Filmon v. State

• Decision Date: 23 June 1976
• Docket Number: No. 47369,47369
• Citation: 336 So.2d 586
• Parties: Jack W. FILMON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 586

336 So.2d 586

Jack W. FILMON, Appellant, v. STATE of Florida, Appellee.

No. 47369.

Supreme Court of Florida.

June 23, 1976.

Rehearing Denied Sept. 24, 1976.

David A. Demers, Law Offices of Robert W. Pope, St. Petersburg, for appellant.

Robert L. Shevin, Atty. Gen., and Davis G. Anderson, Jr., Asst. Atty. Gen., for appellee.

SUNDBERG, Justice.

This is an appeal from a conviction of manslaughter by culpable negligence in the Circuit Court of the Sixth Judicial Circuit, in and for Pinellas County. Our jurisdiction vests under Article V, Section 3(b)(1), Florida Constitution, because the trial court passed upon the validity of Section 322.261, Florida Statutes, relative to blood alcohol tests for intoxication.

On the evening of August 31, 1973, the automobile driven by appellant Filmon collided with another vehicle at the intersection of 54th Avenue and 34th Street South, in the City of St. Petersburg, Florida. Filmon's car had been heading north on 34th Street South while the other automobile had been going south on the same street and was attempting to make a left turn at the intersection of 54th Avenue South at the time of the collision. Subsequent to the accident six injured persons--four in Filmon's car and two in the other vehicle--were dispatched by ambulance to the Bayfront Medical Center in St. Petersburg. A police officer who had learned of the accident over his car radio proceeded to the hospital and caused blood alcohol tests to be administered to five individuals, the sixth (a passenger in the car which had been attempting a left turn) having died previous to arrival at the hospital. Later that night, the other occupant of the car struck by appellant's auto also died as a result of injuries received in the accident.

At trial there was conflicting evidence adduced as to appellant's drinking prior to the collision and as to the speed of his car shortly before the accident. Testimony as to the former issue ranged from 'one or two beers' to an admission that the four people in his car had completed nearly an entire case of beer. At the hospital, the defendant's blood alcohol level was tested at .165%. (The deceased driver had a blood alcohol level of .105%.) Taking the evidence most favorable to the State (as we must do for our purposes here), appellant was traveling between 70 and 90 miles per hour into a controlled intersection in a metropolitan area where the speed limit in the locality of the accident was 55 miles per hour. Traffic at the time and in the vicinity of the accident was described as 'fairly heavy'. There was no evidence of bad weather or other hazardous road conditions. Although there was conflicting evidence on the point, a witness for the State testified that preceding the accident Filmon had driven erratically, changing lanes frequently and abruptly; that in the process of lane changes he had pulled behind a series of automobiles, applying his brakes sharply. The accident occurred at approximately 8:00 p.m. and darkness had fallen to such a degree that motorists were driving with their headlights illuminated. Although there is also a conflict on this point, viewed in a light most favorable to the State the evidence is that Filmon had an amber or orange light as he proceeded into the intersection where the accident occurred.

Appellant was charged in two Informations with the deaths of the occupants of the automobile struck by the automobile driven by him. Each Information contained two counts--(i) causing the death of another by operating a motor vehicle with culpable negligence in violation of Section 782.07, Florida Statutes, and (ii) causing the death of another through the operation of a motor vehicle while intoxicated in violation of Subsection 860.01(2), Florida Statutes. Appellant moved to suppress several items of evidence including, inter alia, the results of the blood alcohol test performed on him at the hospital by personnel enumerated in Subsection 322.261(1), Florida Statutes 1973.

At the hearing before the trial judge the following facts were stipulated: (1) Mr. Filmon had not been arrested at the time the blood was drawn; (2) no consent was obtained from him to secure the blood sample; (3) a blood sample was taken from everyone involved in the accident; (4) no search warrant was obtained to take the blood of anyone involved in the accident; (5) the appellant was never cited for driving while intoxicated; (6) the officer who directed that the blood be drawn from the people was not present at the scene of the accident; (7) the blood test was taken about an hour after the accident; (8) there were three people other than the appellant in the vehicle at the time of the collision. In addition to these stipulations, testimony was elicited from the officer who directed that the sample be taken. He stated that no one ever attempted to secure a sample for purposes of alcohol analysis through any method other than extraction of blood. Mr. Filmon was also conscious, he had to be physically restrained, he smelled of alcohol at the hospital, and he was belligerent with the nurses. The officer also stated that he did not know who was driving the vehicle at the time that he ordered that the blood test be performed.

