Brown v. State

• Decision Date: 12 September 1985
• Docket Number: No. BD-418,BD-418
• Citation: 10 Fla. L. Weekly 2141,477 So.2d 609
• Parties: 10 Fla. L. Weekly 2141 Dennis Randall BROWN, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 609

477 So.2d 609

10 Fla. L. Weekly 2141

Dennis Randall BROWN, Appellant, v. STATE of Florida, Appellee.

No. BD-418.

District Court of Appeal of Florida First District.

Sept. 12, 1985.

Rehearing Denied Nov. 14, 1985.

Ronald W. Johnson of Kinsey, Myrick, Troxel & Johnson, Pensacola, for appellant.

Jim Smith, Atty. Gen., John W. Tiedemann, Asst. Atty. Gen., Tallahassee, for appellee.

ERVIN, Judge.

Brown appeals judgments and sentences of three years imprisonment imposed following trial by jury arising from two counts of DUI/manslaughter. He raises numerous points on appeal for reversal. We affirm as to all points raised, but find that the nature of the case requires us only to address three issues.

Appellant first contends the trial court erred in allowing one Charlie Johnson, a store owner with a Bachelor of Science degree in Criminal Justice, to testify as an expert witness on the effects of alcohol upon the human body. Appellant argues that Johnson does not have the qualifications to testify as an expert witness. This point is without merit. Although Johnson's present occupation is that of a store owner, previously he had been employed as a highway patrol trooper for 27 years, and presently serves as a breathalyzer and intoxilyzer instructor at Pensacola Junior College, having 60 hours of breathalyzer training at the Florida Highway Patrol Academy. Moreover, during his training and education, he has studied the effects of alcohol on the human body. The Florida Evidence Code, specifically Section 90.702, Florida Statutes, permits a witness to qualify as an expert "by knowledge, skill, experience, training, or education...." Additionally, in Florida, a witness may qualify as an expert by reason of his study of authoritative sources without any particular experience involving the subject matter. Seaboard Air Line Railroad Co. v. Lake Region Packing Association, 211 So.2d 25 (Fla. 4th DCA 1968); Kelly v. Kinsey, 362 So.2d 402, 404 (Fla. 1st DCA 1978). Clearly Johnson's educational experience in the field qualifies him as an expert.

Appellant also urges that the court should have stricken Johnson's references to certain scientific inebriation tests which he conducted with his students on the ground that the tests had not gained general acceptance by experts in the field. In Florida, the determination of an issue concerning a subject matter's general acceptance by the relevant scientific community is generally a discretionary call by the trial court and is subject to the abuse of discretion standard. See Coppolino v State, 223 So.2d 68, 70 (Fla. 2d DCA 1968), appeal dismissed, 234 So.2d 120 (Fla.1969). In the case at bar we agree that the references to the tests should not have been admitted because there was no showing of any controlled circumstances during the testing procedure or of the reliability of the tests. Nevertheless, the expert's opinion that anyone with a .10 percent blood alcohol level, or above, would be deprived of the full possession of his normal faculties, was not based solely upon scientific tests and experiments, but also upon the witness's education and research of the subject matter. Finally, even if we should agree that the trial court erred in allowing the introduction of such testimony, because it was based in part on unreliable scientific experiments, the alleged error was harmless due to the overwhelming evidence relating to appellant's intoxication at the time of the accident. Such evidence included testimony by another qualified witness that appellant had a .18 percent blood alcohol level in his system at the time of the accident, the officers' personal observations of appellant at the accident scene regarding his intoxicated state, and a videotape of appellant's condition taken several hours after the accident, as well as the testimony of a witness regarding appellant's condition at a tavern where he had been seen drinking before the collision.

Appellant next argues that the trial court erred in allowing Trooper Lynch to offer an expert opinion as to the speed appellant's vehicle was traveling just before it rear-ended the decedents' automobile. The trooper based his opinion upon the extent of the crush damage sustained by both vehicles after the initial impact, and upon the distances the cars thereafter moved. He admitted that he was a homicide investigator rather than an accident reconstructionist. The state, however, contended that the trooper had the necessary expertise to testify, based upon his three years of experience as a homicide investigator, including forty hours of training in the field, and eighty hours of advanced investigation training at the Florida Highway Patrol Academy under the tutelage of University of Miami Professor Fogerty, a generally acknowledged expert on the subject. The issue before us, however, does not go so much to the witness's qualification by reason of his educational background, but rather the faulty premises on which he based his opinion.

We agree with appellant that the trial court erred in allowing Trooper Lynch's opinion as to the speed of appellant's vehicle at the time of the accident, but conclude that such error can only be considered harmless. As stated in Delta Rent-A-Car, Inc. v. Rihl, 218 So.2d 469 (Fla. 4th DCA 1969), a witness may not be permitted to...