Opinion
Case No. 2D08-4252.
Opinion filed April 14, 2011.
Appeal from the Circuit Court for Sarasota County; Deno G. Economou, Judge.
James Marion Moorman, Public Defender, and John C. Fisher, Assistant Public Defender, Bartow, for Appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appellee.
STAFF ATTY INTRODUCTION
A jury convicted Noe Juarez of DUI manslaughter, a lesser included offense of the charged crime of DUI manslaughter without rendering aid or information, and of DUI with serious bodily injury. After trial he pleaded guilty to two other charges that had been severed, but resulted from the same accident: DWLS with serious bodily injury and giving false information to a LEO. All charges stemmed from a late night car crash in which the driver of the other vehicle was killed and his wife, a passenger, suffered very serious injuries. Juarez seeks a new trial contending that some of his statements to law enforcement should have been suppressed, that the court should have prevented the jurors from visiting a "victim's memorial" erected outside the courthouse, and that the court erred in failing to give a requested lesser included instruction to the manslaughter charge.
JURISDICTION
Fla.R.App.P. 140(b)(1)(A)
Judgment rendered 8-05-08 (R 213), sentence rendered 8-14-08 (R 221-24); NOA filed 8-21-08
ATTACHMENTS
None.
2DCA HISTORY
The long delay in this case occurred because the court reporter took over a year to provide the transcripts.
RELATED CASES
None.
ISSUES ON APPEAL
I. THE TRIAL COURT ERRED BY DENYING THE MOTIONS TO SUPPRESS JUAREZ'S STATEMENT. (pg. 25, 28)
II. THE TRIAL COURT ERRED BY DENYING THE DEFENSE MOTION TO PREVENT JUROR CONTACT WITH AN INFLAMMATORY INFLUENCE. (pg. 34, 36)
III. THE TRIAL COURT ERRED BY DENYING THE REQUEST FOR THE JURY TO BE INSTRUCTED ON A LESSER-INCLUDED OFFENSE. (pg. 38, 40)
STATEMENT OF THE CASE AND FACTS BY AA, NOE JUAREZ
On May 16, 2007, the State attorney in Sarasota County filed an information charging Appellant Noe Juarez with: (1) DUI manslaughter without rendering aid or information, a first-degree felony in violation of section 316.193(3)(c)3b, Florida Statutes (2005); (2) driving under the influence with serious bodily injury, a third-degree felony in violation of section 316.193(3)(c)2, Florida Statutes (2005); (3) driving while drivers license suspended and causing great bodily injury or death, a third-degree felony in violation of section 322.34(6)(b), Florida Statutes (2005); and (4) giving false information to a law enforcement officer, a first degree misdemeanor in violation of section 901.36(1), Florida Statutes (2005) (v1/R38-40).
On February 25, 2008, the defense filed a motion in limine, seeking to exclude: evidence that the police believed a child had been ejected from the car; and evidence and argument about the victims being parents of young children (v1/R66-67). Such evidence and argument is irrelevant and highly prejudicial and any relevance is outweighed by prejudice (v1/R66).
On February 25, 2008, the defense filed a motion to suppress statements made by Mr. Juarez on April 20, 2007 (v1/R68-72). The statements were obtained in violation of the Fifth and Fourteenth Amendment to the United States Constitution and Article I, Sections 9 and 16 of the Florida Constitution in that: the statements were not knowingly and voluntarily made; the statements were made prior to receiving Miranda warnings; Mr. Juarez did not knowingly and voluntarily waive hisMiranda rights; officers' "question first" tactics renderedMiranda warnings meaningless; the questioning was not recorded despite the availability of the means to do so; the statements are not reliable; Mr. Juarez was questioned without an interpreter when it was obvious he spoke little or no English; and statements compelled pursuant to section 316.062, Florida Statutes (2005) must not be used at trial (v1/R71).
On February 25, 2008, the defense filed a motion to suppress blood taken from Mr. Juarez (v1/R74-77). The blood was obtained in violation of the Fourth, Fifth, Sixth, Ninth, and Fourteenth Amendment to the United States Constitution, Article I, Sections 9, 12, 16, 21, and 23 of the Florida Constitution, and section 316.1932, Florida Statutes (2005) (v1/R76).
On February 25, 2008 and May 13, 2008, the defense filed motions to sever offenses (v1/R78-80, 116-118).
On April 3, 2008, the defense filed a motion to suppress physical evidence and statements obtained in violation Article 36 of the Vienna Convention on Consular Relations where Mr. Juarez is a citizen of Mexico (v1/R87-91).
A motion hearing was held before Judge Silvertooth on April 15, 2008 (v1/R92, 93-94; s1/R342-435), and the hearing was continued on May 7, 2008 (v1/R104-105, 106, 107, 108; s1/436-476).
Florida Highway Patrol Trooper George Yock testified that after 1:00 a.m. on April 20, 2007, he was dispatched to the scene of the crash (s1/R349). Near the tree line, there was an overturned car with a body under it and damage to its rear (s1/R350). There were grooves from tires in the grass and debris on the highway (s1/R350-351). North Port Police Officers said an unoccupied vehicle a quarter mile further down the road may have been involved in the crash (s1/R351-352).
Trooper Yock testified he went to the other car, a Lincoln that was parked by the tree line (s1/R352, 366). Trooper Yock and a North Port Police Officers determined there was no one in the car (s1/R352, 366-367). Trooper Yock walked a 10 or 15 feet along the tree line, shining a flashlight into the woods, unsuccessfully looking for occupants of the car (s1/R352-353). He then heard a sound in the woods and found Noe Juarez in a fetal position behind a tree in a small opening into the woods, 75 to 100 feet from the car (s1/R353-355).
Trooper Yock testified he drew his gun and ordered Mr. Juarez to show his hands and come out of the woods (s1/R354, 361). Mr. Juarez complied (s1/R354, 361). Trooper Yock holstered his gun, patted Mr. Juarez down, and spoke to him in English with short simple words, with gestures, and with the few Spanish words the officer knew (s1/R354-355, 360, 362-364, 373). Mr. Juarez responded in English and gave his name, and the officer found an international driver's license and a Mexican Consular card with his name in his wallet (s1/R355, 360, 363-365). It was clear to Trooper Yock that Mr. Juarez was a Spanish speaking person, but he believed Mr. Juarez comprehended English (s1/R360, 384-385). He smelled a strong odor of alcohol on Mr. Juarez and saw his eyes were bloodshot and watery (s1/R356, 359, 361-362).
Trooper Yock testified Mr. Juarez appeared to be scared and unsure about what was going on (s1/R356). Mr. Juarez said he dropped his wife or his familia off at work in Palmetto, he was driving the car to his home in Fort Myers, and there had been no other person in the car (s1/R357-358). He said he had been traveling in the outside lane and when he saw lights, he swerved to miss the lights (s1/R357-358). He denied drinking (s1/R360-361). Trooper Yock had no recording equipment but he knew some North Port Police vehicles had audio and video recording devices (s1/R367-368). Trooper Yock denied using gestures to compel responses from Mr. Juarez (s1/R373).
Trooper Yock testified that based on the crash between two moving vehicles at 1:00 a.m. when traffic was light, the rear-ending of the car, the hiding in the woods, the strong odor of alcohol, and the bloodshot, watery eyes, he ordered blood drawn by a paramedic (s1/R359-361, 384). Mr. Juarez was strapped to a backboard and taken to a hospital by an ambulance, and Trooper Yock followed (s1/R361, 365). Trooper Yock did not tell Mr. Juarez that he was under arrest (s1/R373). He questioned Mr. Juarez at the emergency room, largely seeking information to confirm his identity on a computer database (s1/R365-366, 374). Trooper Yock conducted a HGN test on Mr. Juarez while he was on a backboard and saw all six clues (s1/383). Trooper Yock made no effort to contact the Mexican Consulate (s1/R365). He reported Mr. Juarez's statements by phone to Corporal Stahley and Sergeant Head (s1/R369, 371).
Trooper Yock testified he drove Mr. Juarez back to the crash scene, then to the Toledo Blade overpass (s1/R370, 378-379). Corporal Stahley read Mr. Juarez his Miranda rights in English, using simple English and gestures (s1/R370-372, 376, 379). Trooper Yock believed Mr. Juarez understood the warning (s1/R376-377). Trooper Yock had Miranda waiver forms in English, but he did not have Mr. Juarez sign a Miranda waiver and did not know whether Corporal Stahley did so (s1/R380). Trooper Yock did not recall whether Corporal Stahley questioned Mr. Juarez or whether he used a recording device (s1/R370, 372, 376, 379-380). The officers conducted a HGN test on Mr. Juarez, but conducted no other of several field sobriety exercises because based on the results of the HGN Trooper Yock believed his blood alcohol level was below .08 (s1/R372, 374-376, 379, 381-383). Mr. Juarez comprehended the instructions for the HGN test, given in English and with gestures, and he complied (s1/R375-377).
North Port Fire Rescue Paramedic Kristi Halvorsen testified she acted as secondary rescue at the April 2007 crash (s1/R388-389). The first unit on the scene dealt with the critical victims and she was directed to the second car (s1/R389). There was no one in the large light colored car, but there was blood on the car and its airbags were deployed (s1/R390-391, 407). She, her partner and two officers unsuccessfully looked for occupants of the car (s1/R391-393, 407). She went to the first car to help other paramedics, then returned to the second car upon being informed that the officers found a patient (s1/R391-394).
Paramedic Halvorsen testified she asked the victim if he was injured and took him to her ambulance for an assessment (s1/R394). The patient had a heavy accent and she had to sometimes explain when he did not initially understand her questions, but she was able to ask him questions in English and with gestures, and he was able to answer (s1/R394, 396-411, 416, 420-421). She had a limited knowledge of Spanish (s1/R395). She did not have an independent recollection of their entire conversation and relied on her report (s1/R395-403, 407-408, 418-419, 421-422). She did not include in her report whether she smelled alcohol on him (s1/R413-415). She drew blood from him (s1/R414, 416). His blood sugar level was normal (s1/R416).
