County Criminal Court: CRIMINAL PROCEDURE --- Prosecutorial comment --- Prosecutorís comments did not lower the burden of proof required to convict the defendant or interject personal opinion that defendant lied to his expert witness. Judgment and sentence affirmed. Daniels v. State, No. CRC 06-67 APANO, ( Fla. 6th Cir.App.Ct. May 27, 2008).

 

 

 

NOT FINAL UNTIL TIME EXPIRES FOR REHEARING

AND, IF FILED, DETERMINED

 

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA IN AND FOR PINELLAS COUNTY

 

 

STEPHEN F. DANIELS

 

††††††††††† Appellant,

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Appeal No. CRC 06-67 APANO

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† UCN522006AP000067XXXXCR

v.

 

STATE OF FLORIDA

 

††††††††††† Appellee.

__________________________/

 

Opinion filed _________________.

 

Appeal from a judgment and sentence

entered by the Pinellas County Court

County Judge Paul A. Levine

 

Noelle E. Festa, Esquire

Assistant State Attorney

 

Ryan T. Truskoski, Esquire

Attorney for appellee

ORDER AND OPINION

 

††††††††††† (J. Bulone)

†††††††††††

††††††††††† THIS MATTER is before the Court on the defendant, Stephen Danielís, appeal from a judgment and sentence entered by the Pinellas County Court. After reviewing the briefs and record, this Court affirms the judgment and sentence.

††††††††††† A police officer saw the defendant speeding --- 60 m.p.h. in a 35 m.p.h. zone --- so he made a traffic stop. The officer noticed vomit on the side of the defendantís car, and saw the defendantís eyes were glassy and watery, and that there was an odor of alcohol on the defendantís breath. The defendant was asked to do field sobriety exercises, and in the opinion of the officer the defendant did not perform them well. He was taken to the police station, where he blew a .098 and .102 on the intoxilyzer machine.

††††††††††† Following a three-day jury trial, the defendant was convicted of DUI. He is appealing that conviction, claiming several instances of State misconduct deprived him of a fair trial.

††††††††††† First, the defendant claims the prosecutor misstated the definition of reasonable doubt in closing argument in such a way that it lowered the burden of proof. Just before the State finished its closing argument, while discussing reasonable doubt, the prosecutor said:

††††††††††† Is it reasonable to believe that he was guilty? Could you imagine that

††††††††††† heís not guilty? Maybe. Could you speculate that heís not guilty? Maybe,

††††††††††† but thatís not the standard. Itís reasonableness. (P. 602 of the trial transcript.)

 

As pointed out by the State, however, the prosecutor also previously told the jury:

 

††††††††††† Reasonable doubt; itís not a possible doubt. Itís not a speculative

††††††††††† doubt. Is it reasonable is the question you should ask yourselves.

††††††††††† Is it reasonable to believe that this man who had vomited while

††††††††††† driving and failed the field sobriety exercises and blew over the

††††††††††† legal limit, is it reasonable to believe that with those three things

††††††††††† he was impaired? (P. 595 of the trial transcript.)

 

In addition, the prosecutor previously told the jury:ďItís our burden to prove that heís impaired.Ē(P. 597 of the trial transcript.) And, that ďit is solely the Stateís burden in this case. Solely our burden to show you that Mr. Daniels was impaired; just impaired on that night.Ē(P. 601 of the trial transcript.) When viewed fully and in proper context, this Court agrees with the trial court that the comment was not improper. It was not error for the trial court to overrule the objection.

††††††††††† Moreover, any possible misunderstanding was cured by the trial court when it gave its instructions to the jury. The trial court clearly instructed the jury to presume that the defendant was innocent, and that the presumption stayed with the defendant as to each material allegation ďunless it has been overcome by the evidence to the exclusion of and beyond a reasonable doubt.Ē (P. 604 of the trial transcript.) The trial court further instructed the jury that:

††††††††††† The defendant is not required to present evidence or prove

††††††††††† anything. Whenever the words ďreasonable doubtĒ are used,

††††††††††† you must consider the following: a reasonable doubt is not

††††††††††† a possible doubt, a speculative, imaginary or forced doubt.

††††††††††† Such doubt must not influence you to return a verdict of not

††††††††††† guilty if you have an abiding conviction of guilt. On the other

††††††††††† hand, if after carefully considering comparing and weighing

††††††††††† all the evidence there is not an abiding conviction of guilt, or

††††††††††† if having a conviction, it is one which is not stable, but one

††††††††††† which waivers and vacillates, then the charge is not proved

††††††††††† beyond every reasonable doubt and you must find the

††††††††††† defendant not guilty because your doubt is not reasonable.

††††††††††† (P. 605 of the trial transcript.)

 

This instruction, read in conjunction with the allegedly improper comment and the rest of the Stateís closing argument, demonstrates to this Court that Danielsí case was not prejudiced by the comment. The comment did not lower the burden of proof.

