Anderson v. State

• Decision Date: 16 April 1985
• Docket Number: Nos. 82-1019,83-1664,s. 82-1019
• Parties: 10 Fla. L. Weekly 975 Robert ANDERSON, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 781

467 So.2d 781

10 Fla. L. Weekly 975

Robert ANDERSON, Appellant, v. The STATE of Florida, Appellee.

Nos. 82-1019, 83-1664.

District Court of Appeal of Florida Third District.

April 16, 1985.

Rehearing Denied May 15, 1985.

Bennett H. Brummer, Public Defender and Rory S. Stein, Asst. Public Defender, for appellant.

Jim Smith, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen., for appellee.

Before HUBBART, BASKIN and JORGENSON, JJ.

HUBBART, Judge.

The defendant Robert Anderson appeals from multiple judgments of conviction and consecutive fifteen-year prison sentences entered below on three counts of manslaughter by operating a motor vehicle while intoxicated [§ 860.01, Fla.Stat. (1981) ] after an adverse jury verdict. While this appeal was pending, we relinquished jurisdiction to the trial court to allow the defendant to file and proceed on a post-conviction motion to vacate judgment and sentence pursuant to Fla.R.Crim.P. 3.850; the state appeals from an adverse final order entered by the trial court on this motion after a full evidentiary hearing conducted below. Both appeals have been consolidated, and for the reasons which follow, we affirm on the defendant's appeal and reverse on the state's appeal--thereby leaving intact the judgments of conviction and sentences entered below.

I

Turning first to the defendant's appeal, the sole error urged is the denial of the defendant's motion for judgment of acquittal made at the close of the state's case and renewed at the close of all the evidence. The defendant contends that his statement to the police--in which he admits driving the motor vehicle that caused the deaths in this case--was inadmissible in evidence at trial due to the state's failure to establish an independent corpus delicti of the crimes charged; that without his police statement the state admittedly had no case against him as to those crimes, and that, accordingly, a defense motion for judgment of acquittal should have been granted below. We have held, in effect, that it is proper to challenge the admissibility of a defendant's statement to the police, based on insufficient independent proof of a corpus delicti, on a defense motion at trial for judgment of acquittal. Knight v. State, 402 So.2d 435 (Fla. 3d DCA 1981). The point on appeal, then, centers on the admissibility of the defendant's statement as against a no corpus delicti challenge asserted by the defendant.

The Florida Supreme Court has summarized the controlling Florida law on this subject in State v. Allen, 335 So.2d 823 (Fla.1976), as follows:

"It is a fundamental principle of law that no person be adjudged guilty of a crime until the state has shown that a crime has been committed. The state therefore must show that a harm has been suffered of the type contemplated by the charges (for example, a death in the case of a murder charge or a loss of property in the case of a theft charge), and that such harm was incurred due to the criminal agency of another. This usually requires the identity of the victim of the crime. A person's confession to a crime is not sufficient evidence of a criminal act where no independent direct or circumstantial evidence exists to substantiate the occurrence of a crime. The judicial quest for truth requires that no person be convicted out of derangement, mistake or official fabrication.

This rule obviously does not require the state to prove a defendant's guilt beyond a reasonable doubt before his or her confession may be admitted. Indeed, as this Court has stated before, it is preferable that the occurrence of a crime be established before any evidence is admitted to show the identity of the guilty party, even though it is often difficult to segregate the two. The state has a burden to bring forth 'substantial evidence' tending to show the commission of the charged crime. This standard does not require the proof to be uncontradicted or overwhelming, but it must at least show the existence of each element of the crime. The state's burden of proof 'beyond a reasonable doubt' is a requirement to establish the defendant's guilt, not to authorize admission of his confession."

Id. at 825 (footnotes omitted). See also Ruiz v. State, 388 So.2d 610, 611 (Fla. 3d DCA 1980); McQueen v. State, 304 So.2d 501, 502 (Fla. 4th DCA 1974).