Paramedic Halvorsen testified the patient indicated he had a small cut on his finger and a pain at the back of his head and he denied having other problems (s1/R394-402, 404, 408-411). He initially did not understand her question about numbness, but he understood her explanation that this was similar to one's arm falling asleep if one sleeps on it wrong (s1/R402, 406, 420). He said he did not understand her inquiry about why he left his car (s1/R404-405).
North Port Police Officer Ryan Curry testified all North Port Police patrol vehicles have video cameras (s1/R423-424). Newer equipment is digital and operates all of the time (s1/424). Older equipment that may be in the majority of patrol cars and is in Officer Curry's patrol car is activated by turning on the emergency lights or by manually turning it on (s1/424). Officer Curry has a microphone on his belt that is recorded by his car's equipment (s1/R425).
Officer Curry testified he responded to the accident on I-75 on April 20, 2007 (s1/425). He saw, approached, and looked in the cream-colored Lincoln (s1/R425-426). The car was damaged, there was blood inside, the car was still warm, and he believed the airbag was deployed (s1/R426-427). There was no one inside and he looked for the occupant (s1/R426). Subsequently, a Highway Patrol officer and an ambulance arrived and the officers found a person in the woods near the car (s1/426-429). The trooper ordered the man out of the woods and asked him if he was okay (s1/R429-432). The man was able to communicate in broken English, but it was not his first language (s1/R430-433). The officers walked him to the ambulance (s1/T431). The trooper did not ask Officer Curry to record anything (s1/R431).
On April 29, 2008, the defense filed a motion in limine to prevent juror contact with the Victims Monument (v1/R100-103) and on May 7, 2008 filed evidence pertaining to the motion (v3/R255-266). The monument is within several feet of the steps to the courthouse and is a regular gathering place for jurors and prospective jurors, especially smokers (v1/R100; v3/R262).
The motion stated the Monument consists of a magnolia tree and a large stone with a metal plaque, and the area surrounding it is paved with inscribed bricks, and three benches, one with an ashtray, facing the Monument (v1/R100-101, v3/R256-266). The inscription on the plaque states: "Justice will only be achieved when those who are not injured by crime feel as indignant as those who are." — Solomon (v1/R100; v3/R265-266). [FN 1: Undersigned counsel unsuccessfully searched the internet for the source of this quotation. It is on many sites dedicated to victims and law enforcement, and it is attributed on many sites to Solomon, but without further information as to its source. Undersigned counsel's attempts to locate the quotation in the Bible were unsuccessful. ] Most of the bricks bear messages from friends or family of deceased persons and many of the inscribed bricks bear the names of victims in highly publicized local murder trials (v1/R101; v3/R256-260, 263-264).
The motion asserted Mr. Juarez will not receive a fair trial if jurors and prospective jurors are allowed to come in contact with the Monument (v1/R101). The placement and appearance of the monument creates an impression that the message on the plaque has the court's approval (v1/R101). The messages on bricks are likely to inflame the passions of jurors and result in a verdict not based on evidence and law (v1/R101-102). A denial of the motion would violate the right to a fair trial guaranteed by the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Article I, Sections 9 and 16 of the Florida Constitution, and would deny the right of access to courts guaranteed by Article I, Sections 21 of the Florida Constitution (v1/R102).
The motion to suppress hearing was continued on May 7, 2008 (v1/R104-105, 106, 107, 108; s1/436-476). Florida Highway Patrol Corporal David Stahley testified he was dispatched to investigate a motor vehicle fatality in April 2007 (s1/R439). He arrived at 2:10 or 2:11 a.m. (s1/R440). There were two damaged cars and a deceased victim at the scene (s1/R440). Corporal Stahley remained at the scene collecting evidence and investigating until Trooper Yock brought Mr. Juarez back from a hospital at 5:15 or 5:20 a.m. (s1/R440). The officers drove Mr. Juarez off the interstate at Toledo Blade (s1/R440, 454).
Corporal Stahley testified he advised Mr. Juarez of hisMiranda rights by reading a preprinted Florida Highway Patrol form (s1/R441-443). Mr. Juarez indicated he understood by nodding and saying yes, he agreed to speak with the corporal, and he did not ask for an attorney (s1/R442-444, 448). Corporal Stahley went through the rights again with an explanation and gestures to ensure he understood, and Mr. Juarez said "yes" (s1/443-444). He did not have Mr. Juarez sign a Miranda waiver form (s1/R454).
Corporal Stahley testified Mr. Juarez never said he did not understand English (s1/R444). Corporal Stahley believed Mr. Juarez understood everything that was said to him, he answered every question without difficulty, he was able to communicate well, and he spoke freely and voluntarily (s1/R444, 447-448). Corporal Stahley had much experience with Spanish-speaking persons and looked for someone to interpret when necessary (s1/R445-447). He did not believe an interpreter was needed in this case and none was available at 5:00 a.m. (s1/R447, 453). Corporal Stahley had a digital recorder, but he did not record the questioning (s1/R452-453).
Corporal Stahley testified Mr. Juarez said, with hand gestures, that he was driving his car when the other car came across and struck his car (s1/R445). Trooper Yock had earlier told Corporal Stahley that Mr. Juarez made a similar statement about the crash to him (s1/R456-459). Mr. Juarez had a Mexican Consulate card, but Corporal Stahley did not tell Mr. Juarez he had a right to contact the Mexican Consulate and he did not contact the Mexican Consulate about the arrest for Mr. Juarez (s1/449, 455-456). Trooper Yock took him to a booking facility at the South County Jail in Venice (s1/R454). When he was booked, AFIS showed he had been booked into La Belle under a different last name and birth date (s1/R449-450).
Noe Juarez testified he was 22 years old (s1/R461). He was born in Mexico, but he lived in the United States for 15 years, in California and Florida (s1/R461, 463-464). Although he knows some English words, he does not speak English and his family and friends primarily speak Spanish (s1/461, 464, 467, 470). He was not married (s1/R463). He worked in construction (s1/R471).
Mr. Juarez testified that on April 20, he had visited his son in a hospital (s1/R463). He sat on the edge of the woods because his side hurt (s1/469). He did not have an interpreter when he dealt with the police and a paramedic (s1/466). He did not remember a paramedic's questions, but apparently remembered her gesture for dizziness (s1/R464-465). He told the paramedic that his side hurt (s1/470). He gave a trooper his international driver's license and a Mexican Consulate card, and told him he did not have a Florida driver's license (s1/R466, 472). The trooper asked if he had a passport (s1/R472). He explained the accident to the trooper with gestures and pencil drawings (s1/R470). He showed the trooper his cut finger, but did not remember saying it was cut on a beer bottle (s1/472). When the trooper showed him pictures on a computer, he indicated that persons sometimes mistook him for another person by pointing to a photo of this other person and saying the English word "confused" (s1/468).
Mr. Juarez testified that when he was questioned by a Florida Highway Patrol Corporal, he did not understand everything the corporal said, including the explanation of rights, and he asked for an interpreter (s1/R461-462). He did not understand he had a right to an attorney that night and that he did not have to speak with the corporal (s1/R462). He was never told that night that he had a right to contact the Mexican Consulate, but if he had been told about this he would have contacted the Mexican Consulate (s1/R474).
On May 9, 2008, the trial court filed an order denying the motions to suppress (v1/R109-113). The trial court found that although Mr. Juarez was not fluent in English, he could understand English and answer questions sufficiently in English and his testimony regarding his lack of understanding Miranda warnings and his waiver of rights was not credible (v1/R110-111). The trial court found there was probable cause to support the blood draw (v1/R111). The trial court found that suppression of evidence is not a remedy for failure to advise the defendant of his consular rights (v1/R112). The trial court found Corporal Stahley's interrogation did not employ a method calculated to undermine theMiranda warning (v1/R112).
On May 13, 2008, the defense filed a motion in limine, seeking to exclude testimony of Trooper Yock about blood alcohol level based on horizontal gaze nystagmus (v1/R114-115).
A motion hearing was held before Judge Economou on May 16, 2008 (v1/R120-121; s1/R477-496). The State asserted it would proffer Trooper Yock's expertise as to HGN at trial and the trial court reserved ruling as to that (v1/R120; s1/479). The State agreed that specific blood alcohol level would not come in through HGN (s1/R479). The State also agreed that evidence of a handheld portable breath test would not be admitted (s1/R479).
The State and the trial court agreed to the defense motion for severance of counts three and four and to trial on counts one and two (v1/R120; s1/R478-481). The State moved to exclude evidence or argument about the failure of the victims to wear seat belts (s1/R484-485). The defense argued this was relevant (s1/R484). The State's motion was granted (v1/R120; s1/R485). The State moved to have the trial court instruct the jury that it was not to consider whether the victims wore seatbelts (s1/R486). Ruling was reserved (v1/R120; s1/R486). The State gave notice that if Mr. Juarez took the stand, it would impeach him with testimony from the suppression hearing (s1/R487-488).
