IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
OF THE STATE OF
v. Appeal No. CRC 03-57 APANO
Opinion filed __________________.
Appeal from a judgment and sentence
entered by the Pinellas County Court
County Judge Im
William Bennett, Esq.
Attorney for appellant
Nancy Lawler, Esq.
Assistant State Attorney
MATTER is before the Court on the defendant, Richard Lee’s, appeal from a
judgment and sentence for DUI entered by the
The defendant raises numerous issues in his appeal. Of primary concern to this Court are the comments made by the trial judge and State during the defendant’s trial. First, the defendant claims that the trial court made improper comments in front of the jury, and that his ensuing motion for mistrial should have been granted. The Court notes that the first two alleged improper comments were not objected to. The defendant did, however, object to the third comment. During cross-examination of the officer who maintained the breath test machine and conducted the breath test, defense counsel inquired about possible technical problems with the intoxilyzer. During that line of questioning, the State raised an objection. In ruling on the objection, the trial judge stated: “… but apparently we’re going down this rabbit trail way beyond --- .” R. 158-9. At that point defense counsel interjected and asked for a bench conference. It was granted and a motion for mistrial was made. Defense counsel argued that the judge had implied in front of the jurors that he had done something wrong with his line of questioning. The defendant expands upon that argument in his briefs, complaining that the judge’s comments sent a message to the jury that the questions asked by defense counsel about the maintenance of the intoxilyzer were of little value. Comments from the bench must not convey expressly or inferentially the judge’s opinion of the weight, character or credibility of any evidence presented. Abrams v. State, 326 So.2d 211 (Fla. 4th DCA 1976). Arguably, the judge’s comment in the case at bar did just that.
This Court shall now address the defendant’s claims that the State made numerous improper comments during the trial. Some were objected to and some were not. The most troublesome is the State’s comment during closing argument that: “Is it reasonable that this defense attorney is the first defense attorney in the entire history of DUI’s in Treasure Island to come up with the defense that the machine didn’t work? I’m sure there’s been other challenges to this machine.” R. 241. Defense counsel objected and moved for a mistrial. It was denied. Personal attacks on defense counsel and arguing facts not in evidence are improper. See Knight v. State, 672 So.2d 590 (Fla. 4th DCA 1996). As the defendant points out in his brief, the State was improperly implying that other defense attorneys had previously made challenges to the intoxliyzer breath test results and they were all unsuccessful. There was no evidence to support this. This Court finds that when this comment by the State is combined with the trial judge’s comment, the result is a legitimate belief that the overall effect of the comments was unfairly prejudicial to the defendant. The breath test results and the maintenance of the intoxilyzer were important elements of this case. It cannot be said then that the improper comments that went directly to these issues were harmless beyond a reasonable doubt. For that reason, the defendant is entitled to a new trial. Since this Court has determined that a new trial is warranted, a separate review of the remaining alleged improper comments is not needed.
Having already determined that the judgment and sentence must be reversed, this Court does not have to address the two remaining issues raised by the appellant. Nevertheless, this Court shall review the issues in the belief that a resolution of the issues might be useful in future DUI cases.
The defendant argues that his motion for mistrial should have been granted because the State violated the trial court’s motion in limine prohibiting any references to the defendant’s prior 1981 DUI conviction. The defendant claims that during a showing of the videotape of his field sobriety exercises, he mentioned: “Yeah. That’s the way they do it in St.Pete, man. They ask you to do your ABC’s backwards. Think about that. When you’re sober that’s hard to do.” The defense theory is that this implied that the defendant had a prior DUI and was therefore in violation of the motion in limine. This Court does not agree. It is simply too much of a stretch to find that a member of the jury would have interpreted the defendant’s statement as proof that he had a prior DUI. There is nothing to indicate that his “knowledge” of St.Petersburg DUI procedures had been acquired firsthand during his own DUI case. It was, therefore, proper for the trial court to deny the defendant’s motion for mistrial on that point.
Finally, the defendant argues that
the trial court erred in admitting into evidence the results of his breath
test. He claims that the results should not have been admitted because the
maintenance records of the intoxilyzer machine were insufficient. Evidence of
the scientific predicate is not required if the State enters into evidence a
breath test affidavit that is in compliance with §316.1934(5) Fla.Stat. (2003).
The defendant argues that the affidavit is not in compliance with
§316.1934(5)(e) that requires: “if the test was administered by means of a breath
testing instrument, the date of performance of the most recent required
maintenance on such instrument” must be contained in the affidavit. The
defendant notes that the regulations require two types of maintenance. Rule
that the breath test affidavit does not indicate the last inspection date does
not invalidate the test results, that date can be established by other
evidence. Wright v. Dept. of Highway Safety and Motor Vehicles, 10
IT IS THEREFORE ORDERED that the judgment and sentence is reversed, and this matter is remanded to the trial court for action consistent with this Opinion.
AND ORDERED in Chambers at
James R. Case
Circuit Judge Circuit Judge
John A. Schaefer
cc: State Attorney
William Bennett, Esq.