.071(1)(a), Florida Statutes (2003), as a result of an accident involving his car and a bicycle. At trial, it was disputed as to exactly where the contact between the car and the bicycle occurred. The State argued that the impact occurred in the bicycle lane; the defense argued that the bicycle swerved out of the bicycle lane and into the traffic lane. The first issue — the improperly admitted opinion on the disputed issue of causation — arose when state witness Deputy Hyder answered, "Yes, ma'am" when asked the following question on direct: "And is it your opinion that [Conner's] impairment contributed to the crash and to the death of [the victim] in this case?" The court overruled defense's objection that the question called for a legal conclusion. This was error for two interrelated reasons.
First, in the context of this DUI manslaughter and vehicular homicide trial, as phrased, this question necessarily called for an opinion that Conner was guilty of negligently or recklessly operating his motor vehicle, and not just that he was impaired and contributed to the accident and death of the victim. Asking for an opinion that a defendant is guilty of each element of a crime charged equates to an opinion of guilty of the crime itself.
Section 316.193(3) provides in pertinent part:
(3) Any person:
(a) Who is in violation of subsection (1) [driving under the influence];
(b) Who operates a vehicle; and
(c) Who, by reason of such operation, causes or contributes to causing:
. . . .
3. The death of any human being commits DUI manslaughter, . . . .
(Emphasis added.)
Section 782.071 provides in pertinent part:
Vehicular homicide. — "Vehicular homicide" is the killing of a human being, . . . caused by the operation of a motor vehicle by another in a reckless manner likely to cause the death of, or great bodily harm to, another.
(Emphasis added.)
Second, an examination of the above statutes also reveals that the unqualified compound question posed to Deputy Hyder not only called for an improper opinion but also indiscriminately mixed the elements of the two crimes charged. For example, in the DUI manslaughter statute there is no legal requirement that the driver's impairment contributes to or causes the injury or death, only that there be impairment — physical or unlawful blood alcohol — while a motor vehicle is operated. On the other hand, vehicular homicide requires an element of recklessness between the motor vehicle operation and the injury or death — impairment is not a factor. Both statutes contain causation elements to some degree linking the operation of a motor vehicle and injury or death. Thus, while Deputy Hyder's opinion may have been a correct statement of the applicable law to the extent his opinion related to DUI manslaughter, which implies causation from a defendant's impairment and motor vehicle operation, this is certainly not an accurate statement of the law as it relates to vehicular homicide. The objectionable question did not make any distinctions. Moreover, for the reasons noted below, this was a question for the jury to decide and not for the witness to presume.
See Hubbard v. State, 751 So. 2d 552 (Fla. 1999), for an informative and thorough historical discussion on this topic.
We parenthetically note that both sides argued the "caused or contributed to the cause of the death of (victim)" language literally, as found in the DUI manslaughter jury instruction, and no special jury instruction was sought or given on this concept. Fla. Std. Jury Instr. (Crim.) 7.8.
"Although a trial court's decision on evidence admissibility is subject to the abuse of discretion standard of review, that discretion is limited by the rules of evidence." Michael v. State, 884 So. 2d 83, 84 (Fla. 2d DCA 2004) (citing Sexton v. State, 697 So. 2d 833 (Fla. 1997)). Florida law on evidence prohibits opinion testimony as to the guilt or innocence of the accused. See Martinez v. State, 761 So. 2d 1074, 1079 (Fla. 2000); Thomas v. State, 837 So. 2d 443, 446 (Fla. 4th DCA 2002). This is true notwithstanding the State's assertion that section 90.703, Florida Statutes (2003), permits opinion testimony on an ultimate issue of fact: "Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it includes an ultimate issue to be decided by the trier of fact." (Emphasis added.) An opinion on guilt or innocence is excluded as it does not fall under the penumbra of "otherwise admissible" — it invades the province of the jury. Martinez, 761 So. 2d at 1079. " `[S]uch testimony is precluded on the authority of section 90.403' because `its probative value is substantially outweighed by unfair prejudice to the defendant.' " Fla. Institute for Neurologic Rehab., Inc. v. Marshall, 943 So. 2d 976 (Fla. 2d DCA 2006) (quoting Martinez, 761 So. 2d at 1079).
