2D05-4123 / Conner v. State

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State: Florida

Court: Florida Southern District Court

Docket No: 2D05-4123

Case Date: 07/11/2008

Plaintiff: 2D05-4123 / Conner

Defendant: State

Preview:NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
DARION CONNER,                                                                        )
)
Appellant,                                                                            )
)
v.                                                                                    )   Case No. 2D05-4123
)
STATE OF FLORIDA,                                                                     )
)
Appellee.                                                                             )
)
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.
VILLANTI, Judge.
Darion Conner appeals his convictions for driving under the influence
(DUI) manslaughter and vehicular homicide and sentence for DUI manslaughter. 1   He
1    At sentencing, the trial judge merged count two into count one and sentenced
Conner to fifteen years on count one (DUI manslaughter).

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.
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:
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(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,2 which
2    See Hubbard v. State, 751 So. 2d 552 (Fla. 1999), for an informative and
thorough historical discussion on this topic.
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implies causation from a defendant's impairment and motor vehicle operation,3 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.
"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 evi-
dence."   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 Neuro-
logic Rehab., Inc. v. Marshall, 943 So. 2d 976 (Fla. 2d DCA 2006) (quoting Martinez,
761 So. 2d at 1079).
3    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.
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In Martinez, the supreme court reversed a first-degree murder conviction
because the trial court improperly permitted testimony from the lead investigator indi-
cating 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 defen-
dants 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 defen-
dant'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 investi-
gating officer is allowed to express his or her opinion about
the defendant's guilt.   In this situation, an opinion about the
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ultimate issue of guilt could convey the impression that
evidence not presented to the jury, but known to the investi-
gating 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 experi-
ence, 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
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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
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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.
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NORTHCUTT, J., Concurring.
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
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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.
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