Davison v. State, 95-2460

• Decision Date: 12 December 1996
• Docket Number: No. 95-2460,95-2460
• Citation: 688 So.2d 338
• Parties: 21 Fla. L. Weekly D2631 Curtis Blain DAVISON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 338

688 So.2d 338

21 Fla. L. Weekly D2631

Curtis Blain DAVISON, Appellant, v. STATE of Florida, Appellee.

No. 95-2460.

District Court of Appeal of Florida,

First District.

Dec. 12, 1996.

Rehearing Denied March 19, 1997.

Nancy A. Daniels, Public Defender; Phil Patterson, Assistant Public Defender, Tallahassee, for Appellant.

Robert A. Butterworth, Attorney General; Carolyn J. Mosley, Assistant Attorney General, Tallahassee, for Appellee.

LAWRENCE, Judge.

We have for review on direct appeal the judgment and sentence imposed upon Curtis Blain Davison (Davison) which arose from an automobile accident occurring on November 28, 1994, in Leon County. Davison was convicted of manslaughter by culpable negligence, perjury not in an official proceeding, and making a false report regarding a traffic incident, following a jury trial. We affirm.

The evidence presented at trial established that on the night of the accident, Davison had consumed three alcoholic beverages (vodka) at the Steak and Ale where he was the manager. He had worked all day, reporting at 9 a.m. During the evening hours, the regional manager, Michael Mannella, was also with Davison and consumed alcoholic beverages. They left Steak and Ale around 11:30 p.m. and went to Julie's Place where Davison consumed one beer and one mixed drink. Mannella and Davison left Julie's Place about 12:30 a.m., driving Mannella's Nissan 300 ZX. Mannella checked into a motel and he and Davison thereafter rode around Tallahassee for some time. Mannella was a stranger to the city and wanted to see different parts of Tallahassee. They eventually wound up on Meridian Road, north of Interstate 10, an area with which Davison was unfamiliar. A terrific crash, involving only the Nissan 300 ZX, subsequently occurred about 1:45 a.m. on Meridian Road near Summerbrooke Drive, resulting in the death of Mannella. Davison told investigating officers that Mannella was driving in a northerly direction at the time of the crash, traveling at a speed of between 80 and 100 miles per hour; that they came to a sign warning of an S-curve, but were unable to completely negotiate the curve before the car began sliding off the road and into a tree.

The physical evidence at the accident scene overwhelmingly refuted Davison's claim that Mannella was the driver, and convincingly supported the State's position that Davison was the driver. Davison does not seriously contend to the contrary on appeal, but argues that the evidence was insufficient to sustain the conviction for manslaughter.

Expert witnesses called by the State established the speed of the car immediately before the Nissan left the road at between 89 and 94 miles per hour. A toxicologist opined that Davison's blood alcohol level at the time of the accident was between .063 and .089 grams per 100 milliliters.

Other evidence at the scene consisted of the following conditions. The section of Meridian Road immediately preceding the crash site consisted of a two-lane county road lined on each side by numerous trees sometimes referred to as a canopy road. The road was dark and had no street lights. Immediately south of the crash site there is an S-curve in the road. A sign warns of the S-curve and the posted speed limit was 45 miles per hour. There was also a cautionary speed limit sign advising 35 miles per hour. The Nissan went through the S-curve before sliding off of the road. After leaving the road, the car hit a tree, became airborne, rotated to a backwards position, and hit a larger tree which caused extensive damage to the car, particularly the passenger side door.

Among his several arguments, Davison contends that excessive speed, coupled with evidence of alcohol consumption, is not sufficient to constitute manslaughter by culpable negligence under Florida's statute, citing Filmon v. State, 336 So.2d 586 (Fla.1976), and numerous other cases.

In Filmon, our supreme court said: "every case of manslaughter by culpable negligence must be determined upon the facts and circumstances peculiar to that case." Filmon v. State, 336 So.2d at 590.

In the instant case, we have in addition to evidence of consumption of alcohol and excessive speed by Davison, the following facts and circumstances:

(1) the accident occurred at night in total darkness with no street lights or other sources of illumination;

(2) the accident occurred on a two-lane county road, lined with trees on both sides, described as a canopy road;

(3) the road signs warned of an S-curve with a posted speed limit of 45 miles per hour and a cautionary advisory speed of 35 miles per hour;

(4) Davison was driving the car on a road with which he was unfamiliar;

(5) Davison was driving a high-performance sports car with which he was unfamiliar;

(6) Davison drove through the S-curve at a high rate of speed, and immediately before sliding off of the road, was traveling between 89 and 94 miles per hour;

(7) Davison had worked long hours at his job before the accident, having reported for work more than sixteen hours earlier at 9:00 a.m.;

(8) Davison ignored all of the warning signs and conditions which should have alerted him to the inevitable crash which subsequently resulted in Mannella's death.