A jury trial was held on May 19-22, 2008 before Judge Economou (v1/136-137, 138, 143, 144-145, 148-149, 174-175, 176-181; s2-6/T1-834). Jury selection proceedings occurred on May 19, 2008 (s2-3/T1-226). The State moved to prevent the defense from suggesting to the jury that the victims contributed to their injuries or death by not wearing seat belts (s2/T2). The State also requested a jury instruction that the victims' failure to wear seat belts and their failure to wear seat belts is not a defense to DUI manslaughter or DUI great bodily harm (s2/T2-3). The defense asserted the Ungers engaged in behavior that caused great bodily harm and death by not wearing seat belts (s2/T3). [ SAN : The FHP case report identifies the occupants of vehicle 2 as Thomas Unger, who sustained fatal injuries, and Tara Unger, who sustained critical, life threatening injuries and was flown to Bayfront Medical Center. (R 14)] The trial court granted the State's motion, but denied the State's request for a jury instruction (s2/T4, 7, 10). The defense sought to mention to the jury that air bags deployed in Mr. Juarez's car but there were no airbags in the Ungers' car (s2/T4-6). The motion was denied, but the defense could mention that airbags deployed in Mr. Juarez's car (s2/T6, 11). The trial court instructed the State to tell its witness that there will be no displays of emotion (s2/T12-13).
The defense objected with going forward with jury selection where the jury presumably was exposed to the Victim's Monument upon entering the front of the courthouse (s2/T16). The trial court denied the motion to prevent juror contact with the Victim's Memorial (v1/R139-140; s2/T15-16; s3/T207). A jury was selected (s2-3/T207-222). The defense renewed its motion regarding the monument (s3/T224).
The trial was held on May 20-22, 2008 (s3-7/T225-834). Counsel jointly stipulated that Thomas Unger was the person who died as the result of injuries suffered on April 20, 2007 (v1/R141-142, 149; s2/T14-15; s3/T231-232; s4/T467-470, 480-481).
During the testimony of Trooper Yock and Corporal Stahley, the defense objected to testimony about statements of Mr. Juarez based on the previously filed suppression motion, and it sought a continuing objection (s3/T328-329, 363; s4/T509, 518). The objection was overruled and a continuing objection was granted (s3/T329, 363; s4/T509, 518).
The jury had two questions of the Medical Examiner:
After examining the body of Mr. Thomas Unger — this is directed to, obviously Dr. Utley — could you tell if he was wearing a seat belt at the time of the crash which took his life.
If he was not, then, had Mr. Unger not been ejected from the vehicle, do you believe he would have still received life threatening injuries had he been wearing a seat belt.
(s5/T662). The State asked that the jury be instructed that this was not relevant or if Dr. Utley answered the question the jury should be instructed that failure to wear a seat belt is not a defense (s5/T662-664, 667-668). The defense asked the trial court to reconsider its previous ruling, asserted the jury was entitled to make a finding that Mr. Unger's driving and failure to wear a seat belt caused his death and objected to instructions that failure to wear a seat belt is not a defense (s5/T663, 669). The trial court ruled that Dr. Utley would proffer an answer, but the previous ruling of inadmissibility was continued (s5/T664).
In Dr. Utley's proffer, she testified law enforcement indicated the Utleys had not been wearing seat belts and they were ejected from the car, but she could not independently determine this (s5/T664-667). She relied on information from law enforcement about the manner of death — a traffic accident — but not as to cause of death (s5/T667). She could only speculate as to whether Mr. Utley would have not received life threatening injuries if he had worn a seat belt (s5/T665).
The trial court initially asserted it would instruct the jury that the questions were not permissible (s5/T665-666). The defense request that they be instructed that Dr. Utley could not answer the question was denied (s5/T666). The trial court subsequently ruled it would let Dr. Utley answer the question and instruct the jury that failure to wear a seat belt is not a defense, then again ruled it would strike the question and instruct the jury that the questions were not permissible (s5/T669-670). The jury was instructed that the questions were not permitted to be asked or answered (s5/T671).
The State rested (s5/T673). The defense moved for judgment of acquittal (s5/T673-675, 681-686). The motion was denied (v1/R149; s5/T684-686).
During the charge conference (s5/T693-724, 728-748), the defense request that the jury not be instructed on contributed to the cause of death as to DUI manslaughter because he was charged solely with causing death was granted (s5/T702-703). The defense sought instruction on DUI manslaughter serious bodily injury as to count one (s5/T693-695, 717, 728-729). The request was denied (s5/T696-697, 730). The State sought a special instruction that seat belts were not an issue and the trial court noted a can of worms had been opened as to the issue, but it denied the State's request (s5/T723-724, 740-742).
During deliberations, the jury had questions (s6/T812, 813). The jury requested the testimony of Dr. Utley and her testimony was read to the jury (v1/R122-135; s6/T812-813, 822). The jury had a question about seat belts (s6/T813-814, 916). The defense requested the jury be told the instructions are as complete as they are going to be (s6/T817). The trial court agreed with the State's request to give an instruction pursuant to Union v. State, 642 So. 2d 91 (Fla. 1st DCA 1994) (s6/T817-818). The trial court instructed the jury "In vehicular homicide cases, unless Thomas Unger's conduct was the sole proximate cause of the homicide, whether or not seat belts were worn is not a defense." (s6/T820). As to whether injuries/death would have occurred if seat belts had been worn, the jury was instructed to rely on their memory of the testimony (s6/T820).
The jury found Mr. Juarez guilty of the lesser included offense of DUI manslaughter on count one and guilty as charged on count two (v1/R144, 150; s6/T827-829).
On July 28, 2008, a sentencing proceeding was held before Judge Economou (v1/R193; v2/R201-202, 208-209; s1-2/497-555). Mr. Juarez was adjudicated guilty and sentenced to 15 years imprisonment on count one followed by 5 years imprisonment on count two, with credit for 466 days time served (v2/R201, 207, 208, 213, 221-224).
On August 1, 2008, Mr. Juarez entered a nolo contendere plea to counts three and four (v2/R240). [FN 2: Attempts to obtain a transcript of the August 1, 2008 plea/sentencing hearing were in vain. The Official Reporter certifies there are no notes of such proceedings from any court reporter (2s/r558). Trial counsel John Scotese indicated to undersigned counsel that there are no issues in the negotiated plea on the severed counts. Juarez indicated to undersigned counsel that he agreed that a transcript of the August 1, 2008 hearing was not necessary for his appeal. ] He was adjudicated guilty and sentenced to five years imprisonment on count three and time served on count four (v2/R230-235, 240).
The defense filed a motion to correct sentence, seeking to have the sentence on count three to run concurrent with the sentence on count one as was orally pronounced (v2/R237). An amended sentence indicates the sentence on count three was to run concurrent with the sentence on count one (v2/R247-250).
Timely notice of appeal was filed on August 21, 2008 (v1/R225).
STATEMENT OF THE FACTS
Tara Unger testified she was 22 years old (s3/T255). She lives in Port Charlotte and in April 2007 she lived in North Port (s3/T255, 260). She was widowed (s3/T255). She had two children — three-year-old Cody and seventeen-month old James (s3/T256). Her husband Thomas was twenty-two years old in April 2007 (s3/257).
Ms. Unger testified that on April 17, 2007, her husband Thomas was in New Orleans, driving a truck and delivering supplies (s3/T256). She spoke to Thomas by phone in the morning (s3/T256). She watched the children until noon, then searched for a job for several hours (s3/T256). She subsequently spoke to Thomas by phone because their son James was sick and she wanted him to come home (s3/T256, 260, 273, 274). He made arrangements to take a bus to Tampa and she arranged to pick him up in Tampa (s3/T257).
Ms. Unger testified that at approximately 10:00 p.m. she drove to Tampa in her 2002 maroon Saturn (s3/T257, 274-275). The headlights, taillights and brake lights on the car were working (s3/T258-259). She arrived in Tampa at approximately 12:15 a.m. (s3/T259). They loaded Thomas's suitcase in the trunk, then Thomas began driving to Port Charlotte to pick up her son James at her father's house (s3/T259-261, 273). Cody was at her home with her mother-in-law (s3/260). Neither she nor Thomas drank any alcohol or took any drugs (s3/T260-261). They talked during the trip and Ms. Unger did not sleep, but she relaxed with her seat reclined (s3/T260-261). Thomas drove because she was tired (s3/T275).
Ms. Unger testified that as they approached the North Port exits, Thomas screamed, then she looked in the mirror and saw a car quickly approaching (s3/T262-263). The car hit the back of their car with a great impact (s3/T263). Her face was smashed by the dashboard or the window, breaking bones in her face, and she was thrown out of the window (s3/T263, 275-276). There was total chaos and a lot of crashing and banging (s3/T263). She found herself in the woods in darkness (s3/264). She was in extreme pain, she was choking on blood, and she could not move her arms or legs (s3/T264-266). She screamed (s3/T264). She did not lose consciousness (s3/T264). She heard voices (s3/T264). After what seemed like a long time, paramedics found her (s3/T264-265). She could not answer their questions because she was choking on blood (s3/T265-266). Paramedics cleaned her wounds, prepared her for surgery, and administered morphine during a helicopter flight to a hospital (s3/T266).
Ms. Unger testified that she did not remember arriving at the hospital due to the morphine (s3/T266). She was hospitalized for six weeks (s3/T266). She believed she had a concussion (s3/T276). She was put in a drug induced coma for a while (s3/T276). She had some memory loss about the crash (s3/T276).
Ms. Unger testified that her lower left leg was amputated and she was fitted with a prosthesis (s3/T267). The prosthesis caused her much pain (s3/T267). She needed crutches to walk (s3/T268). A large gash of her right leg was stapled and the nearly severed Achilles tendon was repaired (s3/T268). A badly broken arm was repaired with a plate and screws (s3/T268). She received a tracheotomy (s3/T269). She had a feeding tube and a tube to keep her lungs from collapsing (s3/T269). Two vertebrae and her tail bone were fractured (s3/T269). Bones in her face were shattered and she lost eight teeth (s3/T269). Teeth and bone fragments had to be removed from her throat (s3/T270). Her nose was broken (s3/T270). Her chin bone was replaced with a metal plate (s3/T270). Her right eye socket had to be reconstructed with a metal plate (s3/T270).