In Martinez, the supreme court reversed a first-degree murder conviction because the trial court improperly permitted testimony from the lead investigator indicating his belief that the defendant committed the crime — "There was no doubt that he did it." Martinez, 761 So. 2d at 1079. Quoting Glendening v. State, 536 So. 2d 212 (Fla. 1988), the court stated that "[a]ny probative value such an opinion may possess is clearly outweighed by the danger of unfair prejudice."Martinez, 761 So. 2d at 1079. Like the investigator in Martinez, Deputy Hyder, who was neither a crash investigator nor reconstruction expert, was permitted to give an opinion on causation — a disputed issue at trial.
In Sosa-Valdez v. State, 785 So. 2d 633, 635 (Fla. 3d DCA 2001), the court reversed the conviction where the law enforcement opinion testimony refuted the entire theory of defense and as such, amounted to an opinion of the defendant's guilt. "The fact that Detective Hladky did not directly state, `I think the defendants are guilty,' is a distinction without a difference. . . . [T]he officer was in effect saying that the defendants were guilty." 785 So. 2d at 635. But cf. Hamilton v. State, 696 So. 2d 914 (Fla. 2d DCA 1997) (holding that opinion testimony as to the factual question of the defendant's direction of travel at the time of the accident, based upon physical evidence, did not amount to an opinion as to the defendant's guilt). Here, although Deputy Hyder was qualified to give his opinion on impairment, he crossed the line when he was permitted to opine carte blanche that Conner's "impairment contributed to the crash and death" of the victim; i.e., "in effect" Conner was guilty of both crimes charged regardless of whatever the legal elements were.
[T]here is an increased danger of prejudice when the investigating officer is allowed to express his or her opinion about the defendant's guilt. In this situation, an opinion about the ultimate issue of guilt could convey the impression that evidence not presented to the jury, but known to the investigating officer, supports the charges against the defendant.
Martinez, 761 So. 2d at 1080 (emphasis added) (citing United States v. Young, 470 U.S. 1, 18-19 (1985)).
The State nevertheless argues that Deputy Hyder, by training and experience, was qualified to give an opinion on causation. Our review of the record indicates that his training and experience was in the area of DUI/manslaughter, drug recognition, and horizontal gaze nystagmus (HGN) as it relates to drug and alcohol intoxication and DUI. Indeed, his trial testimony focused exclusively on Conner's impairment — on the results of the field sobriety and HGN tests administered — and not on any evidence establishing a basis for causation. Thus, even if qualified by training and experience, there was no evidence established at trial connecting Deputy Hyder's opinion on causation with his expertise. Moreover, the confusing nature of the question and unqualified answer cannot be cured by the witness's training and experience.
Thus, not only was the answer an improper opinion, but because of the compound confusing nature of the question, it also misled the jury on the fundamental differences in the elements of the crimes with which Conner was charged. Under these circumstances, it was an abuse of discretion for the trial court to deny Conner's objection. We now address why this error was not harmless.
The error was not harmless because: (1) there was evidence presented establishing an unlawful blood alcohol level in the victim, (2) there were no independent eyewitnesses to the impact, and (3) at the accident scene, Conner claimed that another vehicle's improper driving caused him to swerve into the victim's bicycle. Conner's defenses to the charges against him were based upon the dual theory of the victim's own intoxication and the negligent operation of another vehicle, or a combination of the two factors, causing the crash; i.e., Conner essentially contended, if impaired, he was "faultless." The prejudice of the improper opinion testimony is further underscored by the compound, indiscriminate nature of the question which elicited it, especially considering that causation was a disputed issue at trial. Thus, the error in admitting this testimony completely undermined the defense and could not be harmless. Reversal is required. See Martinez, 761 So. 2d at 1080-81.
