Byrd v. State, 87-1266
| Decision Date | 22 September 1988 |
| Docket Number | No. 87-1266,87-1266 |
| Parties | 13 Fla. L. Weekly 2195 Michael Blair BYRD, Appellant/Cross-Appellee, v. STATE of Florida, Appellee/Cross-Appellant. |
| Court | Florida District Court of Appeals |
James P. Gibson, Public Defender and Christopher S. Quarles, Asst. Public Defender, Daytona Beach, for appellant/cross-appellee.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Belle B. Turner, Asst. Atty. Gen., Daytona Beach, for appellee/cross-appellant.
Michael Byrd appeals a judgment and sentence for vehicular homicide challenging the sufficiency of the evidence. The state cross appeals challenging the downward departure in Byrd's sentence. We affirm the conviction but reverse the sentence and remand the cause for resentencing.
The evidence at trial reflects that on December 23, 1985, at around noon, Byrd and his coworker David Williams were traveling from Deland to New Smyrna Beach on State Road 44 in their company's red Toyota pickup truck. The pickup truck was traveling east in the left or passing lane of State Road 44 which, at this point, is a four lane highway.
As the pickup truck got closer to town, Williams told Byrd that there were several cars stopped up ahead. Byrd stepped on the brakes and the truck swerved to the left, struck the median, became airborne and hit a car traveling in the opposite direction in the far westbound lane. The other car was totalled and its driver was killed. After the accident, witnesses testified that they overheard Williams saying that he kept telling Byrd to slow down and that Byrd had been driving recklessly.
Trooper Wingard, who conducted the homicide investigation, testified that there were numerous housing developments and some business establishments immediately west of the scene of the accident. Trooper Wingard also testified that a "reduced speed sign" and a 45 miles per hour speed sign were posted less than one-half mile west of the accident. According to Trooper Wingard, the day was dry and clear and the road was dry. Based on measurements taken at the scene of the accident and using acceptable accident reconstruction techniques, Trooper Wingard estimated that Byrd's pickup truck was traveling at 81 miles per hour when it started to skid. Trooper Wingard found no evidence of braking by the pickup truck. On cross examination, Trooper Wingard stated that blood tests showed that Byrd had not been drinking.
Trooper Gerald Thomas, who conducted the accident investigation at the scene, testified that he charged Byrd with careless driving rather than reckless driving. Trooper Thomas estimated Byrd's speed at 70 plus miles per hour based on the statements of witnesses and his observations at the scene of the accident.
John Murdoch, an accident reconstruction expert, testified for the defense that he disagreed with Trooper Wingard's conclusion that Byrd was traveling at 81 miles per hour. According to Murdoch's calculations, Byrd was traveling at around 47 to 48 miles per hour. On cross examination, Murdoch admitted that the measurements he used resulted in the average speed that Byrd's vehicle was traveling during the time he lost control of it as opposed to the speed the vehicle was going as Byrd started to slide sideways.
On rebuttal, Trooper Wingard testified that he disagreed with Murdoch's method of calculation because it resulted in a greatly reduced entry speed. Based on the damage done to the other vehicle and the distance traveled by the pickup truck, Trooper Wingard estimated that Byrd's vehicle had to be traveling in excess of 50 miles per hour.
The jury found Byrd guilty of vehicular homicide. Byrd's recommended guidelines sentence was three to seven years incarceration. The trial court departed downward and sentenced Byrd to two years community control followed by five years probation.
On appeal, Byrd contends that the state merely showed excessive speed and that by itself is not sufficient to support a conviction for vehicular homicide. This argument is without merit.
Vehicular homicide requires that the defendant operate a motor vehicle in a reckless manner likely to cause the death of or great bodily harm to another, and that there be a causal relationship between that recklessness and the victim's death. Higdon v. State, 465 So.2d 1309 (Fla. 5th DCA 1985), quashed on other grounds, 490 So.2d 1252 (Fla.1986). The degree of negligence necessary to sustain a conviction for vehicular homicide falls short of culpable negligence but is more than a mere failure to use ordinary care. McCreary v. State, 371 So.2d 1024 (Fla.1979).
In the present case, the jury could have reasonably found that Byrd was traveling at 81 miles per hour or close to twice the speed limit for that area. The jury could also have found that the traffic at around noon two days before Christmas was heavy. The evidence was undisputed that Byrd had been told to slow down as he went through a caution light and had just passed a reduced speed sign and a 45 mile per hour speed sign less than one-half mile before the accident. The jury could also have found that Byrd was not paying attention as he tried to stop his vehicle only about six to ten feet behind a stopped car. Byrd's vehicle hit a car in the opposite lane of traffic, killing the driver on impact. This evidence is sufficient to show that Byrd killed another human being by the operation of a motor vehicle in a reckless manner likely to cause the death of or great bodily harm to another. See Johnson v. State, 92 So.2d 651 (Fla.1957).
On cross appeal, the state argues that the reasons for the downward departure from Byrd's recommended guidelines sentence were not clear and convincing. We agree.
The probation officer apparently assigned to investigate this matter recommended that Byrd be placed on community control for two years followed by three years probation. In a letter to the trial judge, the probation officer set out his reasons for this recommendation:
(1) The Nine Points which placed the defendant in the Prison Sanction in accordance with the Sentencing Guidelines, are a result of a combination of...
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