Ms. Unger testified that she had emotional problems since the crash (s3/T270-271). She needed further bone graft surgery to her upper jaw, using bone from her hip (s3/T272). She also needed further surgery to shave bone spurs on her amputated leg and her arm (s3/T272). She was to receive a new prosthesis in the summer (s3/T272).
Ms. Unger testified that she made no statement to the police, but months after the crash she gave a statement at the State Attorney's Office (s3/T275, 277-278). She now remembered the accident and testified accurately about it (s3/T277-278).
North Port Police Officer Karl Kindervater testified he was the first officer on the scene of the crash, arriving at 1:24 a.m. (s3/T279). A black man and woman were by a dark-colored vehicle by the side of the road (s3/T280, 288). The woman was talking on a cell phone (s3/T280). He had video and audio recording equipment operating in his car and the recording equipment would have captured the persons and their license plate, but he did not know where the tape was (s3/T289-290, 292-299). Another dark-colored vehicle was upside down near a wooded area and a white man was pinned under it (s3/T280-282, 287-288). The vehicle was smoking (s3/T288). Another vehicle was approximately a half mile down the road and skid marks indicated it had gone off the road (s3/T280, 291-292).
Officer Kindervater testified that the woman yelled at the officer to go to a woman in the woods (s3/T280). North Port Police Officers Curry, Sovenok, Turner, and Head, and State Trooper Yock arrived (s3/T282-283, 290, 292). Officer Kindervater went toward voices he heard in the woods, while other officers checked on the man under the car (s3/T281-283). Approximately twenty or thirty yards into the woods he found a white woman (s3/T283). She was screaming and she had extensive injuries to her face and chest and her left leg was apparently amputated (s3/T283-286). She appeared to be going into shock (s3/T283-284). Paramedics were en route to the scene (s3/T284). Officer Curry investigated the car down the road (s3/T291).
Florida Highway Patrol Trooper George Yock testified that shortly after 1:00 a.m. he was dispatched to the scene of the crash and he arrived at approximately 1:42 a.m. (s3/T317, 361). Several North Port Police Officers, EMS, and rescue were on the scene (s3/T317, 371). He parked on the southbound emergency lane, near the first vehicle involved in the crash, an overturned red Saturn located near the tree line (s3/T319-321, 371). He examined the scene (s3/T319-320). There were marks indicating where the Saturn left the road including gouge marks in the grass (s3/T320). There was debris on the road (s3/T320). The rear of the Saturn was crushed, it had turned over a few times, and it hit a tree (s3/T321). It appeared that the car had been rear-ended (s3/T320-321). Trooper Yock knew there was a death in the crash and serious injury to another person (s3/T331-332).
Trooper Yock testified that North Port Police Officers directed him to a second unoccupied vehicle approximately quarter mile down the road from the Saturn that was possibly involved in the crash (s3/T319, 321-323, 326, 371). The trooper and a North Port Police Officer drove their cars with their sirens off and parked near the second car, while other officers and their cars remained near the Saturn (s3/T322, 324, 374). The second car had significant damage to the front end and there was red transfer paint were it was crushed (s3/T322, 374). The doors were closed (s3/T323). He later learned that the airbags were deployed (s3/T323, 378-379). No windows were broken (s3/T323).
Trooper Yock testified that he and the North Port Police Officer walked along the tree line, looking for the driver, but did not walk far, only 20 to 30 feet from the front of the car (s3/T323-324, 372). A K-9 unit was en route to search with a dog (s3/T323-324, 371-372). While they waited for the K-9 unit and a Bay Flight medical helicopter circled, Trooper Yock heard the sounds of someone walking in the woods (s3/T324, 374-5). Trooper Yock and the North Port Police Officer walked 75 to 100 feet from the car and 50 feet from the emergency lane, to where a trail entered the woods (s3/T324-326). Trooper Yock shined his flashlight and saw a man in a fetal position and wrapped around the base of a small tree, approximately five feet into the woods (s3/T325-327). Trooper Yock had not called out or made verbal commands while searching for the driver (s3/T362).
Trooper Yock testified that he drew his gun and ordered the man to come out of the woods with his hands up (s3/T325, 327, 380). The man, identified in court as Noe Juarez, complied (s3/T325, 327). Trooper Yock holstered his gun, and asked Mr. Juarez if he had any weapons (s3/T327-328), Mr. Juarez said no, the trooper and did a pat-down search of Mr. Juarez (s3/T328). Mr. Juarez had a bleeding cut on his left index finger and there was blood on shirt and pants (s3/T328, 330, 371). Trooper Yock asked whether there were other persons in the car and Mr. Juarez said no (s3/T339). Trooper Yock asked whether he had been driving and Mr. Juarez said yes (s3/T339). Trooper Yock asked his name, then took his wallet from his pocket and examined his identification (s3/T330). It had the same name as he gave (s3/T330). Mr. Juarez was Spanish speaking and spoke broken English (s3/T380). Trooper Yock did not speak Spanish, but used gestures and some Spanish words while questioning him (s3/381).
Trooper Yock testified that he asked Mr. Juarez whether he was injured (s3/T330). He pointed to a small laceration on his head and he later said he cut his finger on a beer bottle (s3/T330, 371). Trooper Yock marked the area where he found Mr. Juarez with a beer bottle he picked up from the ground that was otherwise unrelated to this case (s3/T377-378). Trooper Yock had the North Port Police Officer call for an ambulance (s3/T330). While waiting for the ambulance, Trooper Yock questioned Mr. Juarez about the crash (s3/T331). Mr. Juarez said he dropped his wife or his "familia" off at work in Palmetto and he was driving to Fort Myers (s3/T331, 380-381). He denied drinking that night (s3/T331). The questioning of Mr. Juarez was not recorded (s4/T385, 388). Trooper Yock had worked with the North Port Police, but he denied knowing that all of their cars were equipped with recording devices and denied that he had been given recording equipment by FHP (s4/T384-385, 388-389, 391).
Trooper Yock testified that Paramedic Kristi Halvorsen drew blood from Mr. Juarez (s3/T344; s4/T387). The blood was in sealed tubes (s3/T344). Trooper Yock later placed the blood in the evidence locker at the Venice FHP station (s3/T345-346). Trooper Yock spoke to Sergeant Head at the scene, then he went to the hospital where Mr. Juarez was taken (s3/T346, 379). At approximately 2:30 or 2:45 a.m. he administered a horizontal gaze nystagmus exercise with his finger while Mr. Juarez was strapped was staring at the ceiling (s3/T351-352, 367-368). He saw three indicators of impairment in each eye (s3/T353). Unequal pupil size may be a sign of head injury, but his pupils were of equal size (s3/T352-353). No toxicology testing was done at the hospital (s3/T369; s4/T387).
Trooper Yock testified that at approximately 7:00 a.m. he returned to the scene of the crash with Mr. Juarez (s3/T360). Tow trucks had loaded the crashed cars (s3/T361). Trooper Yock showed Corporal Staley where Mr. Juarez had been found and Corporal Staley made some measurements (s3/T361, 374-378). Corporal Staley questioned Mr. Juarez about the crash in the presence of Trooper Yock (s3/T361-363, 381). Corporal Staley read Miranda rights from a card and explained them in simple terms in English (s3/T362-363). Mr. Juarez appeared to understand (s3/T363). He used many hand gestures while trying to describe the crash (s3/T363-364). He admitted driving the car and hitting another car (s3/T364).
Paramedic Kristi Halvorsen testified she was dispatched to the crash scene as secondary rescue after initial units were on the scene (s4/T393). Her captain sent her to the second car, but when she arrived there was no one there and she returned to help other paramedics (s4/T391). She assessed the deceased victim (s3/T384). She was again sent to the second car (s4/T394-395).
Paramedic Halvorsen testified she saw Mr. Juarez with two officers (s4/T395). She asked Mr. Juarez if he was okay, he said he was okay, and she saw he had a cut finger (s4/T395-396). She took him to her ambulance for a full assessment (s4/T395-396). When she questioned him, he said he remembered the crash, he had not passed out, and he got out of the car on his own (s4/T396-397, 411-412). He did not understand when she asked why he got out of the car and had difficulty understanding other questions (s4/T397-398, 406, 412). He had no injuries other than pain at the back of his head and a lacerated finger (s4/T398, 407-408). She put Mr. Juarez on a backboard, put a cervical collar on him, and put a cardiac monitor on him (s4/T408-410). She drew blood from Mr. Juarez at the request of a State Trooper (s4/T391, 399-400).
Florida Highway Patrol Corporal David Stahley testified that at 2:08 a.m. on April 20, 2007 he was dispatched to investigate the crash (s4/T420, 423). While en route, he received information about the crash from Trooper Yock (s4/T420). Upon arriving at the scene at 2:11 a.m., he surveyed the scene and found there were no witnesses present (s4/T420-421, 425, 525). He photographed the lengthy crash scene (State's Exhibits 1A-1E, 2A-2D), made a field sketch, marked the tire marks with chalk or paint, made measurements, called tow trucks, and called the medical examiner (s4/T421-423, 426-430, 434-435, 443-456, 484-505, 527; v5/T594-596). He did not videotape the scene because he had no access to video recorders and chose not to use video equipment of the North Port Police (s3/T427, 529).
Corporal Stahley testified he determined the scene of the collision by tire deviation marks (s4/T431-432, 446-447, 450, 521). The left rear of the Saturn was struck by the right front of the Lincoln (s4/T432, 446-447, 450, 491-492, 494, 496-501, 539). From that point, the red Saturn rotated clockwise until it left the road (s4/T432, 438-439, 447-450, 486, 496). It then slid sideways digging furrows in the grass, as it slowed it overturned, it hit trees, then it landed on its roof (s4/T432-435, 438-439, 451-456, 484-486, 490-491, 539). He believed Ms. Unger was ejected from the car as it flipped (s4/T433-434, 485). She was airborne for 111 feet until she plowed into a pine tree where she was found by paramedics (s4/T434-435). Mr. Unger was under the overturned car (s4/T488-489). The Saturn traveled 307 feet six inches from the point of collision (s4/T539; s5/T598). Corporal Stahley did not inspect the rear lights of the Saturn (s4/T541).
