County Criminal Court: CRIMINAL LAW- Jury trial/evidence- New trial- trial court's failure to apply the correct legal standard to a motion for new trial is a legal error subject to de novo review- not clear whether or not the trial court concluded the verdict was against the weight of the evidence- cause must be reversed and remanded to the trial court to reconsider the weight of the evidence-affirmed in part, reversed in part, remanded. Walker v. State, No.04-02615CFAES (Fla. 6th Cir. App. Ct. February 15, 2005 ).

 

 

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA, IN AND FOR PASCO COUNTY

APPELLATE DIVISION

 

 

WILLIAM WALKER,

 

v. CASE NO: 04-02615CFAES

 

STATE OF FLORIDA

____________________/

 

 

County Judge Robert P. Cole

 

Joy K. Goodyear, Esq.

Attorney for Appellant

 

Office of the State Attorney

 

 

ORDER AND OPINION

 

This matter came before the court on defendant William Walker's appeal from a judgment and sentence entered by the Pasco County Court. Appellant claims that the trial court committed reversible error by denying defense counsel's motion for judgment of acquittal, allowing Deputy Jones to testify that Mr. Walker was under arrest on another charge, and denying the motion for new trial. The state failed to file an answer brief. This court has jurisdiction. Fla. R. App. P. 9.030(c). We find only the denial of Motion for New Trial to have merit, and reverse and remand the case back to the trial court to reconsider the manifest weight of the evidence.

Appellant was arrested and charged with DUI. Prior to trial the state advised the judge that appellant had already pled to a companion possession of cocaine case. The state was concerned because the arresting officer never gave a field sobriety test to appellant. The arresting officer told the prosecutor that he did not conduct the tests because by the time he arrived on the scene, the defendant was already under arrest for the possession of cocaine. The state was concerned that the defense would use the fact that no field sobriety tests were conducted against the state when in fact, the test was not conducted because defendant was already under arrest for felony possession of cocaine. The judge recognized that if the defense questioned the officer, as to why he did not conduct the field sobriety tests, the truthful answer would be because defendant was under arrest for felony possession of cocaine. The judge acknowledged that he could not preclude the defense from asking the officer about the tests, but also did not want to unduly prejudice the defendant. The judge suggested that the officer tell the jury that he did not give him the field sobriety tests because he had already been arrested on another charge; not because he had been arrested for possession of cocaine, which is what he would testify to. The judge advised that he would instruct the jury that they are not to be concerned about the arrest on the other charge and that they are only going to be concerned with DUI, stating, "the state has to either prove DUI or not prove it." The judge told defense counsel that it depended on the questions he asked. Defense counsel stated "Okay. Well, I agree with you on that your honor."

Deputy Scott Ramer testified that while on routine patrol, at approximately 6:45 PM, he observed a red Chevy pickup truck traveling northbound on US 98 with no tail lights on the vehicle. He testified that he activated his lights and conducted a traffic stop on the vehicle. The vehicle pulled over between a half a mile and a mile from when he first turned on his lights and where the vehicle stopped. Ramer testified that he made contact with appellant and identified himself. He asked appellant if he knew why he was stopped and appellant responded that he was having trouble with his vehicle and that he thought it was because his taillights were out. Ramer testified that at time, when appellant started talking to him, he detected an odor of an alcoholic beverage coming from his person. He also testified that appellant's eyes were bloodshot, his face was somewhat flushed, and his movements were slightly uncoordinated. He testified that based on his training and experience, he believed these were possible indicators of impairment. Ramer then called the STEP unit to come to the scene, which he testified took approximately 20 to 25 minutes to arrive. On cross examination, Ramer testified that he did not recall observing appellant running off the road, weaving, speeding, going out of his lane, or 'possibly' hitting another vehicle.

Deputy Michael Jones testified that he is assigned to the STEP unit, ("Selected Traffic Enforcement") which primarily involves working with DUI's and traffic offenses. He explained that he was called out to U.S. 301 and Jordan Road at 6:45 PM on January 25, 2004. He made contact with the defendant and stated that when he first spoke with him, he detected an odor of an alcoholic beverage emitting from his person, and noted his eyes to be bloodshot. He testified that he asked appellant how much he had to drink, and appellant admitted drinking two beers. After speaking with appellant, he read him implied consent and requested that he submit to a lawful breath test. Appellant agreed to the breath test and at that point, he was transported to Land O'Lakes jail. Jones testified that the first breath test was conducted at 7:59 PM and was .077 and the second breath test was conducted at 8:02 PM and was .081. Based on his observations of appellant and his breath test results, he placed appellant under arrest. His Miranda warnings were read and he signed a statement acknowledging his Miranda rights. After the breath test, Jones conducted a Breath Testing Report. Appellant admitted that he was driving a vehicle, but stated that he was not drinking. When asked what time he started drinking, he replied '"don't know" and when asked when he stopped drinking he replied "5:00 PM."