Based on the foregoing stipulations and evidence, the court denied appellant's motion and held that the procedure utilized to secure the blood test did not deny appellant equal protection of the law as secured by the Constitution of the United States and the Constitution of the State of Florida.

The State introduced in evidence at trial the results of the blood alcohol test; however, no testimony was introduced relating those results to any degree of intoxication. The court, therefore, directed a verdict as to the second count of each Information. The court denied a requested directed verdict on the first count of each Information. Appellant was convicted by the jury of the crime charged in the first count of each Information.

Apart from the constitutional question which vests this Court with jurisdiction, appellant raises two other points which merit our consideration, i.e., that the evidence was insufficient as a matter of law to support a finding of guilt of culpable negligence and that the trial court erred in refusing to give appellant's requested jury instruction relating to execution of a left turn as preseribed by Section 316.122, Florida Statutes.

Concerning the sufficiency of the evidence, appellant asserts the proposition enunciated in Russ v. State, 140 Fla. 217, 191 So. 296 (1939), that excessive speed alone is not sufficient to support a conviction under the manslaughter by culpable negligence statute. It should be noted that in the Russ case, Supra, there was no evidence of consumption of alcohol by the defendant. This question concerning the evidence necessary to sustain a conviction under Section 782.07, Florida Statutes, and its predecessors, has been considered by this Court and the District Courts of Appeal of Florida on numerous occasions. Different results have obtained depending on the facts of each particular case. See Cannon v. State, 91 Fla. 214, 107 So. 360 (1926); Preston v. State, 56 So.2d 543 (Fla.1952); Smith v. State, 65 So.2d 303 (Fla.1953); Miller v. State, 75 So.2d 312 (Fla.1954); Hunt v. State, 87 So.2d 584 (Fla.1956); Johnson v. State, 92 So.2d 651 (Fla.1957); and Jackson v. State, 100 So.2d 839 (Fla.App.1st, 1958).

The recent case of Peel v. State, 291 So.2d 226 (Fla.App.1st, 1974), is relied upon heavily by appellant to support his assertion that the evidence in the case at bar was insufficient to support the convictions. Briefly stated, the facts in the Peel case disclose that the defendant was traveling at 40 to 50 miles per hour as he approached an intersection controlled by a stop sign; he did not stop or slow down upon entering the intersection; and as he made a right turn at the intersection he collided with the decedents' car which was traveling on the intersecting road at right angles to the defendant. Although there was evidence that the defendant in the Peel case had been consuming alcohol there was no evidence in the record that he was exceeding the speed limit. The District Court of Appeal concluded that the conduct of the defendant did not constitute that high degree of negligence required for conviction of manslaughter and, relying upon Preston v. State, supra, determined that the additional factor of evidence of intoxication on the part of the defendant was not sufficient to convert the defendant's conduct into the category of culpable negligence. As in the case at bar, the defendant in the Peel case was charged with two intoxication counts as well as two culpable negligence counts, but he was acquitted by the jury on the two intoxication counts.

A clear statement of the conduct necessary to constitute culpable negligence under the statute is enunciated by Mr. Justice Drew in Miller v. State, supra, at 313, 314, where it is stated:

'The culpable conduct necessary to sustain proof of manslaughter under Section 782.07, supra, '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 there is that Entire want of care which would raise the presumption of a Conscious indifference to consequences, or which shows Wantonness or recklessness, or a 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.'"

However, in applying the foregoing standard every case of manslaughter by culpable negligence must be determined upon the facts and circumstance peculiar to that case. Scarborough v. State, 188 So.2d 877 (Fla.App.2nd, 1966). It cannot be controverted that Russ v. State, supra, and its progeny, cited heretofore and concluding with Peel v. State, supra, stand for the proposition that...