Corporal Stahley testified tire marks indicate that after the collision, Mr. Juarez's car swerved off the road, avoided the trees, traveled back onto the road, then traveled further south on the road until stopping on the grass 25 feet from the road and 1,062 feet from the scene of the collision and approximately 668 feet from the Saturn (v4/T436-438, 440, 487, 496-498, 540; v5/T599-604). There was no tire mark evidence on the road consistent with Mr. Juarez's car braking (s4/T426, 450, 488). The right front tire was flat (s4/T442). There was blood on the center console, in the driver's area, on the driver's door, and on the outside on the A pillar on the passenger side, dripping toward the hood (s4/501-503, 544, 547-549; v5/T597-598). The airbags were deployed and the windshield was cracked (s4/T502, 504, 641). There were four full bottles beer, an empty beer bottle, a broken beer bottle, and bottle caps on the passenger side floor (s4/T503-504, 530-531). There was no indication that there was a passenger during the crash (s4/T506). Mr. Juarez got out of the car and entered an area of thick brush, palmettos, and pine trees (s4/T441-443, 548-550).
Corporal Stahley testified that at approximately 5:25 a.m. Trooper Yock drove Mr. Juarez from the hospital to the crash site (s4/T507). Trooper Yock marked the area where he found Mr. Juarez and showed it to Corporal Stahley (s4/T551-553). Mr. Juarez had an odor of alcoholic beverage, he had red watery eyes, he had a red mark on his forehead, and he had a bandage on his hand (s4/T511, 524). In the presence of Trooper Yock, Corporal Stahley informed Mr. Juarez of his Miranda rights in English, then questioned him in English (s4/T423, 507-524, 532). Mr. Juarez was alert, coherent, and rational and he indicated in English that he understood (s4/509-513, 532-533). He did not say he did not speak English (s4/T512-513). Corporal Stahley did not seek an interpreter or believe one was needed (s4/T532-533; v5/T597).
Corporal Stahley testified that Mr. Juarez said he had been driving the car and was the sole occupant (s4/T505-506, 518). He said he was traveling in the right lane and the other car caused the collision by swerving in front of him (s4/T518-519). He initially denied drinking alcohol, then said he had two beers at 4:00 p.m. (s4/T523). He said he cut his finger and his finger was bandaged (s4/T506). Corporal Stahley did not believe his account of the collision was consistent with the evidence at the accident scene (s4/T520-522).
Corporal Stahley testified that he had a tape recorder, but he did not tape the questioning (s4/T524-525, 529, 533, 555-556). He also had a digital camera, but he did not photograph Mr. Juarez (s4/T533-534). He was unaware that North Port Police had audio-video recording equipment (s4/T534). On April 23, 2007, he photographed the cars at the tow yard (State's Exhibits 6, 7, 8, 9A-9N) (s4/T489-505).
Dr. Bruce Goldberg testified he was a forensic toxicologist (s4/T558). Mr. Juarez reportedly was 5'8" tall and weighed 150 pounds (v4/T582). The crash reportedly occurred at 1:15 a.m. and the blood was drawn at 2:13 a.m. (v4/582, 588). Two tests of the blood by FDLE indicted blood alcohol levels of .124 and .125 (s5/T583). Assuming he was not still absorbing alcohol and based on a rate of metabolizing alcohol at .015 per hour, Mr. Juarez had a blood alcohol level of .139 or .140 at the time of the crash (s5/T583-584, 586-587). A driver is impaired when blood alcohol is .08 or higher (s1/584, 590).
FDLE Crime Laboratory Analyst Davis Blanchard testified he performed gas chromatograph testing on the blood sample from Mr. Juarez (State's Exhibit 13A) (s5/T620-624). Testing indicated a blood alcohol level of .124 on the first test and .125 on the second test, as indicated in his report (State's Exhibit 13B) (s5/T624-626). The legal limit for blood alcohol when driving in Florida is .08 grams of alcohol per 100 milliliters of blood (s5/T626). He did not observe evidence of fermentation in the blood sample (s5/T639).
Dr. Susan Utley, Medical Examiner for Sarasota, Manatee, and Desoto Counties, testified that on April 21, 2007, she conducted an autopsy of Thomas Unger (s5/T651). There was: a large laceration on his head; abrasions on the head, neck, chest, abdomen, back, and left arm; and blunt impact to the torso and head, as depicted in photographs (State's Exhibits 12A, 12B) and a diagram (State's Exhibit 11) (s5/T654-660). Blood Alcohol and urine screens were negative for alcohol and drugs (s5/T660). A crushing injury to the skull caused death (s5/T654, 661). That injury would have resulted in immediate incapacitation (s5/T661).
STATEMENT OF THE CASE AND FACTS BY AE, STATE
The State accepts the Statement of Case and Statement of Facts presented by Juarez for purposes of this appeal.
SUMMARY OF THE ARGUMENT BY AA, NOE JUAREZ
The trial court erred by denying the motions to suppress Juarez's statements. The initial statements, compelled pursuant to section 316.062, Florida Statutes (2005), were inadmissible at trial. The subsequent statements were inadmissible at trial because there was no knowing and voluntary waiver of Miranda rights. The error was prejudicial and not harmless. The cause must be reversed for a new trial.
The trial court erred by denying the motion to prevent juror contact with the Victims Monument. Juarez's right to impartial jury guaranteed under article I, section 16, of the Florida Constitution was denied when the jury was not instructed to avoid the Victims Monument, which with apparent imprimatur of the court, applies an improper influence on jurors. It asserts they must feel the indignation of victims and to feel sympathy for victims in order to achieve justice. The cause must be reversed for a new trial.
The trial court erred by denying the request for the jury to be instructed on a lesser offense.
SUMMARY OF THE ARGUMENT BY AE, STATE
ISSUE I: The trial court did not err when denying Juarez's motion to suppress.
ISSUE II: The trial court did not err when denying Juarez's motion in limine to prevent juror contact with "victim's monument".
ISSUE III: The trial court did not err when denying Juarez's request for jury instruction on D.U.I manslaughter, serious bodily injury.
ARGUMENT BY AA, NOE JUAREZ
I. THE TRIAL COURT ERRED BY DENYING THE MOTIONS TO SUPPRESS JUAREZ'S STATEMENT.
[ SAN : Pages long verbatim recitation of facts deleted]
The initial statements of Mr. Juarez were obtained withoutMiranda warnings or an express statement by officers that they were conducting a criminal investigation (s1/R354-365, 373, 384-385, 430-433, 464-466, 470, 472). In its motion, the defense asserted statements compelled pursuant to section 316.062, Florida Statutes (2005) must not be used at trial (v1/R71).
In construing section 316.066, Florida Statutes (Supp. 1988), this Court has stated:
To clarify our decision, we emphasize that the privilege granted under section 316.066 is applicable if no Miranda warnings are given. Further, if a law enforcement officer gives any indication to a defendant that he or she must respond to questions concerning the investigation of an accident, there must be an express statement by the law enforcement official to the defendant that "this is now a criminal investigation," followed immediately by Miranda warnings, before any statement by the defendant may be admitted.
State v. Norstrom, 613 So.2d 437, 440-41 (Fla. 1993). We cannot say that the 1991 amendments to that statute and section 316.062, Florida Statutes (Supp. 1988), affect our holding in Norstrom. If the legislature had intended to eliminate the statutory requirement that drivers give accident reports to investigating officers, it would have said so in clearer language).
State v. Marshall, 695 So. 2d 686 (Fla. 1997). Despite their inadmissibility, these initial statements were admitted at trial (s3/T327-331, 380-381; s4/396-398, 406, 411-412).
There was evidence that Mr. Juarez did not knowingly waive hisMiranda rights.
"[T]o reduce the risk of a coerced confession and to implement the Self-Incrimination Clause," Chavez v. Martinez, 538 U.S. 760, 790, 123 S.Ct. 1994, 155 L.Ed.2d 984 (2003) (KENNEDY, J., concurring in part and dissenting in part), this Court in Miranda concluded that "the accused must be adequately and effectively apprised of his rights and the exercise of those rights must be fully honored," 384 U.S., at 467, 86 S.Ct. 1602. Miranda conditioned the admissibility at trial of any custodial confession on warning a suspect of his rights: failure to give the prescribed warnings and obtain a waiver of rights before custodial questioning generally requires exclusion of any statements obtained.
Missouri v. Seibert, 542 U.S. 600 (2004). Mr. Juarez testified that although he knows some English words, he does not speak English, after the incident he asked for but did not get an interpreter, he communicated with gestures and drawings, and he did not know he had the right to an attorney (s1/461-462, 464-467, 470, 472). Although the State's witnesses opined that Mr. Juarez understood English and knowingly waived hisMiranda rights, they confirm his account of difficulties with English and communication with gestures (S1/ R354-358, 360-365, 370-385, 394-422, 430-433, 441-448, 453-454).
