Lewek v. State

• Decision Date: 22 October 1997
• Docket Number: No. 96-1394,96-1394
• Citation: 702 So.2d 527
• Parties: 22 Fla. L. Weekly D2471, 23 Fla. L. Weekly D102 Charles LEWEK, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 527

702 So.2d 527

22 Fla. L. Weekly D2471, 23 Fla. L. Weekly D102

Charles LEWEK, Appellant, v. STATE of Florida, Appellee.

No. 96-1394.

District Court of Appeal of Florida,

Fourth District.

Oct. 22, 1997.

Opinion Denying Rehearing Dec. 24, 1997.

Richard L. Jorandby, Public Defender, and Alisa Smith Holden, Special Assistant Public Defender, Law Office of Michael L. Klein, Fort Lauderdale, for appellant.

Richard L. Jorandby, Public Defender, and Alisa Smith Holden, Special Assistant Public Defender of the Law Offices of Michael L. Klein, Fort Lauderdale, Margaret Good-Earnest Robert A. Butterworth, Attorney General, Tallahassee, and Carol Cobourn Asbury, Assistant Attorney General, West Palm Beach, for appellee.

Assistant Public Defender, West Palm Beach, for appellant on rehearing.

PER CURIAM.

Appellant, Charles Lewek ("Defendant"), appeals his two convictions for vehicular homicide following a tragic accident in which a young pregnant mother and her eighteen-month-old son were killed. The Defendant raises several points on appeal, but we need address only three.

A. Whether the Defendant's Rights Were Violated Pursuant to Coney v. State?

The Defendant first argues that his due process rights were violated because he did not participate in jury selection and the trial court failed to certify his waiver of that right on the record. See Coney v. State, 653 So.2d 1009 (Fla.1995). Although defense counsel waived the Defendant's right to be present at the bench conference during which peremptories strikes were exercised, the trial court failed to obtain the Defendant's certification of the jury panel on the record, as required by Coney. See id. at 1012-13. Because the Defendant's due process right to participate in all pertinent aspects of trial was violated, the Defendant is entitled to a new trial. Ellis v. State, 696 So.2d 904 (Fla. 4th DCA 1997).

We reject the State's argument that reversal is unnecessary. The State argues that because the January 1, 1997, amendment to Florida Rule of Criminal Procedure 3.180(b) should be applied retroactively to this case, the Defendant would not receive any additional rights if he were retried on remand. The State's argument assumes that the 1997 amendment will automatically return us to an era of pre-Coney decisions, wherein a defendant would not have the right to be immediately present during the exercise of peremptory challenges. While Florida courts have speculated that this is the effect of the 1997 amendment, see, e.g., Chavez v. State, 698 So.2d 284, 287-88 (Fla. 3d DCA 1997)(en banc)(Levy, J., dissenting), the Florida Supreme Court has not stated as much. Furthermore, consistent with the Florida Supreme Court's repeated statement that the Coney rule is not retroactive, see, e.g., State v. Mejia, 696 So.2d 339 (Fla.1997); Henderson v. State, 698 So.2d 1205 (Fla.1997); Boyett v. State, 688 So.2d 308 (Fla.1996), the majority of Florida district courts, including this Court, has specifically held that the 1997 amendment to rule 3.180(b) shall not be applied retroactively. See Ellis, 696 So.2d at 905 n. 1; Chavez, 698 So.2d at 284-86; Goney v. State, 691 So.2d 1133 (Fla. 5th DCA 1997). Accordingly, because the 1997 amendment to rule 3.180(b) is not to be applied retroactively, it cannot affect our decision today.

B. Whether the Defendant Was Entitled to a Judgment of Acquittal for Vehicular Homicide?

The Defendant argues that the trial court erred in denying his motion for judgment of acquittal for vehicular homicide. In moving for judgment of acquittal, a defendant admits all facts introduced into evidence. See, e.g., Fratello v. State, 496 So.2d 903 (Fla. 4th DCA 1986). Every fair and reasonable inference must be drawn in favor of the State. See, e.g., McConnehead v. State, 515 So.2d 1046 (Fla. 4th DCA 1987). The Defendant argues that under this standard, he is entitled to a discharge from his vehicular homicide convictions on the premise that the evidence fails to show he was driving recklessly. See § 782.071, Fla. Stat. (1995)(defining vehicular homicide as the killing of a person by the operation of a motor vehicle in a reckless manner likely to cause death or great bodily harm).

