Bonine v. State, 5D00-1717.

• Decision Date: 28 March 2002
• Docket Number: No. 5D00-1717.,5D00-1717.
• Citation: 811 So.2d 863
• Parties: Howard Russell BONINE, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

811 So.2d 863

Howard Russell BONINE, Appellant, v. STATE of Florida, Appellee.

No. 5D00-1717.

District Court of Appeal of Florida, Fifth District.

March 28, 2002.

James B. Gibson, Public Defender, and Rosemarie Farrell, Assistant Public Defender, Daytona Beach, for Appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.

EN BANC

SHARP, W., J.

Bonine challenges his DUI/manslaughter conviction which arose out of an incident in which he struck and killed a motorcyclist with his vehicle. We elect to consider this case en banc to determine whether we should apply the harmless error rule, given the overwhelming evidence of guilt. We conclude that the harmless error rule cannot be applied and accordingly remand for a new trial. Bonine was charged with DUI/manslaughter, pursuant to section 316.193. The jury instructions were that he could be found guilty based on one of two theories:

1) Bonine was driving while under the influence of alcoholic beverages to the extent that his faculties were impaired, or

2) he had a blood alcohol level of 0.08 or higher.

The jury was also instructed as to the statutory presumption of impairment in section 316.1934. This was clearly erroneous pursuant to State v. Miles, 775 So.2d 950 (Fla.2000). In similar cases, we have recently rejected the state's request to find such error to be harmless. Bass v. State, 801 So.2d 975 (Fla. 5th DCA 2001); Servis v. State, 802 So.2d 359 (Fla. 5th DCA 2001). We write now to more fully explain our rationale.

Application of the harmless error rule in this situation depends on whether the case involves "insufficiency of proof," i.e., a mistake about the weight or factual import of the evidence, or "legal error," i.e., a mistake about the law. A general guilty verdict must be set aside where the conviction may have rested on an unconstitutional ground or a legally inadequate theory and there is no way to determine which ground the jury relied upon. However, 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. Griffin v. United States, 502 U.S. 46, 112 S.Ct. 466, 116 L.Ed.2d 371 (1991); Yates v. United States, 354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356 (1957), overruled in part on other grounds, Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978)

; Delgado v. State, 776 So.2d 233 (Fla.2000); Teffeteller v. Dugger, 734 So.2d 1009 (Fla.1999); Mungin v. State, 689 So.2d 1026 (Fla.1995),

cert. denied, 522 U.S. 833, 118 S.Ct. 102, 139 L.Ed.2d 57 (1997); Tricarico v. State, 711 So.2d 624 (Fla. 4th DCA 1998); Mosely v. State, 682 So.2d 605 (Fla. 1st DCA 1996).

In Griffin, the Court explained its rationale for making this distinction:

Jurors are not generally equipped to determine whether a particular theory of conviction submitted to them is contrary to law—whether, for example, the action in question is protected by the Constitution, is time barred, or fails to come within the statutory definition of the crime. When, therefore, jurors have been left the option of relying upon a legally inadequate theory, there is no reason to think that their own intelligence and expertise will save them from that error. Quite the opposite is true, however, when they have been left the option of relying upon a factually inadequate theory, since jurors are well equipped to analyze the evidence, see Duncan v. Louisiana, 391 U.S. 145, 157, 88 S.Ct. 1444, 1451, 20 L.Ed.2d 491 (1968)

. As the Seventh Circuit has put it:

It is one thing to negate a verdict that, while supported by evidence, may have been based on an erroneous view of the law; it is another to do so merely on the chance—remote, it seems to us—that the jury convicted on a ground that was not supported by adequate evidence when there existed alternative grounds for which the evidence was sufficient. United States v. Townsend, 924 F.2d 1385, 1414 (1991).

502 U.S. at 59, 112 S.Ct. at 474.

In sum, a guilty verdict will be upheld if the jury was presented with two legitimate theories of guilt, although the evidence on one theory was insufficient. See, e.g., Mungin (jury was instructed that it could find defendant guilty of first degree murder based on either premeditation or felony murder; conviction upheld based on felony murder since evidence was sufficient to support that ground even though evidence was insufficient to support premeditation and judge erred in instructing the jury on this ground).