"[T]he determination whether statements obtained during custodial interrogation are admissible against the accused is to be made upon an inquiry into the totality of the circumstances surrounding the interrogation, to ascertain whether the accused in fact knowingly and voluntarily decided to forgo his rights to remain silent and to have the assistance of counsel." Fare v. Michael C., 442 U.S. 707 (1979). "Obviously, the degree of a defendant's ability to adequately speak and understand English is a significant factor which must be considered in the totality of the circumstances."Balthazar v. State, 549 So. 2d 661, 662 (Fla. 1989) ("Before the state may introduce a defendant's statement at trial, the state must show by a preponderance of the evidence that the defendant made the statement voluntarily."). The trial court erred by denying the motion to suppress. See United States v. Fung, 780 F.Supp. 115, 116 (E.D.N.Y. 1992) ("Based on the evidence at the suppression hearing-including Ms. Chen's poor language skills, her lack of knowledge of the American legal system, and her tensions-it is clear that she did not comprehend her fifth amendment right to remain silent.") [ SAN : distinguished by Chavez v. State , 832 So. 2d 730 (Fla. 2002) (record reflects that Chavez's intelligence, education and alienage did not adversely affect his understanding of his rights)].
The defense also moved to suppress based on violations of the Vienna Convention on Consular Relations (v1/R87-91. The facts at the suppression hearing clearly establish that Mr. Juarez's Vienna Convention on Consular Relations rights were violated (s1/363-365, 449, 455-456, 466, 472, 474). Unfortunately the courts have found that suppression of evidence is not a remedy for violations of the Vienna Convention on Consular Relations:
[S]uppression of a post-arrest statement "is not an appropriate remedy for an alleged violation of article 36 of the Vienna Convention." Conde, 860 So. 2d at 953 (citing United States v. Chaparro-Alcantara, 226 F.3d 616, 622 (7th Cir. 2000); United States v. Cordoba-Mosquera, 212 F.3d 1194, 1196 (11th Cir. 2000); United States v. Li, 206 F.3d 56, 66 (1st Cir. 2000); and United States v. Page, 232 F.3d 536, 541 (6th Cir. 2000)); see also Sanchez-Llamas, 548 U.S. at 350, 126 S.Ct. 2669 ("[N]either the Vienna Convention itself nor our precedents applying the exclusionary rule support suppression of Sanchez-Llamas' statements to police.").
Lugo v. State, 2 So. 3d 1, 18 (Fla. 2008). However, Juarez believes these courts are wrong. Additionally, the violation of his consular rights should be part of the totality of the circumstances surrounding the interrogation to be considered by this Court in determining whether he knowingly and voluntarily decided to forgo his rights.
A trial court's denial of a motion to suppress is reviewable under the "abuse of discretion" standard. See Voorhees v. State, 699 So. 2d 602 (Fla. 1997). To prevail, Appellant must demonstrate that the trial court prejudicially erred. § 924.051(7), Fla. Stat. (1999).
Lewis v. State, 754 So. 2d 897 (Fla. 1st DCA 2000). Without Mr. Juarez's statement, the State had only circumstantial evidence that he was the driver of a car involved in the accident. The State cannot meet its burden of proving beyond a reasonable doubt that the error of admitting the statements did not contribute to the verdict.State v. DiGuilio, 491 So. 2d 1129 (Fla. 1986) ("The question is whether there is a reasonable possibility that the error affected the verdict."). The cause must be reversed for a new trial.
ANSWER BY AE, STATE
I. THE TRIAL COURT DID NOT ERR WHEN DENYING JUAREZ'S MOTION TO SUPPRESS.
On April 20, 2007, at 1:10 a.m., a traffic accident occurred in North Port, Florida on Interstate 75. (Tr. 349). Law enforcement officers and firefighters began to arrive at approximately 1:20 a.m. In one area of the accident scene, an overturned car was discovered. In that vehicle, one individual was deceased and the other was seriously injured. According to law enforcement officers, another vehicle, a Lincoln, was found parked on the shoulder of the road, 965 feet from the overturned vehicle. The Lincoln displayed front-end damage. (Tr. 352). An inspection of the Lincoln's interior revealed areas of blood and a deployed driver's side airbag. (Tr. 367).
A wooded area adjacent to the Lincoln was searched. Shortly after 2:00 a.m., law enforcement found Juarez lying on the ground, hiding within a wooded area. (Tr. 353-354). Juarez had blood all over his clothes and an injury to his hand. Pursuant to a traffic investigation, Juarez made statements to law enforcement. (Tr. 355). Juarez also made statements to a responding paramedic of the North Port Fire Department. Juarez was then transported to a hospital to be treated. (Tr. 361). After being treated, law enforcement drove Juarez to the scene of the accident. (Tr. 370). Upon returning to the scene of the accident, Juarez was further questioned by law enforcement post-Miranda.
Juarez was charged with D.U.I. manslaughter without rendering aid; D.U.I. causing serious bodily injury. (R. 38). On February 25, 2008, Juarez filed its Motion to Suppress Statements. (R. 68). On April 8, 2008, Juarez filed its Motion to Suppress Physical Evidence and Statements (Violation of International Treaties). (R. 87). On April 15, 2008, and May 7, 2008, a hearing on the motion was held. (Tr. 342; 436). On May 9, 2008, the trial court filed its written Order Denying Juarez's Motion to Suppress. (R. 109).
A trial court's ruling on a motion to suppress is clothed with a presumption of correctness on appeal, and the reviewing court must interpret the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to sustaining the trial court's ruling. State v. Manuel, 796 So.2d 602, 604 (Fla. 4th DCA 2001). Findings of fact made by the trial court are subject to the substantial competent evidence standard. Ikner v. State, 756 So.2d 1116, 1118 (Fla. 1st DCA 2000). At the same time, legal issues such as the legal standard applied by the trial court are reviewed de novo. State v. Young, 971 So.2d 968, 971 (Fla. 4th DCA 2008).
In its Initial Brief on appeal, Juarez argues the trial court erred when denying Juarez's Motion to Suppress statements made to law enforcement. First, Juarez claims his initial statements were inadmissible because they were compelled pursuant to section 316.062, Florida Statutes, and were obtained withoutMiranda warnings or an express statement by officers they were conducting a criminal investigation.
[FN 1: 316.062. Duty to give information and render aid
(1) The driver of any vehicle involved in a crash resulting in injury to or death of any person or damage to any vehicle or other property which is driven or attended by any person shall give his or her name, address, and the registration number of the vehicle he or she is driving, and shall upon request and if available exhibit his or her license or permit to drive, to any person injured in such crash or to the driver or occupant of or person attending any vehicle or other property damaged in the crash and shall give such information and, upon request, exhibit such license or permit to any police officer at the scene of the crash or who is investigating the crash and shall render to any person injured in the crash reasonable assistance, including the carrying, or the making of arrangements for the carrying, of such person to a physician, surgeon, or hospital for medical or surgical treatment if it is apparent that treatment is necessary, or if such carrying is requested by the injured person.]
During the April 15, 2008, hearing on Juarez's Motion to Suppress, Trooper Yock of the Florida Highway Patrol testified when he first made contact with Juarez he was 75 to 100 feet from where Juarez's vehicle was parked. (Tr. 353). The trooper heard noises in a wooded area next to the highway. When the trooper came to a small opening in the woods, he observed a make lying in the fetal position hiding behind a small tree. The trooper ordered Juarez to come out from his hiding place, and asked for Juarez's identification in English. (Tr. 355-356). Juarez was able to respond in English. (Tr. 356).
Juarez said he was in the outside lane; that he saw lights, and he swerved and missed the lights in front of him. (Tr. 358). Juarez was scared, and not sure what was going on. It was apparent to Trooper Yock Juarez was the at-fault driver. (Tr. 359). It was also apparent to the trooper Juarez had fled the scene of the accident and was hiding. Based upon the conversation he had with Juarez, Trooper Yock was able to conclude Juarez was able to understand English, and comprehend and answer the trooper's questions effectively. (Tr. 360). Trooper Yock never told Juarez he was under arrest. (Tr. 373). In the emergency room, Trooper Yock asked Juarez questions solely to determine his identity. (Tr. 366, 374). Juarez was able to comprehend the trooper's questions. (Tr. 374).
At trial, Trooper Yock testified that at the accident scene Juarez had blood on his pants, shirt, and one of his index fingers was cut. (Tr. 327). Juarez acknowledged he was driving the Lincoln, and no one else was in the vehicle. (Tr. 330). Later, Juarez said he cut his finger on a beer bottle. Id. Juarez advised the trooper he dropped his wife in Palmetto, and was on his way back to Fort Myers. (Tr. 331). Trooper Yock noticed signs of impairment.Id. The trooper got real close to Juarez's face and smelled a strong odor of alcoholic beverage on his breath and observed his eyes were extremely bloodshot and watery. Id.
During the April 15, 2008, hearing on Juarez's Motion to Suppress, paramedic Kristy Halvorson testified Juarez was able to understand her questions in English, and was able speak English. (Tr. 394, 399). Juarez was able to explain in English to Halvorson he had a small cut on his finger and also a little small pain on the back of his head. (Tr. 395). Halvorson was able to understand Juarez. (Tr. 396). At trial, Halvorson added Juarez told her he was able to get out of his car on his own after the accident occurred. (Tr. 396-397).
The State contends the record shows Juarez's pre-Miranda statements provided to Trooper Yock and paramedic Halvorson were necessary for the accident investigation pursuant to section 316.062, Florida Statutes. Section 316.066, Florida Statutes, creates an evidentiary privilege for any statement made by such persons to a law enforcement officer for the purpose of completing an accident or crash report as required by section 316.066. See State v. Marshall, 695 So.2d 686 (Fla. 1997) (Section 316.066, provides that no statement made by a person involved in a crash to a law enforcement officer for the purpose of completing a crash report shall be used as evidence in any trial). Moreover, the privilege may extend beyond statements at the scene of the accident. For example, the privilege could protect statements made to an investigating officer at a hospital by the driver of an automobile. See, e.g., St. Germain v. Carpenter, 84 So.2d 556 (Fla. 1956).
