SUPREME COURT OF FLORIDA

Transcription

1 IN THE SUPREME COURT OF FLORIDA ERIC W. SMALLRIDGE, v. Petitioner, Case No. SC District Court Case No. 1D STATE OF FLORIDA, Respondent. JURISDICTIONAL BRIEF OF PETITIONER MICHAEL UFFERMAN Michael Ufferman Law Firm, P.A. 660 East Jefferson Street Tallahassee, Florida (850) /fax (850) FL Bar No Counsel for Petitioner SMALLRIDGE

2 A. TABLE OF CONTENTS Page A. TABLE OF CONTENTS... ii B. TABLE OF CITATIONS...iii 1. Cases... iii 2. Statutes...iii 3. Other Authority... iv C. STATEMENT OF THE CASE AND STATEMENT OF THE FACTS... 1 D. SUMMARY OF ARGUMENT... 2 E. JURISDICTIONAL STATEMENT F. ARGUMENT AND CITATIONS OF AUTHORITY Conflict with Gerds Conflict with Carlisle Conflict with Eversley Conflict with Unruh Conflict with Cardenas Conflict with Hoffert G. CONCLUSION H. CERTIFICATE OF SERVICE I. CERTIFICATE OF COMPLIANCE B. TABLE OF CITATIONS Page ii

3 1. Cases Abney v. State, 766 N.E.2d 1175 (Ind. 2002)... 5 Cardenas v. State, 867 So. 2d 384 (Fla. 2004)... ii, 3, 8, 9, 10 Carlisle v. Game & Fresh Water Fish Comm=n, 354 So. 2d 362 (Fla. 1977)...ii, 2, 6 Chicone v. State, 684 So. 2d 736 (Fla. 1996)... 4, 5 Eversley v. State, 748 So. 2d 963 (Fla. 1999)...ii, 2, 6, 7 Gerds v. State, 64 So. 2d 915 (Fla. 1953)... ii, 2, 3, 4, 6 Gross v. State, 765 So. 2d 39 (Fla. 2000)... 4 Hoffert v. State, 559 So. 2d 1246 (Fla. 4th DCA 1990)...ii, 3, 10 Loftin v. Wilson, 67 So. 2d 185 (Fla. 1953)... 7 St. Petersburg Bank & Trust Co. v. Hamm, 414 So. 2d 1071 (Fla. 1982)... 5 Smallridge v. State, 904 So. 2d 604 (Fla. 1st DCA 2005)...1, 2, 3, 4, 6, 7, 8, 9, 10 Stahl v. Metropolitan Dade County, 438 So. 2d 14 (Fla. 3d DCA 1983)... 7 State v. Delva, 575 So. 2d 643 (Fla. 1991)... 4 State v. Hubbard, 751 So. 2d 552 (Fla. 1999)... 1, 3, 4, 5, 6, 7 Unruh v. State, 669 So. 2d 242 (Fla. 1996)...ii, 2, 7, 8 2. Statutes ' (3), Fla. Stat.... 1, 3, 5, 6 ' (1)(f)3, Fla. Stat.... 7, 8 ' , Fla. Stat iii

4 3. Other Authority Art. V, ' 3(b)(3), Fla. Const Fla. R. App. P (a)(2)(A)(iv)... 3 Fla. R. App. P (a)(2) U.S. Const. Amend. 6 1 iv

5 C. STATEMENT OF THE CASE/FACTS. Petitioner was convicted of two counts of DUI manslaughter under section (3), Florida Statutes. The alleged offenses occurred on May 11, The defense=s theory was that A[t]he collision occurred when [Petitioner] swerved his Jeep into the parallel lane occupied by the victims= vehicle in order to avoid colliding with another automobile [a Camaro] which had abruptly merged into his lane of Smallridge v. State, 904 So. 2d 604, 609 n.2 (Fla. 1st DCA 2005) (Ervin, J., concurring and dissenting). Over objection, the jury was instructed that it must find Petitioner guilty if his actions merely to the cause of the victims= deaths, even though the statute at the time of the offenses required that his actions be the of their deaths. On appeal, Petitioner raised three claims that are relevant to this brief. First, Petitioner argued that the jury instruction given in his case Amodifie[d] the straightforward causation provision in the [DUI manslaughter] statute by adding the alternative >or contributed to the cause= even though that language is not in the State v. Hubbard, 751 So. 2d 552, 566 (Fla. 1999) (Anstead, J., specially concurring). Petitioner maintained that the jury instruction Agreatly expand[ed] the of the DUI manslaughter Id. Second, Petitioner alleged that trial court erred by denying his motion to suppress the blood alcohol test because the blood was seized from him in violation of his Sixth Amendment right to counsel and in violation of his statutory right to a timely independent blood test without interference by the police. Third, Petitioner claimed that the trial court erred by permitting the State to admit blown-up photographs of 1