However, reversals are required where the jury may have convicted the defendant on a legally improper theory. See, e.g., Tricarico (defendant was entitled to new trial after conviction for first degree murder based on either premeditation or felony murder even though premeditation was supported by the evidence; felony murder theory was invalid as it was predicated on attempted trafficking in cocaine which at the time was not a predicate crime for felony murder and jury did not specify its basis for the verdict); Mosely (conviction for attempted manslaughter reversed where jury instructed that it could find the defendant guilty based on his intentional act or culpable negligence and culpable negligence was not a basis for an attempted manslaughter conviction).

This case involves a legal error rather than insufficiency of the proof. In Tyner v. State, 805 So.2d 862 (Fla. 2d DCA 2001), the second district explained that there are two alternate ways to prove the commission of DUI offenses: actual impairment or a presence of a statutory blood alcohol level. 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, erratic manner of driving and the odor of alcohol. The other way to prove actual impairment is by use of the implied consent law and blood alcohol test to create the statutory presumption that the driver was impaired.

Here the jury was instructed that it could presume Bonine was impaired based on his test results. This instruction was erroneous as a matter of law and not because of any deficiency in the proof at trial. It is unknown whether the jurors followed their instructions and presumed Bonine to be impaired or whether they determined that from the evidence. Since one of the ways to prove the offense was legally inadequate, Bonine's conviction must be reversed and the cause remanded for a new trial.

In McBride v. State, 2002 WL 236620 (Fla. 2d DCA Feb.20, 2002), a case similar to the present one, the court held that the error in instructing the jury on the statutory presumptions of impairment was harmless. But McBride did not apply the legal error/insufficiency proof analysis discussed above. Rather, the court simply concluded that the error was harmless because of the "overwhelming" evidence of actual impairment presented by the state.

However, overwhelming evidence on one valid alternative ground or the harmless error test has no application to a case involving an invalid alternative ground, because no one can say which ground was relied on; ergo, the error is per se harmful. Wilhelm v. State, 568 So.2d 1 (Fla.1990). As explained in State v. DiGuilio, 491 So.2d 1129, 1139 (Fla. 1986):

The test is not a sufficiency-of-the-evidence, a correct result, a not clearly wrong, a substantial evidence, a more probable than not, a clear and convincing, or even an overwhelming evidence test. Harmless error is not a device for the appellate court to substitute itself for the trier-of-fact by simply weighing the evidence. The focus is on the effect of the error on the trier-of-fact. The question is whether there is a reasonable possibility that the error affected the verdict. The burden to show the error was harmless must remain on the state. If the appellate court cannot say beyond a reasonable doubt that the error did not affect the verdict, then the error is by definition harmful. (emphasis in original)

Thus, Bonine's conviction possibly based on one invalid legal alternative cannot be sustained merely because of overwhelming evidence, on the valid ground. See Mackerley v. State, 777 So.2d 969 (Fla.2001)

(harmless error rule cannot be applied when a defendant is convicted by general verdict of first degree murder on the theories of premeditation and felony murder but the felony underlying the felony murder charge is based on a legally unsupportable theory even though there is evidence to support the jury's finding of premeditation); Tricarico (defendant convicted of first-degree murder based on either premeditation or felony murder was entitled to a new trial where felony murder theory was invalid; overwhelming evidence of premeditated murder does not eliminate the doubt as to which of the two theories the jury rested its decision).

Our sister court has reached the same conclusion in a case factually similar to this one. In Cameron v. State, 804 So.2d 338 (Fla. 4th DCA 2001), the defendant collided with another boat while driving his at a high rate of speed, killing six people. Blood drawn from the defendant 45 minutes after he was taken to the hospital indicated a blood alcohol level of .21. He was charged with six counts of manslaughter while operating the boat under the influence of alcohol, six counts of manslaughter with an unlawful blood alcohol level and other criminal charges. The jury found him guilty on all counts.

The state did not opt to adduce the blood alcohol tests results complying with the testing procedures set forth in section 327.354(3), and thus the statutory presumption was not available. The court noted that the boating statutes track the motor vehicle statutes. Thus, pursuant to State v. Miles, the trial court erred in instructing the jury on the statutory presumptions of...