County Criminal Court: CRIMINAL LAW – Jury Trial - Evidence – Jury Questions – In a DUI trial, during jury deliberations, a juror who was a medical doctor asked the court two questions. “Number one, may I use my medical knowledge specifically regarding alcohol levels, degradation of alcohol, et cetera in reaching my personal verdict?  And, two, if asked by other jurors who have learned I'm a doctor, can I share my knowledge with them?”  The trial court’s answer—“You are free to rely upon your own personal knowledge and experience in reaching your verdict and in discussing the case with other jurors.  However, the case must be tried by you only on the evidence presented during the trial in your presence and in the presence of the defendant, the attorneys, and the judge.  Jurors must not conduct any investigation of their own.”—was neither an abuse of discretion nor a misstatement of Florida legal precedent.  It was not an abuse of discretion for the trial court to allow the arresting officer to testify as to his opinion that Appellant was under the influence of alcohol to the extent that his normal faculties were impaired; lay witnesses have been permitted not only to testify as to their observations of a defendant's acts, conduct, appearance and statements, but also to give opinion testimony of impairment based on their observations.    William Allen Armstrong .v State, Appeal No. 08-00081APANO (Fla. 6th Cir.App.Ct. September 4, 2009).  

 

 

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

 

 

WILLIAM ALLEN ARMSTRONG

 

            Appellant,

 

v.                                                                                                                                          Appeal No. CRC 08-00081 APANO

                                                                        UCN: 522008AP000081XXXXCR

 

STATE OF FLORIDA

 

            Appellee.

__________________________________/

 

 

Opinion filed _____________________.

 

Appeal from a judgment and sentence

entered by the Pinellas County Court

County Judge Robert Dittmer

 

Thomas Matthew McLaughlin, Esquire

Attorney for Appellant

 

Timothy F. Sullivan, Esquire

Office of the State Attorney

Attorney for Appellee

 

 

ORDER AND OPINION

 

            PETERS, Judge.

THIS MATTER is before the Court on Appellant, William Allen Armstrong’s, appeal from a conviction, after a jury trial, of Driving Under the Influence, a first degree misdemeanor, in violation of § 316.193 Fla. Stat. (1971).  After review of the record and the briefs, this Court affirms the judgment and sentence.

Factual Background and Trial Court Proceedings

            On October 8, 2007, Deputy Gary Williams of the Pinellas County Sheriff’s Office while on patrol noticed a car had been stopped on the side of the road with its headlights and taillights illuminated for approximately thirty minutes and he stopped to check on the driver.  Deputy Williams walked up to the driver’s door of the parked car and noticed the driver who was the Appellant, William Allen Armstrong, appeared to be sleeping and was fully reclined in the driver’s seat.  The engine of the car was running and the transmission was in park.  The deputy knocked on the window approximately ten times and, getting no response, opened the car door and repeatedly told the Mr. Armstrong to wake up.  Deputy Williams testified that he finally had to physically nudge the Appellant to wake him up and when he awoke, he appeared very confused.   Mr. Armstrong had the distinct odor of an alcoholic beverage on his breath.  He had slurred, mumbled speech.  The deputy asked Appellant for his driver's license, vehicle registration and proof of insurance.  The Appellant pulled out his wallet and a $20 bill and held it out to the deputy.  Deputy Williams explained to Mr. Armstrong that he didn't need his money; he needed his driver's license.  Appellant then pulled out two credit cards along with his driver's license and dropped all three items in his lap.  Finally he handed the deputy his driver's license.  The deputy had to ask two more times for Appellant to produce his registration, and proof of insurance from the glove box of the vehicle. 

Deputy Williams administered field sobriety exercises.  In Deputy Williams’ opinion, the Appellant displayed several clues of impairment during these exercises.  After being read Miranda warnings, the Appellant admitted to drinking four alcoholic drinks approximately an hour earlier.  Deputy Williams testified that the Appellant admitted that he was “a little bit” under the influence of alcohol and he felt a “buzz.”  The deputy never saw the Appellant driving his car but arrested Mr. Armstrong because he was in the driver’s seat with the vehicle running and therefore, in actual physical control of the vehicle.

            After the Appellant was arrested, he was taken to a Central Breath Testing facility where he agreed to perform the sobriety exercises again.  Deputy Williams testified that Mr. Armstrong performed the exercises better at that time, though he still noticed enough clues of impairment to justify arrest.  Approximately two hours after his initial contact with the Appellant, Deputy Williams administered the breath tests which showed a blood alcohol content of .144 and .149.

            The case proceeded to jury trial on October 21, 2008.  During jury selection one potential juror introduced himself as a medical doctor, a surgeon.  Both parties had the opportunity to question the doctor during jury selection.  Neither party exercised a challenge of the doctor.  He was selected as a member of the jury.  During the trial, Deputy Williams was asked, given his training and experience, and his observations of Mr. Armstrong at the scene, did he have an opinion as to whether Appellant was driving under the influence of alcohol to the extent that his normal faculties were impaired?  Over the Appellant’s objection, Deputy Williams was allowed to answer and offer his opinion that Mr. Armstrong was driving while impaired to the extent that his normal faculties were impaired.

