Cardenas v. State

• Decision Date: 07 May 2002
• Docket Number: No. 1D00-3833.,1D00-3833.
• Citation: 816 So.2d 724
• Parties: Ronald R. CARDENAS, Jr., Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

816 So.2d 724

Ronald R. CARDENAS, Jr., Appellant, v. STATE of Florida, Appellee.

No. 1D00-3833.

District Court of Appeal of Florida, First District.

May 7, 2002.

Eugene K. Polk of Law Offices of Terence A. Gross, Pensacola, for Appellant.

Robert A. Butterworth, Attorney General; Robert L. Martin, Assistant Attorney General, Tallahassee, for Appellee.

WOLF, J.

Appellant challenges his various convictions and sentences arising out of a collision between his fishing boat and a commercial barge which resulted in the deaths of two people and serious injury to his son. We affirm appellant's convictions and sentences as orally pronounced at sentencing and strike those portions of the written judgment which are inconsistent with the trial court's oral pronouncement. We also certify a question of great public importance as to whether the giving of the presumption of impairment instruction constituted fundamental error. A number of issues are raised on appeal, only three of which require any discussion.

Appellant argues on appeal that the trial court abused its discretion by refusing to allow him to cross-examine Lieutenant Harry "Buddy" Gomez regarding the delay in arresting and charging appellant in connection with the accident. We affirm as to this issue because, contrary to appellate counsel's assertions at oral argument, appellant never proffered the substance of the proposed cross-examination of this witness to the trial court. A proffer of excluded testimony is necessary to preserve a claim that the testimony was erroneously excluded. See Lucas v. State, 568 So.2d 18, 22 (Fla.1990); see also Finney v. State, 660 So.2d 674, 684 (Fla.1995)(holding that challenge to trial court's refusal to allow certain cross-examination by defense of state witness had not been properly preserved for appellate review because defendant "never proffered the testimony he sought to elicit from the witness and the substance of that testimony is not apparent from the record"). We note that the trial court did allow defense counsel to cross-examine Lieutenant Gomez concerning his alleged bias against appellant as well as his failure to immediately report to the lead investigating officer on the case appellant's alleged admissions, on the night of the accident, as to who had been driving the boat at the time of the collision.

Appellant also argues on appeal that the trial court erred in giving the standard impairment presumption jury instruction in this case in light of the supreme court's decision in State v. Miles, 775 So.2d 950 (Fla.2000). We affirm as to this issue because appellant never presented to the trial court the Miles argument he now asserts on appeal, and the giving of the challenged instruction did not rise to the level of fundamental error.

During the first of several discussions on jury instructions held in this case, the prosecutor indicated that he wanted the impairment presumption instruction given. Defense counsel responded that his only concern at that time was that it be made clear to the jury that they could not convict appellant based solely on the evidence that he had been drinking and driving the boat at various points during the day before the accident. The prosecutor agreed that he would make it clear that the jury should not convict simply because there had been evidence that appellant had been drinking and driving the boat prior to the accident, and the trial court indicated that it would be made clear to the jury that such evidence was only relevant in terms of the reasonable inferences that could be drawn from it concerning who had been driving the boat at the time of the accident.

When the parties and the trial court resumed their discussion about jury instructions later in the proceedings, defense counsel stated, "For the record, so it doesn't appear there's a waiver, I'm going to object to the presumption instruction." Defense counsel did not, however, argue any grounds for his objection to the trial court. The trial court overruled the objection and moved on.

After the parties had made their closing arguments, another final discussion about the jury instructions took place. During this discussion, defense counsel again stated, "I'm going to object to the presumption instruction. I think you've already ruled on that." Defense counsel again provided no argument to the trial court in support of his objection. Thus, appellant's Miles challenge to the giving of the standard impairment presumption instruction was never presented to the trial court.¹ Merely objecting to the giving of a standard jury instruction, without stating the specific grounds for the objection, does not preserve for appellate review the issue of whether the instruction was given in error. See Esty v. State, 642 So.2d 1074, 1079-80 (Fla.1994); see also Tolbert v. State, 679 So.2d 816, 818 (Fla. 4th DCA 1996)(en banc).