6 the victims in their car. On June 20, 2005, the First District affirmed Petitioner=s convictions. See Smallridge v. State, 904 So. 2d 601 (Fla. 1st DCA 2005). Judge Ervin issued a Aconcurring and dissenting@ opinion arguing that the case should be remanded for a new trial due to the violation of Petitioner=s right to an independent blood test and the error in permitting the State to introduce the blown-up photographs. See id. at (Ervin, J., concurring and dissenting). Judge Ervin noted that the Aphotographs here at issue were not exhibited simply as blown-up photographs, but were placed on an enlarged screen [4= x 4=] as part of a Power Point presentation during the testimony of the state=s accident reconstructionist.@ Id. at (footnote omitted). D. SUMMARY OF ARGUMENT. First, Smallridge conflicts with Gerds v. State, 64 So. 2d 915 (Fla. 1953), and other opinions from Florida=s appellate courts regarding whether a trial court must properly instruct the jury on the elements of an offense. Second, Smallridge conflicts with Carlisle v. Game & Fresh Water Fish Comm=n, 354 So. 2d 362 (Fla. 1977), regarding whether it is presumed that a statute has a different meaning after it is amended by the Legislature. Third, Smallridge conflicts with Eversley v. State, 748 So. 2d 963 (Fla. 1999), regarding whether mere contribution is sufficient to establish causation in a criminal case. Fourth, Smallridge conflicts with Unruh v. State, 669 So. 2d 242 (Fla. 1996), regarding whether a defendant=s right to an independent blood test is violated when the police interfere with the defendant=s 2

7 opportunity to obtain an independent test. Fifth, Smallridge conflicts with Cardenas v. State, 867 So. 2d 384 (Fla. 2004), regarding the application of the harmless error standard. Finally, Smallridge conflicts with Hoffert v. State, 559 So. 2d 1246 (Fla. 4th DCA 1990), regarding the prejudicial impact of gruesome photographs that have little relevance to the issues at trial. E. JURISDICTIONAL STATEMENT. The Court has discretionary jurisdiction to review a decision of a district court that expressly and directly conflicts with a decision of this Court or another district court on the same point of law. See Art. V, ' 3(b)(3), Fla. Const.; Fla. R. App. P (a)(2)(A)(iv). F. ARGUMENT AND CITATIONS OF AUTHORITY. 1. Conflict with Gerds. Smallridge held that the DUI manslaughter standard jury instruction was not erroneous despite the fact that the instruction did not mirror the elements set forth in the DUI manslaughter statute. At the time of the alleged offense, section (3), Florida Statutes (2001), provided that a defendant is guilty of DUI manslaughter if the defendant operates a vehicle and A[w]ho, by reason of such operation, causes... [t]he death of any human being.@ (Emphasis added). Over objection, the trial court in Petitioner=s case told the jury that Petitioner was guilty if he caused or contributed to the cause of the death of the victims. Smallridge recognized that in State v. Hubbard, 751 So. 2d 552, 566 (Fla. 1999), Justice Anstead pointed out the conflict between the standard jury instruction and statutory elements of the offense. 3

8 Nevertheless, Smallridge rejected Justice Anstead=s reasoning, holding that Justice Anstead=s opinion was somehow rejected by the majority in Hubbard. See Smallridge, 904 So. 2d at Smallridge is in conflict with opinions from this Court regarding the requirement that a jury instruction must correctly state the elements of the criminal offense. AWe have long held that >[i]t is an inherent and indispensable requisite of a fair and impartial trial... that a defendant be accorded the right to have a Court correctly and intelligently instruct the jury on the essential and material elements of the crime charged....=@ State v. Delva, 575 So. 2d 643, 644 (Fla. 1991) (quoting Gerds v. State, 64 So. 2d 915, 916 (Fla. 1953)). See also Gross v. State, 765 So. 2d 39, 47 (Fla. 2000) (AUnquestionably, a defendant is entitled to have the trial court properly instruct the jury on the essential and material elements of the charged crime.@); Chicone v. State, 684 So. 2d 736, 745 (Fla. 1996) (AA defendant has the right to have a court correctly and intelligently instruct the jury on the essential and material elements of the crime charged....@). A[T]he legislature is vested with the authority to define the elements of a crime... 1 The First District=s analysis on this point is flawed, as it cannot be said that this Court rejected Justice Anstead=s view simply because the majority did not incorporate Justice Anstead=s view into the analysis of the majority=s opinion. The more likely explanation is that the subject of Justice Anstead=s opinion was not the issue before the Court (the issue in Hubbard was whether the defendant was entitled to a special instruction containing a negligence element, see 751 So. 2d at 553) and the Court generally does not address issues that are not squarely presented. If the First District=s reasoning was correct, then all concurring opinions would be de facto dissenting opinions simply because the opinions were not adopted by the majority. 4