††††††††††† Second, Daniels claims the prosecutor interjected his own personal opinion that the defendant lied. During closing argument the prosecutor stated:

††††††††††† So these statements that Mr. Bell (the defendantís expert witness, testifying

††††††††††† that based upon what he drank that night the defendant might not have been ††††††† impaired) had to rely on, and I submit to you Mr. Bell is a very, very, credible †††††††††† witness, a very credible witness, if the data is accurate. If the data is accurate, and ††† you have to take that into consideration. Is this man going to give the data thatís ††††††††††† going to make him impaired at the time of driving? No. Use your common sense. Heís not going to give, well yeah, I was drinking for about six hours earlier, ††††††††††† and I had about 15 shots. Put that into your little equation and letís see what that ††††††† comes out to. Was I over or not? (P. 598-9 of the trial transcript.)

 

Defense counsel objected, arguing that the State had shifted the burden to the defendant. The trial court overruled the objection, reasoning that the prosecutor was ďjust trying to say that if the evidence was different, if he had drank a lot, he wouldnít have admitted that to Ron Bell.Ē (P. 599 of the trial transcript.)

††††††††††† This Court agrees with the trial court. The comments were merely argument during closing. The State was only pointing out that the conclusions made by the defendantís expert witness relied upon information given to the expert by the defendant, and that the defendant had motive not to be forthcoming with negative information because the results of the calculation would change. The Stateís comments did not, as argued to the trial court by defense counsel, shift the burden of proof in any way to the defendant.

††††††††††† Finally, Daniels claims the State switched one report for another and placed the wrong report into the record. The record shows that the State introduced into evidence exhibit number 3. The witness authenticating the document said that it was a report of an annual FDLE inspection conducted April 22, 2003 on the intoxilyzer used by the defendant. Stateís exhibit 3, however, is actually dated December 8, 2003. The document does appear to be an FDLE inspection report of the intoxilyzer used by the defendant. What, if any, significance this discrepancy on the date has is unclear, as the defendant was arrested and given the breathalyzer on Feb. 28, 2004. The mere fact that there is a discrepancy between the testimony and the date appearing on the document does not support the defendantís leap to the conclusion that the State engaged in misconduct. This Court notes that the date for exhibit 2 (the date the intoxilyzer was registered) was April 22, 2003. (See P. 242 of the trial transcript.)

††††††††††† An additional problem is that the error, if any, was not preserved for appellate review. The defendant, while admitting that no objection was made, argues that the error only became apparent after the record on appeal was made. This, however, is not accurate. The record shows that the document was shown to defense counsel during the trial. (See P. 244 of the trial transcript.) Any discrepancy between the testimony and the date appearing on the document should have been noticed then. Moreover, the defendant has not demonstrated that the discrepancy is material, let alone fundamental error. The conviction will not be overturned in this appeal on this issue. If the defendant could not detect the discrepancy until after the trial, any remedy should be pursued in the trial court via a motion for post-conviction relief.

††††††††††† Since the defendant has failed to demonstrate in the record State misconduct, his claim that he did not receive a fair trial is without merit. Accordingly, the conviction is upheld.

††††††††††† IT IS THEREFORE ORDERED that this Court affirms both the judgment and sentence.

††††††††††† (J. Demers, concurring)

††††††††††† Although I concur in the opinion, I write to express my concern with the prosecutorís comment:

††††††††††† So these statements that Mr. Bell (the defendantís expert witness, testifying

††††††††††† that based upon what he drank that night the defendant might not have been ††††††† impaired) had to rely on, and I submit to you Mr. Bell is a very, very, credible †††††††††† witness, a very credible witness, if the data is accurate. If the data is accurate, and ††† you have to take that into consideration. Is this man going to give the data thatís ††††††††††† going to make him impaired at the time of driving? No. Use your common sense. Heís not going to give, well yeah, I was drinking for about six hours earlier, ††††††††††† and I had about 15 shots. Put that into your little equation and letís see what that ††††††† comes out to. Was I over or not? (P. 598-9 of the trial transcript.)

 

While I do not think this is burden shifting, I do think it comes dangerously close to suggesting to the jury that the prosecutor knew something that they did not. The prosecutor needs to be more circumspect in comments made during closing argument.

††††††††††† DONE AND ORDERED in Clearwater, Pinellas County, Florida this _____ day of May, 2008.

 

_____________________________††††††††††††††††††††††††† _______________________

††††††††††† Joseph A. Bulone††††††††††††††††††††††††††††††††††††††††††††††††††††††† David A. Demers

††††††††††† Circuit Court Judge††††††††††††††††††††††††††††††††††††††††††††††††††† Circuit Court Judge

 

 

††††††††††††††††††††††††††††††††††† ______________________________

††††††††††††††††††††††††††††††††††††††††††††††† Cynthia J. Newton

††††††††††††††††††††††† ††††††††††††††††††††††† Circuit Court Judge

 

 

 

cc:††††††† Office of the State Attorney

 

††††††††††† Honorable Paul A. Levine

 

††††††††††† Ryan T. Truskoski, Esquire

 

††††††††††† Stephen F. Daniels