County Criminal Court: CRIMINAL LAW – Jury Trial/Evidence- Faretta Hearing – trial court did not err in appointing a public defender to represent the defendant without conducting a full evidentiary hearing – trial court has broad discretion in limiting examination of witnesses – prosecution for offense of DUI may be based on two legitimate theories of guilt – sentence supported by competent, substantial evidence.  Judgment and Sentence affirmed.  Julien v. State, No. 03-169 (Fla. 6th Cir. App. Ct. Dec. 17, 2003).

 

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA, IN AND FOR PINELLAS COUNTY

APPELLATE DIVISION

 

JENNI JULIEN,

            Appellant,

 

vs.                                                       CRC01-04282CFANO

 

STATE OF FLORIDA,

Appellee

__________________________/

 

Opinion filed:____________________________

 

Appeal from Order verdict, judgment and sentence Pinellas County Court

County Judge Michael Andrews

 

J. R. Grantham

Attorney for Appellant

 

Marie King,Assistant State Attorney

Attorney for Appellee

 

 

AMENDED ORDER AND OPINION

 

            THIS MATTER is before the Court on the defendant’s appeal of a post jury-trial, verdict judgment and sentence.  After reviewing the briefs and record, this Court affirms the verdict, judgment and sentence.

            The defendant raises five issues on appeal.  First the defendant alleges that the trial court failed to conduct a proper Faretta Hearing at the defendant’s pre-trial conference.  When reviewing a Faretta hearing, the lower court’s ruling will be upheld absent a clear abuse of discretion.  Morris v. State, 683 So.2d 207 (Fla. 3rd DCA 1996).  The defendant argues that the trial court committed reversible error for failing to conduct a full Faretta hearing after allowing her counsel to withdraw.  The record reflects that the defendant’s unequivocal request was to proceed to a jury trial.  While the record does not reflect that the trial court followed all of the procedures outlined in Fla.R.Crim.Pro. 3.111(d) (2), the trial court inquired of the defendant if she was aware of the consequences of self-representation and if she had any legal objection.  The court stated: “Now if you insist upon proceeding on your own, you have the constitutional right to do so.  Otherwise, I would be happy to appoint the Public Defender if you qualify”.  The defendant’s response was: “Okay”.  The court: “Okay, what?  Do you want me to appoint the Public Defender to represent you?”  The defendant: “I don’t know.  Yes.  Yes”.  There was no objection raised by the defendant at the pre-trial hearing or at the trial to the appointment of the Office of the Public Defender, nor did the defendant renew her request to represent herself.  The trial court did not abuse its discretion by appointing the Office of the Public Defender to represent the defendant without a full Faretta Hearing.

            The second issue the defendant raises is the trial court erred in denying the motion in limine and allowing the toxicologist to testify to the results of the drug screen conducted on the defendant’s urine sample.  The standard of review for the trial court’s ruling on a motion in limine is abuse of discretion.  State v. Polak, 598 So.2d 150 (Fla. 1st DCA 1992.

            The defendant argues that the trial court did not conduct a balancing test regarding the prejudicial impact of the urine test versus the relevance of the test results as required under State v. McClain, 525 So.2d 420 (Fla. 1988).  In McClain, the defendant had a .14 percent breath alcohol reading and a positive urinalysis for cocaine.  The question to determine whether the evidence is properly excluded is whether the probative value is substantially outweighed by the danger of unfair prejudice.  In McClain, the court found that since the level of the defendant’s blood alcohol substantially exceeded the figure necessary to raise a presumption of impairment, the unquantifiable trace of cocaine added little to the State’s proof of intoxication.  The balancing test contemplated by McClain is not applicable to the facts in this case.  The defendant’s breath alcohol readings were .064 and .072.  The trial court ruled that that evidence would be allowed because it went to the weight and not the admissibility.  This court is aware of the decision in Bodden v. State, 27 Fla. L. Weekly D 2382, rev. granted, State v. Bodden, 853 S0.2d 1071 (Fla. 2003) which holds that a urine test taken pursuant to the implied consent law, if not approved pursuant to Administrative Procedure Act, is not admissible as a scientific test.  In order for the State to prove the offense of DUI, it must show that either the defendant had a blood alcohol level over .08 percent OR that the defendant was impaired.  Tyner v. State, 805 So.2d 862 (Fla. 2d DCA 2001).  Actual impairment may be established in two ways.  One way is by proof of circumstances without resort to blood alcohol levels.  This proof would consist of evidence such as the driver’s behavior, the odor of an alcoholic beverage, the defendant’s appearance of bloodshot and glassy eyes, the defendant’s performance of the field sobriety tests and the testimony of the defendant.  A guilty verdict will be upheld if the jury was presented with two legitimate theories of guilt.  Reversal is not warranted where the general verdict could have rested on a theory of liability without adequate evidentiary support when there was an alternative theory of guilt for which the evidence was sufficient.  See Mungine v. State, 689 So.2d 1026 (Fla. 1995); Bonine v. State, 811 So.2d 863 (Fla. 5th DCA 2002).  There was sufficient evidence before the jury to sustain the conviction on the alternate theory of actual impairment. 