            The Appellant called as a witness Ron Bell, an expert in the field of forensic toxicology.  Mr. Bell had performed a retrograde extrapolation which is a calculation that allows one to estimate what a person’s blood and breath alcohol would have been at some point in time other than the time that a breath test was given.  By using the information provided by Mr. Armstrong to the police, Mr. Bell opined that, at the time of the traffic stop, the Appellant’s blood alcohol content was somewhere between .064 to .086 with a linear average of .075. 

During jury deliberations, the juror who was a medical doctor asked the court two questions. “Number one, may I use my medical knowledge specifically regarding alcohol levels, degradation of alcohol, et cetera in reaching my personal verdict?  And, two, if asked by other jurors who have learned I'm a doctor, can I share my knowledge with them?”  Over defense objection and a motion for mistrial, the court answered; “You are free to rely upon your own personal knowledge and experience in reaching your verdict and in discussing the case with other jurors.  However, the case must be tried by you only on the evidence presented during the trial in your presence and in the presence of the defendant, the attorneys, and the judge.  Jurors must not conduct any investigation of their own.  Thank you.”  After deliberating, the jury returned a guilty verdict.

Issues

            There are two issues presented in this appeal.  First whether the trial court erred in its response to the questions of the juror, the medical doctor, during jury deliberations. Second, whether the trial court erred in allowing the arresting officer to testify to his opinion that Appellant was under the influence of alcohol to the extent that his normal faculties were impaired?

Standard of Review

The issues presented in this appeal are subject to an abuse of discretion standard of review.  State v. Hamilton, 574 So2d 124, 126 (Fla. 1991); LaMarca v. State, 785 So.2d 1209, 1212 (Fla.2001).

The Juror’s Question

The first issue is the propriety of the trial court’s response to the juror’s question, not the conduct of the jury during deliberations.  There is no evidence of jury misconduct, of any unauthorized materials in the jury room or that the jury failed to follow the court’s instructions.  Moreover, both parties knew the questioning juror was a medical doctor when they allowed him on the jury.

In addition to the trial court’s response set forth above, the jury instructions given at the conclusion of the trial and provided in writing to the jury, contained the following; from Florida Standard Jury Instruction 3.7, “(i)t is to the evidence introduced in this trial, and to it alone, that you are to look for that proof”, from Florida Standard Jury Instruction 3.10, “(y)ou must follow the law as it is set out in these instructions. If you fail to follow the law, your verdict will be a miscarriage of justice.” and “the case must be decided only upon the evidence that you have heard from the testimony of the witnesses and have seen in the form of the exhibits in evidence and these instructions.”

In considering and addressing the juror’s question, the trial court could only briefly review a Florida case that dealt with a similar juror question and held that while a juror is not required to disabuse his mind of knowledge about the place where the accident occurred, he is not permitted to become a witness in the jury room by imparting such knowledge to other jurors. Edelstein v. Roskin, 356 So.2d 38 (Fla. 3d DCA 1978).  The Edelstein decision contains the following:  “(t)he question particularly asked was whether a juror might become a witness in the jury room. It was the duty of the trial judge to answer this question in the negative and, in so doing, he could properly have reread the Florida Standard Jury Instruction No. 2.2, above referred to.”  Edelstein, 356 So.2d at 39.  In the present case the judge read the applicable portion of that jury instruction, which is now Florida Standard Jury Instruction No. 2.1.

            The trial court’s answer to the juror’s question was neither an abuse of discretion nor a misstatement of Florida legal precedent.  The judge cautioned the jury, “the case must be tried by you only on the evidence presented during the trial in your presence and in the presence of the defendant, the attorneys, and the judge.”  In addition the jury was charged twice in the jury instructions that the case could be decided only upon the evidence introduced in the trial.  There is nothing in the present case that suggests the jury failed to follow the court’s instructions.

Jurors with Specialized Knowledge or Expertise

The unique circumstance of a juror asking the trial court if he can share his professional expertise with other jurors during jury deliberations presents an unusual question that has not been directly addressed by Florida courts.  While not essential to the determination of the present case, this Court will briefly speak to the issue.

Appellant argues People v. Maragh, 94 N.Y.2d 569 (2000), a decision of the highest appellate court in New York, should be adopted.  The Maragh court commented:

A similar, grave potential for prejudice is also present here when a juror who is a professional in everyday life shares expertise to evaluate and draw an expert conclusion about a material issue in the case that is distinct from and additional to the medical proofs adduced at trial. Other jurors are likely to defer to the gratuitous injection of expertise and evaluations by fellow professional jurors, over and above their own everyday experiences, judgment and the adduced proofs at trial. Overall, a reversible error can materialize from (1) jurors conducting personal specialized assessments not within the common ken of juror experience and knowledge (2) concerning a material issue in the case, and (3) communicating that expert opinion to the rest of the jury panel with the force of private, untested truth as though it were evidence.