We now briefly address the second issue on appeal as it may otherwise reoccur on remand. Over defense objections on relevancy and prejudice, the State introduced a photograph depicting the victim's body, claiming the photograph was relevant to show that the impact occurred in the bicycle lane. The trial court ruled the photograph was admissible because it was not "overly gruesome" but did not otherwise address its relevancy.
"The test for admissibility of photographic evidence is relevancy rather than necessity." Pope v. State, 679 So. 2d 710, 713 (Fla. 1996). The State offered no response below, or on appeal, to demonstrate how the photograph was relevant to where the impact occurred and instead argued that it was relevant to show where the body was found — an undisputed fact. "To be relevant, a photo of a deceased victim must be probative of an issue that is in dispute." Almeida v. State, 748 So. 2d 922, 929 (Fla. 1999). Our review of the record confirms that there was no evidence connecting where the body was found with where the impact was alleged to have occurred. Thus, it was error to admit the photograph under these circumstances because it was clearly irrelevant to a fact in dispute. Because the photograph does not survive relevancy, the first test of admissibility, we need not address whether it was "overly gruesome." We also decline to engage in a harmless error analysis on the photograph's erroneous admission because the first issue on appeal involves harmful error necessitating reversal. It would also be speculative, if not advisory in nature, for us to now opine on the photograph's potential admissibility if relevancy is somehow established on remand.
Convictions reversed, sentence vacated, and remanded for a new trial.
SALCINES, J., Concurs.
NORTHCUTT, J., Concurs with opinion.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.
I agree that this case must be reversed and remanded for a new trial, but I would do so on the basis of the erroneously admitted photograph. As the majority concludes, the photograph at issue — which depicted the victim's body splayed across the bicycle lane, lying on its stomach in a pool of blood — had no bearing on the location of the collision. The homicide investigator who took the photograph testified that the victim's body was propelled more than 200 feet after the impact. Moreover, the investigator could not say whether the body had been moved or repositioned by the paramedics who attended the victim before the investigator approached the body and photographed it. (In fact, one of the paramedics testified that when he first arrived, the victim was lying on his back.) Therefore, the photograph simply was not relevant evidence. But even if it had been even minimally relevant, and even crediting the trial court's view that, as these things go, the photograph was not particularly gruesome, its prejudicial effect far outweighed its probative value. The photograph's only contribution to the proceedings would have been to invoke the juror's sympathies for the victim.
On the question not reached by the majority, I conclude that the erroneous admission of this photograph was not harmless. The test for harmless error requires the State to demonstrate beyond a reasonable doubt that the error complained of did not contribute to the verdict.State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986). As the DiGuilio court observed:
The test is not a sufficiency-of-the-evidence, a correct result, a not clearly wrong, a substantial evidence, a more probable than not, a clear and convincing, or even an overwhelming evidence test. Harmless error is not a device for the appellate court to substitute itself for the trier-of-fact by simply weighing the evidence. The focus is on the effect of the error on the trier-of-fact. The question is whether there is a reasonable possibility that the error affected the verdict. . . . If the appellate court cannot say beyond a reasonable doubt that the error did not affect the verdict, then the error is by definition harmful.
Id. at 1139.
In this case, the State contended that Conner, driving while impaired by alcohol, swerved into the bicycle lane and struck the victim. The defense maintained that the victim died in an unavoidable accident after swerving from the bicycle lane into the path of Conner's vehicle. Neither theory was clearly proved or disproved by the evidence. The accident happened in the dark of night, and all of the eyewitnesses observed the accident from a distance. While the witnesses attested to Conner's impaired driving before the collision and saw his vehicle swerve across the median before coming to rest, none of them saw the collision itself. At the scene just after the accident, Conner told a sheriff's deputy that he had swerved to avoid a vehicle in his path. At the time of the accident, the victim was inebriated, with a blood alcohol level of .21.
Under the circumstances, it cannot be concluded beyond a reasonable doubt that placing the offending photograph of the victim's body before the jurors did not affect their verdict. Therefore, the error was not harmless, and Conner would be entitled to a new trial on its account.