However, the privilege does not apply to statements of suspected hit-and-run drivers who the police eventually track down and question. See Cummings v. State, 780 So.2d 149 (Fla. 2D DCA 2000). Here, Juarez was charged with D.U.I. manslaughter without rendering aid. Evidence at the suppression hearing showed when Trooper Yock first made contact with Juarez he was 75 to 100 feet from where Juarez's vehicle was parked. Juarez was not with his vehicle. Instead, the trooper discovered Juarez hiding behind a tree in a wooded area next to the highway. Thus, the record shows Juarez, as suspected hit-and-run driver, was not entitled to the confidentiality privilege of section 316.066. Additionally, since the record show Juarez was not "in custody" during the questioning by Trooper Yock, the trooper was not required to advise Juarez of his Miranda rights prior to questioning. See Roman v. State, 475 So.2d 1228 (Fla. 1985). Therefore, under the instant circumstances, Miranda warnings were not required during Trooper Yock and paramedic Halvorson's initial questioning, and Juarez's statements were admissible.
Next, Juarez claims his subsequent statements to Corporal Stanley were inadmissible because there was no knowing and voluntary waiver of his Miranda rights. To this end, Juarez claims he did not have a sufficient understanding of the English language and was questioned without an interpreter. Juarez further claims officer's "question first" tactics rendered Juarez's Miranda warnings meaningless.
In its May 9, 2008, written Order Denying Juarez's Motion to Suppress the trial court found:
First, with respect to the Defendant's Motion to Suppress Statements, the court finds that the Defendant's claim that his statements were not voluntary and intelligent because he did not have a sufficient understanding of the English language is without merit. All the credible testimony established that the Defendant, although his command of the English language does not qualify him as fluent in English, could understand English and answer questions sufficiently in English. Specifically, Trooper Yock testified that the Defendant told him that he had dropped his wife off at work prior to the accident, and Ms. Halvorsen testified that the Defendant understood and appropriately answered several health related questions regarding the pain in his head and cut on his finger. Additionally, Ms. Halvorsen testified that if there was a serious language barrier with the Defendant, she would have noted that in her report, which she testified she did not. Additionally, the court would note that during the Defendant's own testimony, it appeared to the court that the Defendant had a selective understanding of English and, therefore, his testimony regarding his lack of understanding of the Miranda warnings and the waiver of his rights appears not to be credible.
. . . .
The court rejects the Defendant's claim that Corporal Staley employed the question first method condemned in Missouri v. Seibert, 542 U.S. 600 (2004), as the record does not reflect that Corporal Staley's interrogation was calculated to undermine the Miranda warning. See Seibert at 622.
(R. 111-112).
The State submits the record from the April 15, 2008, and May 7, 2008, hearing supports the trial court's findings Juarez could understand English and answer questions sufficiently in English. In addition to the above referenced testimony provided at the April 15, 2008, hearing, at the May 15, 2008, hearing Corporal Stanley testified when he first encountered Juarez he Mirandized him from the preprinted form. (Tr. 441-442). After Juarez acknowledged his rights, the corporal reiterated the questions. (Tr. 443). Specifically, after each sentence the corporal stopped and asked Juarez if he understood his rights. Id. Juarez indicated he understood by nodding and stating, "Yes". Corporal Stanley emphasized to Juarez he did not have to talk to the corporal. At no time did it appear to the corporal Juarez did not understand him. (Tr. 444).
In addition to reading Juarez the formal Miranda form, Stanley supplemented the language in the form in a general-type vernacular. (Tr. 443-444). According to Trooper Yock, "Corporal Stanley read them verbatim on the card. I remember Corporal Stanley also using hand gestures and saying stuff to like point to him. Certain words he would point to himself and say, you don't have to talk to us, and stuff like that, so he tried to use simple terminology." (Tr. 371). Juarez answered every question asked of him. When asked what happened at the crash, Juarez told Stanley he was driving his car and the other car came across, then struck and collided. (Tr. 445). Juarez went into the complexity of describing how the other vehicle went down into the median and he came down, drove back out. Based on his training and experience, Corporal Stanley believed Juarez comprehended everything asked of him. (Tr. 447).
In addition, the record provides no indication Corporal Staley's interrogation was calculated to undermine the Miranda warning given to Juarez. Furthermore, the trial court was able to observe Juarez testify. (Tr. 460). Juarez explained he was 22 years of age and had lived in the United States 15 years. (Tr. 461). During that time, Juarez never returned to Mexico. In sum, the State contends the record supports the trial court's conclusion Juarez's waiver of his Miranda rights was knowing and voluntary given the totality of the circumstances.
Finally, the State submits Juarez's claim the trial court erred when denying Juarez's Motion to Suppress based on violations of the Vienna Convention on Consular Relations is meritless. See Lugo v. State, 2 So.3d 1 (Fla. 2008) (suppression of a post-arrest statement "is not an appropriate remedy for an alleged violation of article 36 of the Vienna Convention). Alternatively, the State contends any error by the trial court when denying Juarez's Motion to Suppress statements to law enforcement and paramedics was harmless beyond a reasonable doubt. See State v. DiGuilio, 491 So.2d 1129 (Fla. 1986). While Juarez's statements clearly demonstrate Juarez was the driver of the Lincoln involved in the accident, the State submits additional competent evidence excluding Juarez's admissions sufficiently proved Juarez was the driver of the Lincoln. To this end, the facts show the accident occurred in a remote part of the interstate at 1:00 a.m. in the morning. The traffic at the accident location site was extremely light. Only two cars were involved; Juarez is found hiding behind a tree 100 yards from the Lincoln in the woods; bloodshot, with watery eyes and a strong odor of alcoholic beverage on Juarez's breath; the Lincoln is observed to have blood inside; Juarez is observed with bloody clothing and a cut finger; there were no other persons discovered at the scene except Juarez and the two victims. Based upon this evidence, the State submits the jury could easily conclude Juarez was the driver of the vehicle and he was impaired. For these reasons, Juarez's conviction and sentenced should be affirmed.
REPLY BY AA, NOE JUAREZ
None provided
ARGUMENT BY AA, NOE JUAREZ
II. THE TRIAL COURT ERRED BY DENYING THE DEFENSE MOTION TO PREVENT JUROR CONTACT WITH AN INFLAMMATORY INFLUENCE.
"Under article I, section 16, of the Florida Constitution, and Florida Rule of Criminal Procedure 3.251, an accused has the right to trial by an impartial jury." Richardson v. State, 666 So.2d 223, 224 (Fla. 2d DCA 1995). In this case, the defense moved in limine to prevent juror contact with an inflammatory influence. Standard Jury Instructions in Criminal Cases 2.1 includes:
The case must be tried by you only on the evidence presented during the trial in your presence and in the presence of the defendant, the attorneys and the judge. Jurors must not conduct any investigation of their own. Accordingly, you must not visit any of the places described in the evidence, and you must not read nor listen to any reports about the case. Further, you must not discuss this case with any person and you must not speak with the attorneys, the witnesses or the defendant about any subject until your deliberations are finished.
The defense merely sought an addition to this standard warning to deal with a local inflammatory influence.
[ SAN : Repetition of facts about the monument deleted]
The inscription on the plaque: "Justice will only be achieved when those who are not injured by crime feel as indignant as those who are" is a blatant appeal to the jurors' emotions and constitutes an improper "Golden Rule" influence on the juror, one that with its position adjacent to the courthouse steps and its regular use by jurors, has the appearance of approval by the court. Golden Rule arguments improperly ask "the jurors to place themselves in the position of the victims and asking them to think how they would feel if the crime happened to them." DeFreitas v. State, 701 So. 2d 593, 601 (Fla. 4th DCA 1997). The prohibition of Golden Rule remarks has long been the law of Florida.Bertolotti v. State, 476 So. 2d 130, 133 (Fla. 1985). Stating that justice will only be achieved by feeling as indignant as victims is also tantamount to instructing jurors that this is their duty as jurors. See Urbin v. State, 714 So. 2d 411, 421 (Fla. 1998) (prosecutor improperly argued jurors must follow the law and do their duty by rejecting a life sentence for the defendant).
Mr. Juarez's right to impartial jury guaranteed under article I, section 16, of the Florida Constitution was denied when the jury was not instructed to avoid the Victims Monument, which with apparent imprimatur of the court, applied an improper influence on jurors. It asserts they must feel the indignation of victims and to feel sympathy for victims in order to achieve justice. The effect of the plaque is magnified by the pavers inscribed with messages from the friends and families of crime victims. "[A]s far as golden rule arguments are concerned, the lines are clear and bright, simply put they are improper. In short, they enjoy no safe harbor in the trial of a criminal case." Golden Rule violations are just as improper when they are accomplished by erecting a monument as when they are used by counsel in argument.
"The court may, and should whenever necessary, in all criminal trials, caution the jury against convictions from prejudice . . ."Doyle v. State, 22 So. 272 (Fla. 1897). "If the court was advised that improper influences were being exercised, either for or against the defendant, it was his duty to warn the jury . . ."Walker v. State, 90 So. 376 (Fla. 1921). The cause must be reversed for a new trial.
ANSWER BY AE, STATE
II. THE TRIAL COURT DID NOT ERR WHEN DENYING JUAREZ'S MOTION IN LIMINE TO PREVENT JUROR CONTACT WITH "VICTIM'S MONUMENT".
On April 29, 2008, Juarez filed a Motion in Limine to Prevent Juror Contact with "Victim's Monument". (R. 100). In that motion, Juarez notes approximately eight (8) years ago, a monument was placed within several feet of the steps in front of the Sarasota County Courthouse where Juarez's trial took place. The Monument consists of a magnolia tree. Under the tree is a large stone and metal plaque with the inscription: "Justice will only be served when those who are not injured by crime feel as indignant as those who are."