In the instant case, the state presented substantial direct and circumstantial evidence, apart from the defendant's statement, establishing the corpus delicti of the crime as charged, to wit: manslaughter by operating a motor vehicle while intoxicated, thereby rendering the defendant's statement to the police admissible in evidence. The state's evidence established that a truck, traveling south on a busy street at a high rate of speed in Miami, ran a stop sign at an intersection; that the truck struck a car traveling east in the intersection, causing the car to strike another car and killing the driver of the first car; that the truck took no evasive action prior to impact; that all three persons in the truck were thrown out as a result of the impact; that the defendant was found unconscious alongside the driver's side of the truck, and the other two occupants were found dead in front of the truck; that beer cans were strewn on the ground around the truck, and several more beer cans and a vodka bottle were found lying inside the truck; and that the defendant was taken to the hospital where a blood sample was taken from him two hours after the accident indicating a blood alcohol level of .22.

First, as to the manslaughter count involving the death of the driver of the first car struck by the "death truck," plainly there was abundant evidence, apart from the defendant's statement, establishing a corpus delicti of the crime charged. Clearly, this driver was killed due to the criminal agency of another by someone who was driving the "death truck" in an intoxicated state. The manner in which the truck was driven to the point of impact, plus the beer cans and vodka bottle later found in and around the truck, clearly show this. It was, of course, unnecessary to establish, apart from the above statement, that the defendant was the guilty party--i.e., the driver of the "death truck"--in order to lay a predicate for the admission of this statement. State v. Allen, 335 So.2d at 825. Second, as to the remaining two manslaughter counts involving the deaths of the two occupants in the "death truck," the question is closer and more complicated; ultimately, however, we think the evidence was sufficient, apart from the defendant's statement, to establish a corpus delicti of these crimes as well. As to these deaths, it was essential to show on each count that the person allegedly killed was not the driver of the "death truck," for if he was, there would be no crime committed as the person allegedly killed would have merely killed himself. Here the evidence is substantial that in all likelihood neither of these occupants were, in fact, driving the "death truck," and did not kill themselves, because their bodies were found in front of the truck after the accident; the defendant, by way of contrast, was found lying near the driver's side of the truck. This shows that the defendant most likely had been driving the truck and that his two dead companions had not. Compare County of Dade v. Pedigo, 181 So.2d 720 (Fla. 3d DCA), cert. denied, 188 So.2d 817 (Fla.1966) (defendant in an intoxicated state found leaning against car involved in an accident held sufficient showing of a corpus delicti in a DUI prosecution to admit defendant's statement that he was the driver of the said car). Moreover, there was abundant evidence, as indicated above, that the "death truck" had been driven to the point of impact by someone in an intoxicated state. The trial court, therefore, committed no error in admitting the defendant's statement in evidence on all three manslaughter counts and in denying defense motions for judgment of acquittal. See State v. Allen, supra.

II

Turning next to the state's appeal, the trial court granted the defendant's motion to vacate judgment and sentence under Fla.R.Crim.P. 3.850 on the ground that the defendant was not afforded effective assistance of counsel by his retained trial counsel below. The court reached this conclusion solely because the defense counsel did not properly object to, and failed to move for a mistrial, based on certain inflammatory comments made by the prosecuting attorney in his opening statement and closing argument to the jury. ¹ The court reasoned, in essence, that these comments were improper and highly prejudicial, that they likely affected the outcome of the case, and that the state had failed to rebut this showing in any way. The court therefore concluded that "the [d]efendant has met all four prongs of the test for ineffective assistance of counsel laid out in Knight v. State, 394 So.2d 997 (Fla.1981)," and granted the defendant's motion to vacate. ² We disagree and reverse.

A

One of the four essential elements under Knight which the defendant must prove in order to establish a claim of ineffective assistance of counsel, as a ground for collateral attack relief under Fla.R.Crim.P. 3.850, is stated as follows:

"Second, the defendant has the burden to show that [counsel's] specific omission or overt act was a substantial and serious deficiency measurably below that of competent counsel. As was explained by Judge Leventhal, in DeCoster III: 'To be "below average" is not enough, for that is self-evidently the case half the time. The standard of shortfall is necessarily subjective, but it cannot be established merely by showing that counsel's acts or omissions deviated from a checklist of standards.' 624 F.2d at 215."

Knight v. State, 394 So.2d at 1001.

The United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), has laid down a virtually identical standard--see Jackson v. State, 452 So.2d 533 (Fla....