Because the Miles argument now presented on appeal was not the basis of the defense objection to the impairment presumption instruction in the trial court, we have considered whether the giving of the impairment presumption instruction constituted fundamental error, and conclude that it did not. Fundamental error in a criminal case has been described as "error that `reaches down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error'." Barnes v. State, 743 So.2d 1105, 1108 (Fla. 4th DCA) (quoting Kilgore v. State, 688 So.2d 895 (Fla.1996)),rev. denied, 744 So.2d 457 (Fla.1999). Challenges to an inaccurate or erroneous instruction must be preserved for appeal. See State v. Delva, 575 So.2d 643, 644-45 (Fla.1991); see also Archer v. State, 673 So.2d 17, 20 (Fla.1996); Geralds v. State, 674 So.2d 96, 98-99 n. 6 (Fla.1996); Tolbert, 679 So.2d. at 818. An improper instruction or failure to instruct as to an essential element of a crime may rise to the level of fundamental error. See Mercer v. State, 656 So.2d 555, 556 (Fla. 1st DCA 1995). The instruction in the instant case, however, neither omitted from the definition of an offense one of the essential elements, nor misdefined one of the essential elements of an offense. The challenged instruction merely advised the jury of an evidentiary presumption or permissible inference that they were free to accept or reject. See State v. Rolle, 560 So.2d 1154, 1156 (Fla.1990); Register v. State, 582 So.2d 762, 763 (Fla. 1st DCA 1991).

In Smith v. State, 521 So.2d 106 (Fla. 1988), the supreme court was asked to determine whether the trial court had committed fundamental error by instructing the jury with an erroneous standard instruction on the insanity defense which improperly explained the law with respect to the burden of proof in insanity cases. See id. at 107. The court determined that fundamental error had not occurred because the instructional error in that case had not deprived the defendant of a fair trial. See id. at 108; see also Holiday v. State, 753 So.2d 1264, 1269-70 (Fla.2000) (relying on Smith to support the conclusion that the giving of an erroneous standard jury instruction on the entrapment defense, which improperly explained the law with respect to the burden of proof in such cases, did not constitute fundamental error). We find the instructional error in this case similar to the instructional errors at issue in Smith and Holiday.

The use of the standard impairment presumption instruction here did not constitute fundamental error because it did not affect the fairness of the proceeding. There is no assertion that the blood samples taken from appellant on the night of the accident were tainted in any way. We fail to see how the giving of the standard impairment presumption instruction under these circumstances influenced the outcome of the trial or that the guilty verdict could not have been obtained without the improper instruction. We, therefore, conclude that the giving of the standard impairment presumption instruction in this case did not constitute fundamental error.

We recognize that some uncertainty exists in the case law defining the standard for determining whether fundamental error has occurred when an erroneous jury instruction is given. As a result, we certify the following question to be of great public importance:

IS IT FUNDAMENTAL ERROR TO GIVE A JURY INSTRUCTION ON THE PRESUMPTION OF IMPAIRMENT IN VIOLATION OF THE PRECEPTS OF STATE V. MILES, 775 So.2d 950 (Fla.2000)?

We address the last issue raised on appeal by striking those portions of the written judgment which are inconsistent with the trial court's oral pronouncements at sentencing. At sentencing, the trial court never actually adjudicated appellant guilty of the crime of culpable negligence in connection with the death of Ronald Cardenas, Sr., or imposed a sentence for that offense. The written judgment, however, indicates that appellant was adjudicated guilty of both boating under the influence (BUI) manslaughter and culpable negligence in connection with the death of Ronald Cardenas, Sr., and appellant was sentenced on both offenses. Appellant argues on appeal, as he did in the trial court, that these dual convictions are precluded by the supreme court's decision in State v. Chapman, 625 So.2d 838 (Fla.1993). We need not reach that issue because the trial court did not orally pronounce dual convictions and sentences in connection with the death of Ronald Cardenas, Sr., and we are striking any indications to the contrary from the written judgment.²

WEBSTER, J., concurs; BROWNING, J., concurs in part and dissents in part with written opinion.

BROWNING, J. concurs in part and dissents in part.

I concur with the majority that appellant did not preserve the issue pertaining to his cross-examination of Lieutenant Harry "Buddy" Gomez and to certification. I dissent from the majority's holding that appellant did not preserve the trial court's error by giving the presumption of...