The justification for this careful but fair rule originates from the awareness that jurors otherwise become “unsworn witnesses, incapable of being confronted by defendant,” and their expertise injects nonrecord evidence into the calculus of judgment which a defendant cannot test or refute by cross-examination.

Maragh, 94 N.Y.2d at 574-575.  This approach would be impractical in Florida. The Florida Evidence Code absolutely forbids any judicial inquiry into emotions, mental processes, or mistaken beliefs of jurors. § 90.607(2)(b), Fla. Stat. (1987). “This rule rests on a fundamental policy that litigation will be extended needlessly if the motives of jurors are subject to challenge. (citation omitted). The rule also rests on a policy ‘of preventing litigants or the public from invading the privacy of the jury room.’” State v. Hamilton, 574 So.2d 124, 128 (Fla. 1991).  New York has no similar statute.

The State argues that the approach taken by the courts of Alaska, Arizona, New Mexico, and Nevada should be adopted.   Simply stated it is:

A juror who has specialized knowledge or expertise may convey their opinion based upon such knowledge to fellow jurors. The opinion, even if based upon information not admitted into evidence, is not extrinsic evidence and does not constitute juror misconduct. However, a juror is still prohibited from relating specific information from an outside source, such as quoting from a treatise, textbook, research results, etc.

Meyer v. State, 119 Nev. 554, 571, 80 P.3d 447, 459 (Nev. 2003); See State v. Mann, 39 P. 3d 124 (N.M. 2002); Arizona v. Dickens, 936 P.2d 468 (Ariz. 1996); Titus v. Alaska, 963 P.2d 258 (Alaska 1998).  This approach is more compatible with Florida Statute § 90.607(2)(b) and Florida case authority addressing the procedural requirements of disputes of alleged jury misconduct.  See Hamilton, 574 So.2d at 126-131.  If the present case required this Court to make a choice, which it does not, we would adopt the holding of the Nevada Supreme Court in Meyer.

Opinion Testimony Concerning Impairment

In general, lay witnesses have been permitted not only to testify as to their observations of a defendant's acts, conduct, appearance and statements, but also to give opinion testimony of impairment based on their observations.  State v. Meador, 674 So.2d 826, 830 -831 (Fla. 4th DCA 1996);  See Cannon v. State, 91 Fla. 214, 107 So. 360, 362 (1926); City of Orlando v. Newell, 232 So.2d 413 (Fla. 4th DCA 1970).

We begin our analysis with the basic proposition that a witness's opinion as to the guilt or innocence of the accused is not admissible. See Glendening v. State, 536 So.2d 212, 221 (Fla.1988) (citing Lambrix v. State, 494 So.2d 1143, 1148 (Fla.1986)); Henry v. State, 700 So.2d 797, 798 (Fla. 4th DCA 1997); Zecchino v. State, 691 So.2d 1197, 1198 (Fla. 4th DCA 1997); Spradley v. State, 442 So.2d 1039, 1043 (Fla. 2d DCA 1983); Gibbs v. State, 193 So.2d 460, 463 (Fla. 2d DCA 1967). Section 90.703, Florida Statutes (1997), which provides that “[t]estimony in the form of an opinion or inference otherwise admissible is not objectionable because it includes an ultimate issue to be decided by the trier of fact,” would appear to allow opinion testimony of the defendant's guilt. However, such testimony is precluded on the authority of section 90.403, Florida Statutes (1997), which excludes relevant evidence on the grounds that its probative value is substantially outweighed by unfair prejudice to the defendant. See Glendening, 536 So.2d at 221. “Any probative value such an opinion may possess is clearly outweighed by the danger of unfair prejudice.” Id. We find “[i]t is clear that error is occasioned where a witness, including a lay witness, is permitted to offer her opinion about the guilt of the defendant.” Zecchino, 691 So.2d at 1198.

Martinez v. State, 761 So.2d 1074, 1079 (Fla. 2000).  It was not an abuse of discretion for the trial court to allow the arresting officer to testify as to his opinion that Appellant was under the influence of alcohol to the extent that his normal faculties were impaired.

Conclusion

This Court finds no error by the trial court. The judgment and sentence of the trial court were lawfully entered and should be affirmed.

IT IS THEREFORE ORDERED that the judgment and sentence of the trial court is affirmed.

            ORDERED at Clearwater, Florida this 4th day of September, 2009.

 

Original opinion entered by Circuit Judges R. Timothy Peters, Michael F. Andrews, & Raymond O. Gross. 

 

 

cc:        Honorable Robert Dittmer

            Thomas Matthew McLaughlin, Esquire

Office of the State Attorney