Burks v. State, 90-2340

• Decision Date: 07 November 1991
• Docket Number: No. 90-2340,90-2340
• Citation: 589 So.2d 355
• Parties: 16 Fla. L. Weekly D2814 Calvin Earl BURKS, Appellant. v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 355

589 So.2d 355

16 Fla. L. Weekly D2814

Calvin Earl BURKS, Appellant. v. STATE of Florida, Appellee.

No. 90-2340.

District Court of Appeal of Florida Fifth District.

Nov. 7, 1991.

Rehearing Denied Dec. 11, 1991.

Jeffrey L. Dees, Daytona Beach, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Judy Taylor Rush, Asst. Atty. Gen., Daytona Beach, for appellee.

HARRIS, Judge.

Florida Highway Patrol Trooper C.W. Heaton was dispatched to the scene of a traffic accident. When he arrived he found a tractor-trailer blocking both northbound lanes of U.S. Highway 17. A motorcycle was lying in the roadway, and the body of the motorcyclist was lying near the truck.

Heaton was advised at the scene that Calvin Burks, standing outside the truck, had been the driver of the truck. Heaton conducted a traffic investigation in order to complete an accident report as required by section 316.066(4), Florida Statutes (1989). He then advised Burks that he was terminating the traffic investigation and was about to conduct a criminal investigation. He gave Burks the Miranda warnings and conducted a criminal investigation. During the criminal investigation, Burks admitted that he was the driver of the truck and that he had been drinking heavily all evening. He was subsequently taken to the hospital for a blood test. His blood alcohol level was .14.

Burks was convicted of DUI manslaughter. He appeals contending that the corpus delicti was not established prior to admitting into evidence his admission that he was the driver of the truck; i.e., there was no evidence, other than his admission, direct or circumstantial, that placed him behind the wheel of the truck. ¹ We disagree.

Burks cites many cases that hold that a confession may not be received until the corpus delicti has been established, ² and, unfortunately, many of these cases do not distinguish between an admission against interest and a confession.

In Farley v. City of Tallahassee, 243 So.2d 161 (Fla. 1st DCA 1971) the court did hold that the defendant's admission that he was the driver of the vehicle in a DUI case was inadmissable when that was the only proof as to the identity of the driver.

In Sciortino v. State, 115 So.2d 93 (Fla. 2nd DCA 1959) the court held that the defendant's "admission" that he had only been back in the bolita business a couple of weeks and that the numbers in the box were lottery tickets and that they belonged to him could not be used to establish the corpus delicti of conducting a lottery. It is urged, however, that in Sciortino, the defendant's admission rose to the level of a confession that he committed the charged offense. Unfortunately this case did not discuss the distinction between confessions and admissions against interest.

Similarly, the court in Alexander v. State, 107 So.2d 261 (Fla. 2nd DCA 1958) would not permit the defendants "admission" that he was in the bolita business because there was no other independent evidence. Again the "admission" was, in fact, a confession to committing an illegal act.

In State v. Hepburn, 460 So.2d 422 (Fla. 5th DCA 1984), this court would not permit the defendant's "confession" that she was involved in the hit and run accident in which three pedestrians were injured because there was no other evidence that she was the driver. However, we noted that because her exact statement was not in the record we could not tell if she had made a confession or merely a statement against interest. We assumed, for the purpose of that decision, that her statement was a confession.

The Fifth Edition of Black's Law Dictionary makes the following distinction between a confession and admission against interest:

Confession: A voluntary statement made by a person charged with the commission of a crime or misdemeanor, communicated to another person, wherein he acknowledges himself to be guilty of the offense charged [.] [Emphasis added.]

A statement made by a defendant disclosing his guilt of crime with which he is charged and excluding possibility of a reasonable inference to the contrary[.] [Emphasis added.]

Voluntary statement made by one who is a defendant in a criminal trial at a time when he is not testifying in trial and by which he acknowledges certain conduct of his own constituting a crime for which he is on trial; a statement which, if true, discloses his guilt of that crime and excludes possibility of reasonable inference to contrary. [Emphasis added.]

Admission against interest: A statement made by one of the parties to an action which amounts to a prior acknowledgment by him that one of the material facts relevant to the issues is not as he now claims ... Any statements made by or attributable to a party to an action, which constitute admissions against his interest and tend to establish or disprove any material fact in the case. [Emphasis added.]

Therefore, to be a confession, the statement must acknowledge guilt of the crime charged. As stated in People v. Beverly, 233 Cal.App.2d 702, 43 Cal.Rptr. 743, 750 (Cal.Dist.Ct.App.1965), cert. denied, 384 U.S. 1014, 86 S.Ct. 1937, 16 L.Ed.2d 1035 (1966):

A confession leaves nothing to be determined, in that it is a declaration of his [defendant's] intentional participation in a criminal act.... An admission as applied to criminal law is something less than a confession, and is but an acknowledgment of some fact or circumstances which in itself is insufficient to authorize a conviction, and which tends only toward the proof of the ultimate fact of guilt.

In the case at bar, Burks' admission that he was the driver of the truck--before any arrest and before any charges were filed--was an admission against interest tending merely to establish one material fact and did not acknowledge guilt. ³ The reason for the confession--corpus delicti rule (that one not be convicted out of derangement, mistake or official fabrication--Allen, infra, at 825) does not apply to admissions against interest where the law presumes that the one making the statement would not have done so unless the statement was true.

Normally we would merely affirm based on this distinction. ⁴ However, we are confronted by State v. Allen, 335 So.2d 823 (Fla.1976) in which the supreme court discussed defendant's "confession" that he was the driver of the vehicle at the time of the accident. Since driving a vehicle, in and of itself, was not a crime, this statement appears to have been a statement against interest and not a confession. Since the "confession" was not set out in full in the Allen decision, it is...