            The third issue raised by the defendant is that the trial court improperly limited the defendant’s cross examination of two witnesses.  A decision by a lower court to limit cross-examination is not subject to review absent a clear abuse of discretion.  Tompkins v. State, 502 So.2d 415 (Fla. 1986).  A trial judge has broad discretion in placing limitations on cross-examination.  Sanders v. State, 707 So.2d 664 (Fla. 1998).  The defendant argues that the court erred in limiting the cross-examination of Officer Canali.  The defendant was attempting to impeach the witness with a report the witness had not prepared.  The impeachment was improper and the trial court was correct to limit the cross-examination.  The defendant also argues that the trial court erred in limiting the cross-examination of Deputy Haimes.  The defendant was attempting to elicit a statement from the deputy about the defendant’s repeated need to use the restroom.  The trial court sustained an objection as “self-serving hearsay”.  The defendant argues that Husseain v. State, 805 So.2d 1066 (Fla. 3rd DCA 2002) allows the entire statement of the defendant, even portions of the exculpatory statements, under the rule of completeness.  The rule of completeness allows for an out-of-court exculpatory statement to be admitted when a witness has testified to incriminating statements contemporaneously made by a defendant.  Cotton v. State, 763 So.2d 437 (Fla. 4th DCA 2000).  In this case, the testimony by Deputy Haimes did not introduce any contemporaneous incriminating statements by the defendant.  Deputy Haimes testified to the defendant’s repeated requests to use the restroom and that he thought she was delaying taking the breathalyzer.  Even if this Court were to adopt the defendant’s argument, the defendant failed to preserve this issue for appellate review.  The defendant’s trial counsel, whom this Court notes is not appellate counsel, withdrew the question without argument, objection or proffer for the record.  “In order to raise an error on appeal, a contemporaneous objection must be made at the trial level.”  State v. T. G., 800 So.2d 204, 211 (Fla. 2001).  Only if the error is fundamental can the defendant raise the error on appeal in the absence of a contemporaneous objection.  The trial court’s limiting of the cross-examination of the witnesses was not fundamental error.  The trial court did not abuse its discretion in limiting the defendant’s examination of the witnesses.

            The defendant’s fourth issue on appeal is that the trial court erred in denying the Motion for Judgment of Acquittal.  “In reviewing a motion for judgment of acquittal, a de novo standard of review applies.  Generally, an appellate court will not reverse a conviction which is supported by competent substantial evidence.  If after reviewing the evidence in the light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt, sufficient evidence exists to sustain a conviction.”  Pagan v. State, 830 So.2d 792 (Fla. 2002).

            The elements of the offense of DUI are that the defendant was operating a motor vehicle and while driving the defendant’s normal faculties were impaired or that the defendant had a breath alcohol level of .08 percent or higher.  The State may show evidence of impairment by alcohol even when the defendant’s blood alcohol level is below the .08 percent legal limit by showing other evidence of impairment in addition to the presence of the alcohol.  State v. Searcy, 825 So.2d 959 (Fla. 1st DCA 2002).  Impairment may be established by describing a person’s demeanor or conduct.  Hoffman v. State, 743 So.2d 130 (Fla. 4th DCA 1999).  In this case there was uncontroverted evidence that the defendant was operating a motor vehicle.  The testimony of the arresting officer was that the defendant’s eyes were glassy and bloodshot.  The defendant stumbled as she exited the vehicle and had a “hard time standing”.  The deputy testified that the defendant was unable to correctly perform the field sobriety tests.  The second officer testified that the defendant had a distinct odor of alcohol on her breath, that she was argumentative and that her statements to him were inconsistent.  This Court finds that there is competent substantial evidence to support the verdict and judgment and that it cannot reasonably be argued that the trial court erred in refusing to remove this case from the jury.

            The fifth and final issue raised by the defendant on appeal is that the trial court erred in sentencing the defendant by relying upon an out of state driver’s license record and in the trial court’s finding of aggravating factors.  The evidence considered by the trial court in sentencing is subject to an abuse of discretion standard of review.  Mungine v. State, 689 So.2d 1026 (Fla. 1995).  The lower court’s decision will be upheld if the court applied the correct rule of law and the sentence is supported by competent substantial evidence.  State v. Gatzmayer, 780 So.2d 297 (Fla. 2001).  The trial court sentenced the defendant on a fourth misdemeanor DUI based upon the defendant’s certified, faxed driving record from Alaska.  The trial court noted that the driver’s license number on the Florida citation was the same number as on the Alaska driving record.  The driving record matched the defendant’s driver’s license state, number, class, date of birth, race, height and weight.  There was sufficient proof that the records submitted were the defendant’s.  Arthur v. State, 818 So.2d 589 (Fla. 5th DCA 2002).  As to the defendant’s argument that the trial court considered aggravating factors at sentencing, this Court finds that argument without merit.  The trial court received a sentencing recommendation from the State.  Defendant’s counsel and the defendant addressed the court as to the sentence.  The trial court made findings on the record that the defendant had three prior DUI convictions.  There is no indication in the record that the trial court considered the defendant’s refusal to accept a reduced charge or the defendant’s maintaining of her innocence was a basis for the sentence imposed.  There was competent substantial evidence to support the trial court’s sentence.  It is therefore

ORDERED AND ADJUDGED that the verdict, judgment and sentence are affirmed.

DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida on this _________day of ____________________, 2003.

 

 

 

___________________________________

JOHN A. SCHEAFER

Circuit Judge

 

 

 

 

NANCY MOATE LEY

Circuit Judge

 

 

 

 

W. DOUGLAS BAIRD

Circuit Judge