Behn v. State

• Citation: 621 So.2d 534
• Decision Date: 13 July 1993
• Docket Number: No. 91-1950,91-1950
• Parties: 18 Fla. L. Week. D1609 Clarence BEHN, Appellant, v. STATE of Florida, Appellee.
• Court: Court of Appeal of Florida (US)

Page 534

621 So.2d 534

18 Fla. L. Week. D1609

Clarence BEHN, Appellant, v. STATE of Florida, Appellee.

No. 91-1950.

District Court of Appeal of Florida,

First District.

July 13, 1993.

Nancy A. Daniels, Public Defender, Lynn A. Williams, Asst. Public Defender, for appellant.

Robert A. Butterworth, Atty. Gen., Marilyn McFadden, Asst. Atty. Gen., for appellee.

KAHN, Judge.

Appellant challenges his judgment and sentence for manslaughter by culpable negligence. Section 782.07, Florida Statutes (1989). He asserts, among other things, that the court erred in denying his motion for judgment of acquittal. We reverse the trial court's order denying appellant's motion for judgment of acquittal.

Viewing the evidence and all reasonable inferences in favor of the state, the party against whom the motion for judgment of acquittal was filed, the record reveals that on the morning of August 18, 1989, appellant was driving an unloaded 18-wheel tractor trailer south on Highway 301 in Alachua County. He went through a red light at the intersection of Highway 301 and State Road 26 and struck a car driven by Louis Able going east on State Road 26. The testimony of eyewitnesses Gale Kane and Evelyn Burke establishes that Able delayed before reacting to the green light and pulled out into the intersection only seconds before the collision. Physical evidence at the scene demonstrated that Behn applied his emergency brakes 35 feet before the impact. Reconstruction expert J. Patrick Parrish testified that appellant was 3.9 seconds from the point of impact when the victim's car began pulling out. As a result of the collision, Mr. Able and Gladys Waits, a passenger in the car, died. An officer from the Department of Transportation inspected appellant's truck after the accident and found two brakes on the second axle inoperable and all other brakes except one out of adjustment. He indicated the driver would have been able to tell that the brakes were out of adjustment. Expert Parrish indicated that even if appellant had proper brakes and began braking when he did, there still would have been a collision, although probably not a fatal one. ¹

The state chose to prosecute Mr. Behn under the culpable negligence standard of section 782.07, Florida Statutes (1989), which imposes a greater showing than that required to secure a conviction under the vehicular homicide statute, section 782.071, Florida Statutes (1989). To support the allegations of culpable negligence contained in the information, the state asserted that Behn ran a red light, and that at the time of the accident, Behn was knowingly driving with brakes which were out of adjustment. As we have indicated, the state did, in fact, prove both of these allegations. We conclude, however, that the conduct complained of did not meet the standard required under the manslaughter statute for culpable negligence. The controlling case law indicates that operation with deficient brakes, even when coupled with a traffic infraction, does not rise to the level of criminality required to support a manslaughter conviction as charged under the statute.

Even were we able to conclude that operation of the truck with defective brakes could support the conviction, it appears that the proof presented by the prosecution fails to establish a causal connection between the defective brakes and the fatalities. Mr. Parrish, qualified by the state as an accident reconstructionist, provided detailed information (albeit based upon some inaccuracies, see note 1, supra) concerning the collision itself. He went further, however, and stated that if Mr. Behn had proper brakes and began applying them at the time he actually did, the impact between the truck and Mr. Able's car would have been delayed for a fraction of a second and thus "it would have been an impact of the left front of Mr. Behn to the left rear of Mr. Able, and in that instance, the collision would not have been a fatal one to any of the occupants." The defense neither objected to, nor moved to strike, this testimony. The motion for judgment of acquittal, however, requires us to look at the sufficiency of the evidence.

Nothing in the state's case suggests that Mr. Parrish has expertise in the fields of medicine, physiology, or biomechanics. Nowhere in his testimony does he offer any solid support for the supposition that a delay in the collision ² would have altered the fatal consequences. Such a conclusion, to be valid, would require, at least, knowledge of the dynamics and biomechanics of the human beings involved in the collision.

This court has previously rejected the sufficiency of such unsupported, and unobjected to, medical evidence in a murder prosecution. In Wright v. State, 348 So.2d 26 (Fla. 1st DCA 1977), cert. denied, 353 So.2d 679 (Fla.1977), the testimony of the medical examiner was the only testimony that tended to establish premeditation. In that case, the medical examiner, a qualified physician offered as an expert in the field of forensic pathology, testified that serious injuries had been inflicted by the accused upon the deceased, prior to the ultimate death by suffocation. This court found such evidence to be beyond the competence of the medical examiner to give, and further noted that this testimony was the only evidence of premeditation. The court concluded:

The effect on the verdict of the evidence of the expert here was so obvious and extensive that its admission falls within the definition of fundamental error which this Court may and should review in the interest of justice, regardless of objection at the trial level.

348 So.2d at 31.

In the present case, we conclude that Parrish's opinions concerning the extent of injuries that would have been received by the occupants of Able's car, had Behn's brakes been fully operative, were beyond his competence and should not have been considered in determining whether the state presented sufficient evidence to withstand a motion for judgment of acquittal on the manslaughter charge.

Even assuming sufficient evidence of causation, however, these convictions will not stand.

The facts in White Construction Co., Inc. v. Dupont, 455 So.2d 1026 (Fla.1984), are analogous to the instant case. White Construction Co. owned a CAT 988 loader, weighing some forty tons and standing approximately 22 feet high. The loader's brakes had not been working for some time and White Construction was aware of that fact. The loader proceeded at top speed towards the victim's truck and could not stop. The loader struck the truck and caused the truck to run over the truck driver who was doing some minor repair work on the truck. The truck driver suffered permanent injuries. The jury awarded compensatory and punitive damages to the victim and his wife. This court upheld damages, and the supreme court reversed. The supreme court held:

The evidence in this case showed that the loader's brakes had not been working for some time, and that the petitioners were aware of this fact. Although this evidence would be sufficient to show that the petitioners were negligent, it is not sufficient, as a matter of law, to submit the issue of punitive damages to the jury.

* * * * * *

In Carraway [v. Revell, 116 So.2d 16 (Fla.1959) ] we made it clear that something more than gross negligence is needed to justify the imposition of punitive damages.... In a footnote, we set forth the standard to be met to justify the imposition of punitive damages upon a defendant:

The character of negligence necessary to sustain an award of punitive damages must be of a 'gross and flagrant character, evincing reckless disregard of human life, or of the safety of persons exposed to its dangerous effects, or there is that entire want of care which would raise the presumption of a conscious indifference to consequences, or which shows wantonness or recklessness, or a grossly careless disregard of the safety and welfare of the public, or that reckless indifference to the rights of others which is equivalent to an intentional violation of them.

Id. at 20 n. 12 (citations omitted)

.... Thus, applying the Carraway standard to the facts of the instant case, as we stated above, under no view of the evidence presented here would it be proper to impose punitive damages upon petitioners ...

White Construction Co., Inc. v. Dupont, 455 So.2d at 1028-1029.

Although White Construction Co., Inc. and Carraway were punitive damages cases, they held "that the character of negligence necessary to sustain a conviction for manslaughter is the same as that required to sustain a recovery for punitive damages." Carraway, supra at 22; White Construction Co., Inc., supra at 1028. See...