On cross examination Jones was asked if he were to stop somebody, and smelled alcohol on their breath and observed bloodshot, watery eyes, would he ask them to consent to perform field sobriety exercises. Jones said that he would because that assists him in determining probable cause. He was then asked if he had appellant perform the exercises and he said that he did not. He acknowledged that he had appellant take the breath test 1 hour and 15 minutes after the stop. Jones explained that the legal limit in the state of Florida is a blood alcohol content greater than .080 and that anything under that, up to .50 is legally impaired. Jones admitted that appellant's first BAC was .077 and his second was .081; both which were taken an hour and 15 minutes after the stop. The deputy testified that he had no way of knowing what appellant's blood alcohol content was when he was driving.

After cross examination, the prosecutor argued that since the defense brought up the issue of the field sobriety tests, he was then entitled to give some sort of explanation as to why they were not done here. The prosecutor requested that he be allowed to ask the deputy why he did not perform the tests, as the court previously discussed. The defense objected, arguing that they did not open the door because they did not ask the deputy why he didn't have the defendant perform the tests only whether he had appellant perform the field sobriety tests. The court allowed the state to question Jones on redirect concerning the field sobriety tests.

The state asked why the tests were not conducted and Jones replied "prior to my arrival, Mr. Walker had already been placed under arrest for another charge" and was still in handcuffs.

The Judge then stated "Ladies and gentlemen, what you need to understand, it's been mentioned by Deputy Jones that Mr. Walker had been arrested on something else. Now, the fact that the defendant was arrested for a crime other than DUI, the DUI we're here for today, should not concern you, nor should you consider that other arrest as any indication or evidence of guilt of DUI. . . ."

The prosecutor asked "could you have conducted the field sobriety tests while the defendant was in handcuffs" and Jones said that he could not because "that is an unfair assessment of somebody. Besides--once they're handcuffed behind their back, if they fall, they have no way to catch themselves, or protect themselves from harm." The deputy then explained why he made the decision not to conduct the tests. He stated first, the civil liability, in case somebody got hurt, and second, once a person is placed under arrest, their flight instinct may kick in. Deputy Jones also testified that since the time he came into contact with appellant, he did not see him drink any beverages nor did he observe any open containers in the vehicle. There were no further objections placed on the record at any time by the defense other than the earlier objection during argument.

On re-cross, defense counsel asked if appellant could have performed the tests with the handcuffs off and the deputy said that he could. Counsel asked if appellant was fleeing to elude and the deputy stated that he was not; counsel also asked if appellant was cooperative and Deputy Jones stated that he was. When asked if he could have performed the tests in the 'sally port' area of the jail, Jones said he could not because of the traffic.

The state rested and the defense made a Motion for Judgment of Acquittal which was taken under advisement.

A Motion for New Trial was heard on June 8, 2004, at which time the court addressed the Motion for Judgment of Acquittal. The court stated:

Well, let me say this: You know, I was very surprised that the jury came back . . . with a guilty verdict, especially considering the fact that the officers testified that they couldn't give him field sobriety tests because he was in custody on something else, which, in my mind, was bologna. The problem is, Mr. Walker's point of view, I was not on the jury to make those decisions. He also had, I believe, at least, one of his blows that was over the legal limit. But I believe under the case law that the case properly went to the jury. "

 

The Motion for Judgment of Acquittal was denied. The defense then argued a Motion for New Trial, arguing that the jury totally disregarded the evidence or lack of evidence. The court denied the Motion for New Trial, stating that it felt that there was enough evidence to go to the jury and that it was up to the jury to decide what the facts are. Specifically, the court stated:

Well, I felt personally that there was not enough--well, I did feel that there was enough evidence to go to the jury and I let it go to the jury and the jury reached a verdict adverse to Mr. Walker's position.

This particular case is troubling on the facts. But the problem, from your point of view, is it's up to the jury to decide what the facts are. It's up to me to decide what the law is. So the motion for new trial is denied.

 

***

 

Don't get me wrong, this case was . . . when an officer gets up on the stand and says that he couldn't give this guy field sobriety tests because he was in the back of the cruiser on another charge is absolute bologna. The problem is, I am not going to substitute myself for what the jury said. They decide what the facts are. I don't.

