Bouchard v. State, 89-01780
| Decision Date | 16 February 1990 |
| Docket Number | No. 89-01780,89-01780 |
| Citation | 556 So.2d 1215 |
| Parties | 15 Fla. L. Weekly D517 Joseph BOUCHARD, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Elliott C. Metcalfe, Jr., Public Defender, Twelfth Judicial Circuit, and Peter B. Belmont, Asst. Public Defender, Bradenton, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Michele Taylor, Asst. Atty. Gen., Tampa, for appellee.
A detailed statement of the subsidiary evidence forming the basis for Joseph Bouchard's conviction for the commission of a DUI manslaughter is not essential to our disposition of this matter. It is sufficient to note that the charges against Bouchard arose from a collision between his car and the decedent's which occurred when Bouchard executed a left hand turn across the adjacent traffic lane. The decedent was travelling at an illegally excessive speed and both he and Bouchard were intoxicated. The decedent was thrown from his car and pronounced dead at the scene.
We are left with little doubt that this is one of those "close" cases that could have terminated in a jury acquittal. The evidence supporting Bouchard's conviction was not overwhelming. See Rosso v. State, 505 So.2d 611 (Fla. 3d DCA 1987). Indeed, it might be said that the facts surrounding the accident, at best, yielded only a "triable" issue of causation.
Against that backdrop, Bouchard has presented five points on appeal and we have considered each. One of Bouchard's valid points stems from the prosecutor's statements in opening and closing arguments. We believe the prosecutor approached, if he did not step over, the brink of inappropriate comment in his opening and closing statements. Certainly his utterances amounting to asking the jury to send a message to the community were improper. Hines v. State, 425 So.2d 589 (Fla. 3d DCA 1982). When that occurred the trial court sustained Bouchard's objection, denied his motion for mistrial and gave the jury a curative instruction. Nonetheless, we are unable to say beyond a reasonable doubt that the misspoken words did not prejudice the outcome of this proceeding. Cf. Williard v. State, 462 So.2d 102 (Fla. 2d DCA 1985). We are also persuaded that one of the other grounds urged in support of Bouchard's position compels reversal. Thus, we reverse his conviction, vacate the sentence and remand for a new trial.
In Magaw v. State, 537 So.2d 564, 567 (Fla.1989), the supreme court elaborated upon and gave definition to the element of causation in prosecutions based upon section 316.193(3):
[T]he statute does not say that the operator of the vehicle must be the sole cause of the fatal accident. Moreover, the state is not required to prove that the operator's drinking caused the accident. The statute requires only that the operation of the vehicle should have caused the accident. Therefore, any deviation or lack of care on the part of a driver under the influence to which the fatal accident can be attributed will suffice.
The state did not offer evidence from any witness who observed the impact of the two vehicles. The state's evidence consisted mainly of witness versions of the manner in which the intoxicated decedent was driving and his speed prior to the event, the location of Bouchard's van in the roadway before and after the accident, and the opinion of one witness that Bouchard used bad judgment in making the turn. A state trooper stated from his post-accident assessment that it was Bouchard who caused the accident.
During the course of the trial, beginning with the prosecutor's opening statement and ending with his summation to the jury, there were no fewer than nine references to Bouchard's lack of remorse immediately following the accident. The state presented the testimony of eight bystanders who were at the scene when the accident occurred. Of the eight witnesses, four were asked whether they heard Bouchard express remorse and each responded that Bouchard was not remorseful. The state also tendered the...
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Parker v. State, 91-281
...presented combine to make the case sufficient for submission to the jury and affirmance of the conviction. Compare Bouchard v. State, 556 So.2d 1215 (Fla. 2d DCA 1990) ("close" case that could have led to jury acquittal of DUI manslaughter charge yielded "triable" issue of As for the allege......