9 Chicone, 684 So. 2d at 741. Courts must construe statutes according to their plain meaning. See St. Petersburg Bank & Trust Co. v. Hamm, 414 So. 2d 1071, 1073 (Fla. 1982) (AWhile legislative intent controls construction of statutes in Florida, that intent is determined primarily from the language of the statute. The plain meaning of the statutory language is the first (citations omitted). Applying these principles to Petitioner=s case, it is clear that at the time accident, the plain language of section (3) only punished conduct that caused the death of another. As Justice Anstead pointed out in Hubbard, Athe standard jury instruction does deviate from the statute... in a most significant way.@ 751 So. 2d at 566 (Anstead, J., specially concurring). Justice Anstead concluded that: the instruction modifies the straightforward causation provision in the statute by adding the alternative Aor contributed to the cause@ even though that language is not in the statute. This appears to greatly expand the reach of this penal statute. Id. Petitioner further notes that the identical issue presented in this case was recently considered by the Indiana Supreme Court in Abney v. State, 766 N.E.2d 1175 (Ind. 2002), wherein the court concluded that Acontribution@ is insufficient to prove DUI manslaughter. Petitioner requests the Court to grant review to resolve the conflict between Smallridge and Gerds and other similar cases requiring that jury instructions mirror the elements set forth in a criminal statute. 2. Conflict with Carlisle. Shortly after Justice Anstead=s opinion in Hubbard (and after the offenses in Petitioner=s case), the Legislature amended the DUI 5

10 manslaughter statute to add the Aor contribute to the language. See Smallridge, 904 So. 2d at 603 n.1. However, Smallridge held that Athe amended language was added simply to clarify preexisting legislative Id. This holding conflicts with this Court=s opinion in Carlisle v. Game & Fresh Water Fish Comm=n, 354 So. 2d 362, 364 (Fla. 1977), wherein the Court held Awhen a statute is amended, it is presumed that the Legislature intended it to have a meaning different from that accorded to it before the amendment.@ If Smallridge had properly construed the 2002 amendment as giving section (3) a different meaning than had existed prior to the change, as required by Carlisle, then the First District would have been required to find that the jury instruction given in Petitioner=s case deviated from the plain language of the statute in effect at the time of the offenses. Petitioner requests the Court to grant review to resolve the conflict between Smallridge and Carlisle. 3. Conflict with Eversley. In Hubbard, Justice Anstead cited to Eversley v. State, 748 So. 2d 963, (Fla. 1999), wherein this Court explained that in criminal cases, in order to establish the causation element, the State must establish that the defendant=s conduct was at least a Asubstantial factor@ in bringing about the relevant harm. 2 Pursuant to Eversley, mere contribution (which, as Justice Anstead explained in 2 The Asubstantial factor@ test applies to cases involving concurring causes (i.e., the Camaro and Petitioner=s Jeep). See Loftin v. Wilson, 67 So. 2d 185, 191 (Fla. 1953) (as early as 1953, the Court recognized that in order to be the Acause@ of an event, the defendant must be a Asubstantial factor in bringing it about@) (emphasis added); Stahl v. Metropolitan Dade County, 438 So. 2d 14, (Fla. 3d DCA 1983) (applying 6

11 Hubbard, could be established by showing that a defendant was merely 1% at fault) is not sufficient to prove causation in a criminal case B the State must at least prove Asubstantial factor@ causation. But Smallridge upheld the jury instruction given in Petitioner=s case, despite the fact that the instruction required the jury to return a guilty verdict if the jury found that the Petitioner was only 1% at fault - far less than Asubstantial factor@ causation. Petitioner requests the Court to grant review to resolve the conflict between Smallridge and Eversley. 4. Conflict with Unruh. Prior to trial, Petitioner filed a motion to suppress the blood alcohol results that were calculated using the blood seized from him on May 11, As explained in Smallridge, after the accident: Smallridge [] placed a call to his father, an attorney, on his cellular phone, attempting to explain to him what had occurred, and the officers at that point took the phone from him and ended the call. After the blood draw, appellant was placed in the back of a patrol car for another 1-1/2 hours, without access to a telephone.... At the hearing on the motion to suppress, appellant=s father testified that had appellant been allowed uninterrupted telephone access with him, he would have advised his son of his right, provided by section (1)(f)3, Florida Statutes (2001), to obtain an independent blood test. Smallridge, 904 So. 2d at 604. Despite acknowledging the interference by the police, the First District affirmed the denial of Petitioner=s motion to suppress. As explained by Judge Ervin, the reasoning of the majority below ignores this Court=s holding in Unruh v. State, 669 So. 2d 242, 246 (Fla. 1996) that Athe police should not impede arrested Asubstantial factor@ test in a concurring cause case). 7