In determining whether the trial court erred in denying the Defendant's motion for judgment of acquittal, we must first explore what actions will constitute reckless driving. Driving recklessly means driving with a willful or wanton disregard for safety. See State v. May, 670 So.2d 1002 (Fla. 2d DCA 1996). "Willful" means "intentional, knowing, and purposeful," and "wanton" means with a "conscious and intentional indifference to consequences and with knowledge The admissible evidence in this case, taken in the light most favorable to the State, reveals that the Defendant knowingly drove under the following circumstances. The accident occurred one bright, clear morning in the midst of rush hour traffic at the corner of Haverhill Road and Community Drive in West Palm Beach. At a few minutes past 8:30 a.m., the Defendant, traveling northbound on Haverhill Road, approached the intersection with Community Drive. The Defendant was driving a car with shallow tire tread, a missing lug nut, and window tinting that was too dark and placed too low on the front windshield. While the speed limit on this multi-laned, residential road was 45 miles per hour, the Defendant was traveling at approximately 60 miles per hour. When the Defendant was more than 150 yards from the intersection, the traffic light at Haverhill Road and Community Drive turned yellow. At the time, the victim, Lisa Montague, was facing southbound on Haverhill Road, stopped just inside the intersection waiting to make a lefthand turn to go east on Community Drive. As the Defendant approached the intersection, he did not slow down, but continued traveling in excess of the speed limit. After the traffic light had been red for five seconds, the Defendant accelerated through the intersection, hitting the passenger's side of Lisa's car as she attempted to turn east onto Community Drive. When the Defendant finally applied his brakes an instant before impact, his brakes locked. The estimated at-impact speed of the Defendant's car was approximately 48 miles per hour. Lisa's body was partially ejected through the passenger's side window, her thighs landing upon her eighteen-month-old son and crushing him. Lisa and her son died as a result of this accident.

                that damage is likely to be done to persons or property."  W.E.B. v. State, 553 So.2d 323, 326 (Fla. 1st DCA 1989)(quoting Fla.  Std. Jury.  Instr.  (Misd.)  (reckless driving)).  In other words, the degree of culpability required to prove reckless driving is less than culpable negligence, which is the standard for manslaughter, but more than a mere failure to use ordinary care.  See McCreary v. State, 371 So.2d 1024 (Fla.1979);  State v. Esposito, 642 So.2d 25 (Fla. 4th DCA 1994).  Although the Defendant need not have foreseen the specific circumstances causing the death of the victims, it is sufficient that the Defendant should have reasonably foreseen that the same general type of harm might occur if he knowingly drove his vehicle under circumstances that would likely cause death or great bodily harm to another.  See W.E.B., 553 So.2d at 323.   Therefore, to determine whether the Defendant was driving recklessly, the question is whether the Defendant could reasonably foresee that if he knowingly drove his vehicle in such a manner and under such conditions as he did, he was likely to cause death or great bodily harm;  the victim's conduct is irrelevant unless it was the sole proximate cause of the homicide or unless there is some reason why it would be unjust or unfair to impose criminal liability.  See Union v. State, 642 So.2d 91, 92 (Fla. 1st DCA 1994).  Thus, the focus is on the defendant's actions, i.e., what are the circumstances under which he knowingly drove, and was it reasonably foreseeable that death or great bodily harm could result
                

We conclude that by knowingly driving under these circumstances, the Defendant operated his vehicle in a reckless (i.e., willful or wanton) manner because it should have been reasonably foreseeable to him that death or great bodily harm was likely to result by driving under these circumstances. See, e.g., McCreary, 371 So.2d at 1024; Byrd v. State, 531 So.2d 1004 (Fla. 5th DCA 1988); Hamilton v. State, 439 So.2d 238 (Fla. 2d DCA 1983); Savoia v. State, 389 So.2d 294 (Fla. 3d DCA 1980). Because the admissible evidence shows the Defendant killed two people by operating a motor vehicle in a reckless manner likely to cause death or great bodily harm, the State presented sufficient evidence to establish two prima facie cases of vehicular homicide. Consequently, the trial court did not err in denying the Defendant's motion for judgment of acquittal on the vehicular homicide charges.

C. Whether the Trial Court Abused Its Discretion in Admitting Certain Evidence?

Related to the Defendant's argument that the State failed to establish two prima facie cases for vehicular homicide is his contention First, we disagree with the Defendant's contention that the trial court improperly allowed a lay witness to give an expert opinion regarding the approximate speed of the Defendant's car. "An estimate of the speed at which a conveyance or other object was moving at a given time is generally viewed as a matter of common observation rather than expert opinion, and it is well settled that any person of ordinary ability and intelligence having the means or opportunity of observation is competent to testify to the rate of speed of such a moving object." Albers v. Dasho, 355 So.2d 150, 153 (Fla. 4th DCA 1978)(quoting 31 Am.Jur.2d, Expert and Opinion Evidence § 157). But see Lawlor v. State, 538 So.2d 86 (Fla. 1st DCA 1989). A lay witness's opportunity of observation is critical to admissibility regarding the speed of an object because the lay...