The inscription credits the quote to Solomon. (R. 101). Individuals are able to place messages inscribed in bricks that surround the tree and stone. The vast majority of the messages on the bricks concern the subject of deceased friends or family members. The motion further alleges the Monument and the area directly next to the Monument is well known as a regular gathering place for jurors and prospective jurors who are called to service at the courthouse. (R. 101). Juarez claimed he would not receive a fair trial if jurors and prospective jurors are allowed to come in contact with the Monument. Juarez further claimed the Monument's placement and appearance creates a reasonable and strong belief the message inscribed on the plaque has the court's approval. According to Juarez, the Monument contains messages on the above-described bricks likely to inflame the juror's emotions.
On May 19, 2008, at the start of trial, the trial court orally denied Juarez's Motion in Limine To Prevent Juror Contact with "Victim's Monument". (Tr. 16). Apparently, the court considered a similar motion for a separate case and applied the same ruling to the defendant in the instant case. (Tr. 15-16). The same day, the trial court filed its written Order Denying Motion in Limine To Prevent Juror Contact with "Victim's Monument". (R. 104). In that written order, the trial court references a May 7, 2008, hearing on Juarez's motion. The appearance record for the May 7, 2008, hearing on Juarez's suppression motion notes the issue concerning Juarez's Motion in Limine to Prevent Juror Contact with "Victim's Monument" was not addressed. (R. 104).
On appeal, Juarez claims the inscription on the plaque is a blatant appeal to the jurors' emotions and constitutes an improper "Golden Rule" influence on the juror, one that with its position adjacent to the Courthouse steps and its regular use by jurors, has the appearance of approval by the court. The State submits a review of the voir dire transcript fails to show that any of the prospective jurors read the monument. Thus, Juarez's complained-of error is mere speculation and unsupported by the record. By contrast, the record does show all of the actual jurors stated they would be fair and impartial and follow the law as given by the trial court. For this reason, Juarez's conviction and sentence should be affirmed.
REPLY BY AA, NOE JUAREZ
None provided
ARGUMENT BY AA, NOE JUAREZ
III. THE TRIAL COURT ERRED BY DENYING THE REQUEST FOR THE JURY TO BE INSTRUCTED ON A LESSER-INCLUDED OFFENSE.
Mr. Juarez was charged with: (1) DUI manslaughter without rendering aid or information; (2) driving under the influence with serious bodily injury; (3) driving while drivers license suspended and causing great bodily injury or death; and (4) giving false information to a law enforcement officer (v1/R38-40). A jury trial on counts one and two was held on May 19-22, 2008 before Judge Economou (v1/136-137, 138, 143, 144-145, 148-149, 174-175, 176-181; s2-6/T1-834). During the charge conference, the defense sought instruction on DUI manslaughter serious bodily injury as to count one (s5/T693-695, 717, 728-729). The request was denied (s5/T696-697, 730). The jury found Mr. Juarez guilty of the lesser included offense of DUI manslaughter on count one and guilty as charged on count two (v1/R144, 150; s6/T827-829).
Florida Standard Criminal Jury Instruction 7.8 provides that driving under the influence causing serious bodily injury is a category 2 lesser-included offense of driving under the influence manslaughter. The offenses of driving under the influence manslaughter and driving under the influence causing serious bodily injury require essentially the same elements, differing only on the element of death and serious bodily injury. Driving under the influence causing serious bodily injury should be a necessarily, or category one, lesser included offense of driving under the influence manslaughter. See Boland v. State, 893 So.2d 683, 685 (Fla. 2d DCA 2005) (stating that a necessarily lesser included offense is one in which the burden of proof on the elements of the charged crime cannot be discharged without proving the lesser crime).
At trial, the jury must be instructed on category one lesser included offenses; whether the jury is instructed on category two lesser included offenses depends on the trial judge's determination of whether the elements of "category 2 crimes may have been alleged and proved." State v. Wimberly, 498 So. 2d 929, 931 (Fla. 1986) (quoting Fla. Std. Jury Instr. (Crim.) notes (2d ed. 1981)).
State v. Montgomery, 39 So. 3d 252, 259 (Fla. 2010). Florida Standard Criminal Jury Instruction 7.8 provides:
To prove the crime of Driving under the Influence Manslaughter, the State must prove the following three elements beyond a reasonable doubt:
1. (Defendant) drove or was in actual physical control of a vehicle.
2. While driving or in actual physical control of the vehicle, (defendant)
Give 2a or 2b or both as applicable.
a. was under the influence of [alcoholic beverages] [a chemical substance] [a controlled substance] to the extent that [his] [her] normal faculties were impaired.
b. had a [blood] [breath] alcohol level of .08 or more grams of alcohol per [100 milliliters of blood] [210 liters of breath].
3. As a result of operating the vehicle, (defendant) caused or contributed to the cause of the death of [(victim)].
Florida Standard Criminal Jury Instruction 28.3 provides:
To prove the crime of Driving under the Influence Causing Serious Bodily Injury, the State must prove the following three elements beyond a reasonable doubt:
1. (Defendant) drove or was in actual physical control of a vehicle.
2. While driving or in actual physical control of the vehicle, (defendant)
Give 2a or 2b or both as applicable.
a. was under the influence of [alcoholic beverages] [a chemical substance] [a controlled substance] to the extent that [his] [her] normal faculties were impaired.
b. had a [blood] [breath]alcohol level of .08 or more grams of alcohol per [100 milliliters of blood] [210 liters of breath].
3. As a result of operating the vehicle, (defendant) caused or contributed to causing serious bodily injury to (victim).
Count one charged Mr. Juarez unlawfully drove or was in physical control of a vehicle while under the influence of alcoholic beverages, a chemical substance, or a controlled substance to the extent that his normal faculties were impaired or while he had a blood alcohol level of .08 or more grams of alcohol per 100 milliliters of blood, and by reason of the operation caused the death of Thomas Unger (v1/R39). The evidence at trial was that a car operated by Mr. Juarez, while his blood alcohol level was in excess of .08 grams of alcohol per 100 milliliters of blood, struck the car of Mr. Unger, causing him serious bodily injury resulting in death (3-5/255-661).
The trial court erred by denying the request for instruction on the lesser included offense. The error was not harmless. Despite efforts to prevent the jury from considering whether the Ungers contributed to their injuries by failing to wear seatbelts, the jury was extremely concerned about the issue of causation (v1/R120; s1/R484-486; s2/T2-11; s5/T662-671, 723-724, 740-742; s6/T812-820), and it may have found Mr. Juarez guilty of the lesser offense of driving under the influence causing serious bodily injury if given the option. See DiGuilio, 491 So. 2d 1129 ("The question is whether there is a reasonable possibility that the error affected the verdict."). The cause must be reversed for a new trial.
ANSWER BY AE, STATE
III. THE TRIAL COURT DID NOT ERR WHEN DENYING JUAREZ'S REQUEST FOR JURY INSTRUCTION ON D.U.I. MANSLAUGHTER, SERIOUS BODILY INJURY.
During the instant trial, the evidence showed when firefighters arrived shortly after the traffic accident, one of the victims was pinned underneath the overturned vehicle. That victim was declared deceased at the scene. Count One, D.U.I. manslaughter without rendering aid was charged based upon the deceased victim. The jury was also instructed on two lesser-included offenses: D.U.I. manslaughter, and D.U.I. (R. 150). Defense counsel requested an additional lesser-included. That is, D.U.I. manslaughter, serious bodily injury. (Tr. 693-695; 728). Defense counsel argued Juarez was entitled to the jury instruction on the lesser-included offense of D.U.I. manslaughter, serious bodily injury, even though the evidence overwhelmingly showed the victim deceased because juries are permitted to convict on lesser offenses if they choose to exercise their power to pardon.See Corpstein v. State, 872 So.2d 307 (Fla. 2 DCA 2004). The trial court denied Juarez's request for the lesser-included jury instruction. (Tr. 729-730). Ultimately, Juarez was found guilty of D.U.I. manslaughter, a lesser-included offense. R. 150).
Juarez argues the trial court erred by denying the request for the jury to be instructed on a lesser-included offense D.U.I. manslaughter, serious bodily injury. According to Juarez, Florida Standard Jury Instructions 7.8 provides D.U.I. causing serious bodily injury is a category 2 lesser-included offense of D.U.I. manslaughter. Juarez further notes D.U.I. manslaughter and D.U.I. causing serious bodily injury require essentially the same elements, differing only on the element of death and serious bodily injury. Juarez argues causation was an issue for the jury, thus, it may have found Juarez guilty of the lesser-included offense of D.U.I. causing serious bodily injury if given the option.
In analyzing the merits of Juarez's jury instruction issue, the State notes a trial court has wide discretion in instructing the jury, and the court's decision regarding the charge to the jury is reviewed with a presumption of correctness on appeal. Kearse v. State, 662 So.2d 677, 682 (Fla. 1995). A jury instruction cannot be given on a permissive lesser-included offense unless both the accusatory pleading and the evidence support the commission of that offense. See State v. Von Deck, 607 So.2d 1388 (Fla. 1992). Moreover, a trial court's instructions may not be confusing and misleading. See Hankerson v. State, 831 So.2d 235 (Fla. 1st DCA 2002).
The State contends the trial court did not err when denying Juarez's request for an instructing the jury on D.U.I. manslaughter, serious bodily injury because there was no contention at trial the victim in Count One had just serious bodily injury. Such an instruction would have been inappropriate as confusing and misleading based upon the facts in the instant case. For this reason, Juarez's conviction and sentence should be affirmed.
REPLY BY AA, NOE JUAREZ
None provided
CONCLUSION BY AA, NOE JUAREZ
In light of the foregoing reasons, arguments, and authorities, Juarez respectfully asks this Honorable Court to reverse the judgment and sentence of the lower court.
CONCLUSION BY AE, STATE
The State respectfully requests this Honorable Court affirm the judgment and sentence rendered in this case.