12 individuals from exerting or accomplishing their statutory of obtaining an independent test. (Emphasis added). Here, the police clearly violated sections (1)(f)3 and (right to counsel), Florida Statutes, by interfering with Petitioner=s right to consult with counsel, which interfered with his right to an independent blood test. The record is undisputed that the police permanently seized his cell phone while he was talking with his lawyer/father before the blood was drawn and, after it was drawn, held him incommunicado for at least 12 hours in a locked police car during this critical stage when exculpatory evidence could have been obtained and preserved before it was lost forever. Petitioner requests the Court to grant review to resolve the conflict between Smallridge and Unruh. 5. Conflict with Cardenas. During Petitioner=s trial, over the objection of defense counsel, the State introduced three blown-up photographs of the dead victims in their car. On appeal, Petitioner claimed that the trial court erred in permitting the State to introduce the blown-up photographs because the photographs were not relevant to any issue in the case and the prejudice caused to Petitioner was amplified due to the fact that the photographs were blown-up. The First District agreed with Petitioner that the photographs had little relevance to the case, but the majority below held that the admission of the photographs was harmless error: Although we consider their admission to be only marginally relevant, we conclude, even if the trial court could be said to have erred in allowing them into evidence, the error met the harmless-error standard.... Other evidence, legally admitted, disclosed that at the time of the accident 8

13 appellant had a blood-alcohol level of more than double the legal limit and had operated his vehicle at a speed of approximately 20 miles an hour or more in excess of the lawful limit. Smallridge, 904 So. 2d at 605. Petitioner submits that Smallridge did not apply the correct harmless error standard. In Cardenas, this Court clearly explained: [W]e have emphasized that the test of harmless error is not a sufficiency-of-the-evidence, a correct result, a not clearly wrong, a substantial evidence, a more probable than not, a clear and convincing, or even an overwhelming evidence test. Harmless error is not a device for the appellate court to substitute itself for the trier-of-fact by simply weighing the evidence. The focus is on the effect of the error on the trier-of-fact. The question is whether there is a reasonable possibility that the error affected the verdict. 867 So. 2d at 395. The First District engaged in a Asufficiency of the evidence@ test when analyzing whether the admission of the blown-up photographs was harmless. The First District did not focus on the effect of the error on the trier-of-fact; rather, the court Asimply weigh[ed] the evidence.@ Instead of focusing on the photographs themselves and analyzing whether the photographs affected the jury, the First District simply cited to Aother evidence@ that allegedly demonstrated that Aappellant had a blood-alcohol level of more than double the legal limit.@ The question was not whether there was Aother evidence@ establishing that Petitioner was driving while intoxicated; the question was whether there is a reasonable probability that the erroneous admission of the blown-up photographs affected the jury=s verdict. Smallridge engaged in the type of review that this Court forbade in Cardenas. Petitioner requests the Court to grant review to resolve the conflict between Smallridge and Cardenas. 9

14 6. Conflict with Hoffert. As Judge Ervin pointed out in his opinion, the analysis in Smallridge regarding the blown-up photographs also conflicts with the Fourth District=s analysis in Hoffert v. State, 559 So. 2d 1246 (Fla. 4th DCA 1990). In Hoffert, the Fourth District considered an identical claim and reversed for a new trial due to the introduction of irrelevant and gruesome photograph of a victim, explaining that Athe danger of unfair prejudice to appellant far outweighed the probative value of the photograph and the state has failed to show the necessity for its admission.@ 559 So. 2d at Petitioner requests the Court to grant review to resolve the conflict between Smallridge and Hoffert. G. CONCLUSION. This case presents several important issues that potentially have an affect on many cases in the State of Florida. The Court has discretionary jurisdiction to review the decision below and Petitioner prays that the Court will exercise its discretion and consider the merits of Petitioner=s arguments. 10

15 H. CERTIFICATE OF SERVICE I HEREBY CERTIFY a true and correct copy of the foregoing instrument has been furnished to: Assistant Attorney General Carolyn J. Mosley Department of Legal Affairs PL01, The Capitol Tallahassee, Florida by mail delivery this 29th day of August, Respectfully submitted, /s/michael Ufferman MICHAEL UFFERMAN Michael Ufferman Law Firm, P.A. 660 East Jefferson Street Tallahassee, Florida (850) /fax (850) FL Bar No Counsel for Petitioner SMALLRIDGE xc: Eric W. Smallridge I. CERTIFICATE OF COMPLIANCE 11

16 Undersigned counsel hereby certifies pursuant to Florida Rule of Appellate Procedure 9.210(a)(2) that the Jurisdictional Brief complies with the type-font limitation. /s/michael Ufferman MICHAEL UFFERMAN Michael Ufferman Law Firm, P.A. 660 East Jefferson Street Tallahassee, Florida (850) /fax (850) FL Bar No Counsel for Petitioner SMALLRIDGE 12