These facts and circumstances are more than ample to warrant the jury's verdict of manslaughter by culpable negligence and we find the evidence sufficient to sustain the conviction for that offense. No issue is made with respect to the remaining two offenses.

Accordingly, we AFFIRM the judgment and sentence of the trial court for each of the offenses.

MINER, J., concurs.

SHIVERS, Senior Judge, dissents with opinion.

SHIVERS, Senior Judge, dissenting.

Simple negligence, however grave the consequences thereof, cannot support a conviction of manslaughter by culpable negligence. Because I believe today's decision allows the conviction to stand on a showing of a traffic death resulting from speed in excess of the posted limit, an insufficient basis as a matter of law, I respectfully dissent.

Viewing the evidence and all reasonable inferences in favor of the state, as must be done in cases such as this, the facts presented at trial indicate that on the ill-fated evening, the Appellant met with Mannella at a Steak and Ale restaurant. The Appellant was the manager of the restaurant location and Mannella was the regional manager for the restaurant chain. Between 8:00 and 10:30 p.m. the Appellant was served three and Mannella was served four mixed drinks. At some point in the evening, the Appellant and Mannella left Steak and Ale and traveled to another restaurant nearby where they each were served one beer and one mixed drink. The two left that restaurant at about 12:30 a.m. in Mannella's automobile, a 1993 Nissan 300 ZX.

Although there was no eyewitness, the car and accident scene showed evidence of a spectacular crash. It appears that the Appellant and Mannella were traveling north on Meridian Road at between 89 and 94 miles per hour with the Appellant at the wheel. ¹ Negotiating a curve with a posted speed limit of 35 miles per hour, the Appellant lost control of the vehicle. Leaving the roadway, the car struck a tree and, spinning now, struck another tree with the passenger side of the car. This second impact compromised the structure of the car and stripped open the passenger door as the car became airborne. Apparently not wearing his seatbelt, Mannella was ejected from the car before it finally came to rest in the roadway, and suffered mortal injuries in the process.

On these facts, the state chose to prosecute the Appellant for manslaughter by culpable negligence under section 782.07, Florida Statutes, which imposes a greater showing than that required under the vehicular homicide statute, section 782.071, Florida Statutes (1993). See Behn v. State, 621 So.2d 534, 536 (Fla. 1st DCA 1993). The state's evidentiary burden under this statute is well-settled. The degree of negligence necessary to constitute criminal liability under section 782.07 must be of a

gross and flagrant character, evincing reckless disregard of human life or of the safety of persons exposed to its dangerous effects; or that entire want of care which would raise the presumption of indifference to consequences; or such wantonness or recklessness or grossly careless disregard of the safety and welfare of the public, or that reckless indifference to the rights of others, which is equivalent to an intentional violation of them.

Preston v. State, 56 So.2d 543, 544 (Fla.1952); quoting Savage v. State, 152 Fla. 367, 11 So.2d 778, 779 (Fla.1943); see also Cannon v. State, 91 Fla. 214, 107 So. 360, 363 (Fla.1926) and cases cited therein. Further, where the conviction rests on circumstantial evidence only,

the circumstances, when taken together, must be of a conclusive nature and tendency, leading on the whole to a reasonable and moral certainty that the accused ... committed the offense charged. It is not sufficient that the facts create a strong probability of, and be consistent with, guilt; they must be inconsistent with innocence.

Cannon, 107 So. at 363. On my review of the record in light of the standards established by the supreme court, I am not convinced that the evidence presented is "so strong, cogent, and convincing as to exclude every reasonable hypothesis except that of the defendant's guilt." See Savage, 11 So.2d at 782 and cases cited therein.

The supreme court has already settled much of the inquiry this court is called upon to make in this appeal. "It cannot be controverted ... that excessive speed alone, ..., coupled with evidence of intoxication, is not sufficient to constitute culpable negligence under our criminal statute." Filmon v. State, 336 So.2d 586, 590 (Fla.1976), cert. denied, Filmon v. Florida, 430 U.S. 980, 97 S.Ct. 1675, 52 L.Ed.2d 375 (1977), rehearing denied, 431 U.S. 960, 97 S.Ct. 2689, 53 L.Ed.2d 279 (1977); see also McCreary v. State, 371 So.2d 1024 (Fla.1979). The district...