Allen v. State

• Decision Date: 22 December 1978
• Docket Number: No. EE-105,EE-105
• Citation: 365 So.2d 456
• Parties: Lawrence ALLEN, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 456

365 So.2d 456

Lawrence ALLEN, Appellant, v. STATE of Florida, Appellee.

No. EE-105.

District Court of Appeal of Florida, First District.

Dec. 22, 1978.

William D. Pridgeon, of Scruggs, Carmichael, Long, Tomlinson, Rowcow, Pridgeon, Helpling & Young, Gainesville, E. C. Deeno Kitchen and Thomas M. Ervin, Jr., of Ervin, Varn, Jacobs, Odom & Kitchen, Tallahassee, for appellant.

Robert L. Shevin, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., for appellee.

BOYER, Judge.

Appellant seeks reversal of an adverse judgment and resulting sentence following a jury trial at which the jury returned a verdict of guilty of manslaughter.

In September of 1975 at 1:00 in the morning a collision occurred at an intersection in a residential area of Gainesville. Appellant and one Alderman were in a borrowed Dodge Demon. The other vehicle involved in the accident was driven by the deceased, George Welsch. There were no eyewitnesses to the accident. There was a dispute between appellant and Alderman as to who was driving the Dodge at the time of the accident. Appellant claimed that Alderman was driving while Alderman testified that appellant was driving. After the accident appellant was found in the back seat on the right side and Alderman was in the front seat on the right side. Alderman testified at the trial that appellant had planned to take the car out on Newberry Road and "do it in the top" or "floor it". He further testified that appellant turned North onto Northwest 18th Street and at the first intersection turned the car's "lights off to see if lights were coming in the opposite direction"; that as they approached the second intersection Alderman saw a car coming from the East and yelled appellant's name; that when they went through the first intersection they were traveling approximately 20 miles per hour and that when they went through the second intersection the Dodge was traveling at least 50 or 60 miles per hour. Alderman testified that he did not know whether or not appellant had turned his lights back on and further that to Alderman's knowledge appellant never applied his brakes. Alderman admitted that he had told a police officer, Mike Barber, after the accident that he (Alderman) was the driver of the vehicle and that he had told others the same thing the next day in the hospital. Testimony was adduced from police officers and an F.B.I. agent that on the basis of hair specimens and fingerprints appellant was the driver. There was testimony that appellant and Alderman had drank beer earlier in the evening but there was no testimony that either was intoxicated.

At trial, appellant's attorney was not allowed to elicit testimony from police officer Barber as to Alderman's statements to him that he (Alderman) was the driver of the car at the time of the accident; the trial judge sustaining an objection to that testimony on the basis that it was hearsay. Neither was appellant allowed the benefit of testimony sought to be adduced from one David Boercker, who was called as an expert witness to testify as to the direction that the respective vehicles would move after the collision and the direction that bodies in the vehicles would move in relation to the vehicles they were in. The learned trial judge rejected Mr. Boercker's testimony. At the conclusion of the state's case and again at the conclusion of all the evidence appellant's attorney moved for a judgment of acquittal on the basis that the evidence was insufficient to prove culpable negligence. Both such motions were denied.

Three points are raised on this appeal, the first being appellant's contention that the evidence was...