Appellant raises three issues for review (1) the trial court committed reversible error by allowing Deputy Jones to testify that Mr. Walker was under arrest on another charge; (2) the trial court erred in denying defense counsel's Motion for Judgment of Acquittal; and (3) the trial court erred in denying the Motion for New Trial.

This Court finds that the trial court did not error in allowing the officer to testify that appellant was under arrest on another charge. In fact, this Court finds that the trial judge handled the issue masterfully. The judge made clear at the outset, that if defense counsel asked about the field sobriety test, the state would have an opportunity to provide an explanation as to why it was not requested by the officer. Here, defense counsel opened the door by asking the officer if he had appellant perform the exercises. The judge permitted the state to ask why it was not performed and the officer simply stated that appellant had been placed under arrest for another charge and was still in handcuffs. The trial court then provided the jury with a curative instruction. Accordingly, there was no error.

This Court also finds that the trial court did not error in denying appellant's Motion for Judgment of Acquittal. A motion for judgment of acquittal should be granted in a circumstantial evidence case if the state fails to present evidence from which the jury can exclude every reasonable hypothesis except that of guilt. Orme v. State, 677 So.2d 258, 262 (Fla.1996). In this case, the Court denied appellant's Motion for Judgment of Acquittal, relying on the holding in Haas v. State, 597 So. 2d 770 (Fla. 1992), which stated that properly obtained test results reflecting blood alcohol level of 0.10 [now 0.08] or more, standing alone, constitutes circumstantial evidence upon which the finder of fact may, but is not required to, convict accused drive of DUI either by impairment or by virtue of the blood alcohol level. See also Florida Statute 316.1934(2) which provides that a breath alcohol level of 0.08 or higher is prima facie evidence that the person was under the influence of alcoholic beverages to the extent that his or her normal faculties were impaired. Here, appellant had a blood alcohol level of .077 and .081. Thus, the trial court did not error in denying the Motion for Judgment of Acquittal.

However, with regard the issue of appellant's Motion for New Trial, this Court finds that this cause must be reversed and remanded because it is not clear whether or not the trial judge applied the proper standard. Although appellate courts generally review a trial court's ruling on a motion for new trial based upon an abuse of discretion standard, a trial court's failure to apply the correct legal standard to a motion for new trial is a legal error subject to de novo review. Geibel v. State  817 So.2d 1042, 1044 -1045 (Fla. 2d DCA 2002). In Geibel, the Court stated

"although the trial judge was an experienced jurist who may have applied the proper standard, we are unable to establish whether he applied the correct standard from his oral pronouncement, particularly in light of his comment that he found no "legal basis" to support the motion. We emphasize that a trial court is not compelled to use "magic words" when ruling on a motion for new trial, but the ruling should demonstrate that the proper standard was applied to the motion."

 

Id. at 1045. The Court reversed and remanded the case back to the trial court because they it was not clear if the trial court applied the proper standard. The Court stated "[i]f the trial court concluded the verdict was against the manifest weight of the evidence presented, it should grant Mr. Geibel's motion for new trial. If the trial court concludes the verdict is not against the manifest weight of the evidence, it may again deny the motion and enter a new judgment and sentence accordingly." Id. at 1044 -1045. Similarly, in this case, the trial court stated:

This particular case is troubling on the facts. But the problem, from your point of view, is it's up to the jury to decide what the facts are. It's up to me to decide what the law is. So the motion for new trial is denied.

 

***

 

Don't get me wrong, this case was . . . when an officer gets up on the stand and says that he couldn't give this guy filed sobriety tests because he was in the back of the cruiser on another charge is absolute bologna. The problem is, I am not going to substitute myself for what the jury said. They decide what the facts are. I don't.

 

 

Accordingly, because it is not clear to this Court whether or not the court concluded the verdict was against the weight of the evidence, this cause must be reversed and remanded to the trial court to reconsider the weight of the evidence.

 

Affirmed in part; reversed in part; and remanded

DONE AND ORDERED in Chambers at New Port Richey, Pasco County, Florida this __ day of February, 2005.

_________________________

W. Lowell Bray, Circuit Judge

Primary Appellate Judge

 

__________________

Daniel D. Diskey

Circuit Judge

 

______________________

Stanley R. Mills

Circuit Judge

 

 

Copies to:

 

Joy K. Goodyear

Office of the Public Defender

 

Office of the State Attorney