Norstrom v. State, 89-1966

Citation587 So.2d 1148
Decision Date07 August 1991
Docket NumberNo. 89-1966,89-1966
PartiesEric C. NORSTROM, Appellant, v. STATE of Florida, Appellee. 587 So.2d 1148, 16 Fla. L. Week. D2063
CourtCourt of Appeal of Florida (US)

Michael Salnick of Salnick & Krischer, West Palm Beach, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Joan Fowler, Asst. Atty. Gen., West Palm Beach, for appellee.

STONE, Judge.

We reverse appellant's conviction on counts of vehicular homicide, culpable negligence and reckless driving, and remand for a new trial. According to a statement made by the 16-year-old defendant, on the night of March 25, 1988, he drove to a party attended by fellow high school students. He drank about four eight-ounce cups of beer while there. After the party, the students gathered at the end of High Ridge Road, parking their cars along the side of the road and standing around near them and in the road at the end of the dead-end street. There were no street lights in the area.

Sometime before midnight, appellant left the High Ridge Road party to take a friend home. He then headed back to pick up another friend. He had difficulty finding the party again. He drove down the street at what he estimated to be seventy to seventy-five miles per hour. By the time he saw the people at the end of the street, it was too late to stop. He slammed on the brakes and lost control of his car. The car struck seven persons, killing one and seriously injuring two others. Several cars were also struck.

Following the accident, appellant told his friend to find a police officer. The friend found Officer Oliphant who testified that his sergeant had requested him to pick up somebody involved in a traffic accident with injuries. The officer also testified that he could not be certain that he handcuffed appellant, but told him he was under arrest, and believed he told him it was for a traffic accident with injuries. He did not advise appellant of his rights.

Officer Thomas, who was with Officer Oliphant, subsequently testified that appellant was not handcuffed, and that he (Thomas) was not aware that appellant was under arrest. However, he conceded that it was possible that Officer Oliphant told appellant he was under arrest. The officers took appellant and his friend to the police station, and (although he did not smell any alcohol), Officer Oliphant later took appellant to Bethesda Hospital for a blood alcohol test.

Marie Lavoie, the officer in charge of the investigation, spoke with appellant at the police station, and later testified that he was not under arrest at that time. She testified that he was not in custody and that he gave a taped statement which was part of the accident investigation. Officer Lavoie read Miranda warnings to the appellant prior to questioning him. Officer Lavoie also told him:

What I need to do here Eric so you understand is read you what we have the rights card here. Anytime we talk to anybody involving an investigation like we are doing it is important that you understand what your rights are. It doesn't mean anything other than that it is important to us that you understand what your rights are. Do you understand that? Okay, this is one of those things is a big deal and I want to make sure we're understanding each other Okay?

After appellant told Officer Lavoie and Detective Bean what he could recall about the accident and the events of that night, Officer Lavoie stated:

Alright, Eric, I'm going to let you know at this point that we're gonna kinda change hats here, ok? It's an accident with serious injuries and we do have a fatality so pending on the results of the blood test that was taken from you at the hospital, if it comes back that you were under the influence of alcohol at the time then proper charges will be filed. I have to let you know that so I'm just going to ask you a few questions that would cover that aspect as far as the DUI charge, driving under the influence charge. Do you understand?....

The officer then asked appellant some questions regarding his drinking that night. She later acknowledged that she made the "changing hats" remark as a way to signify to appellant that she was going from the accident portion of the investigation into the criminal portion of the investigation.

The record does not reflect that the officer ever told the appellant that he was required to answer any questions or otherwise referred to his obligation under the accident investigation statute. We also note that the trial court recognized that even if appellant was not under "arrest," he was clearly being detained in police custody.

The blood alcohol test, approximately two and a half hours after the accident, revealed that appellant's blood alcohol content was .00. He was subsequently charged with vehicular homicide, reckless driving, and two counts of culpable negligence. Defense counsel filed a motion to suppress appellant's statement, which the court denied following a hearing. Appellant also filed a motion in limine requesting, in part, that the court preclude the state from introducing testimony regarding his drinking on the night of the accident. He maintained that any testimony about drinking would not be relevant. The court denied the motion.

Appellant argues that his statement was privileged under section 316.066, Florida Statutes (1988) because it was made for purposes of an accident investigation.

Section 316.066 (1988) provides, in part:

Each accident report made by a person involved in an accident shall be without prejudice to the individual so reporting and shall be for the confidential use of the department or other state agencies having use of the records for accident prevention purposes.... No such report shall be used as evidence in any trial, civil or criminal, arising out of an accident....

The Florida Supreme Court addressed this statute as it pertained to the results of a blood alcohol test in Brackin v. Boles, 452 So.2d 540 (Fla.1984):

We now see no need for a distinction between the accident report investigation and the criminal investigation except as it pertains to a defendant's individual communications to a police officer or in a report submitted by a defendant in accordance with the statute....

... The statute only prohibits the use of communications "made by persons involved in accidents" in order to avoid a fifth amendment violation. The distinction this Court has previously made between investigations for accident report purposes and investigations for purposes of making criminal charges is artificial, is not a proper interpretation of the statute, and must be eliminated. We clearly and emphatically hold that the purpose of the statute is to clothe with statutory immunity only such statements and communications as the driver, owner, or occupant of a vehicle is compelled to make in order to comply with his or her statutory duty under section 316.066(1) and (2). (emphasis added)

In Yost v. State, 542 So.2d 419 (Fla. 4th DCA 1989), this court, citing to Brackin, held it to be reversible error for the trial court to allow testimony of the investigating officer that appellant advised him at the scene that he had consumed six or seven beers. Admitting such testimony violated section 316.066(4). See also Thomas v. Gottlieb, 520 So.2d 622 (Fla. 4th DCA 1988).

In Alley v. State, 553 So.2d 354 (Fla. 4th DCA 1989), rev. denied, 563 So.2d 634 (Fla.1990), appellant appealed her conviction for driving under the influence-manslaughter. At the scene of the accident, appellant stated that she had been drinking. This court addressed whether appellant's statements at the scene and later at a medical clinic were given during the accident report phase of the investigation. It concluded:

There is substantial competent evidence to conclude the accident investigation phase continued until the officer gave appellant her Miranda warnings at the medical clinic. Appellant made the questioned statements during the accident phase of the investigation.

Appellant argues that although the detectives gave him Miranda warnings prior to taking his statement, Officer Lavoie testified that she considered, at all relevant times, that she was investigating and questioning appellant about an accident and not a crime. Appellant maintains the accident investigation continued at least until Lavoie "changed hats." Consequently, appellant maintains that the fact that he was given Miranda warnings did not deprive him of the statutory privilege. See also Pastori v. State, 456 So.2d 1212 (Fla. 2d DCA 1984).

In West v. State, 553 So.2d 254 (Fla. 4th DCA 1989), this court recognized that it may be difficult for a defendant to realize when an accident investigation has ended and a criminal investigation has begun, and determined that unless a defendant has been apprised by police that the questions being asked are part of a criminal investigation the statements made in response to those questions will be deemed privileged. West held that the statements fell within the accident investigation privilege where appellant was subjected to express questioning while in police custody both before and after being informed of his Miranda rights. See also the pre-Brackin opinions, Elder v. Robert J. Ackerman, Inc., 362 So.2d 999 (Fla. 4th DCA 1978), cert. denied, 368 So.2d 1366 (Fla.1979); Porter v. Pappas, 368 So.2d 909 (Fla. 3d DCA 1979).

Appellant notes that his statement contained details about what happened before, during and after the accident that the jury could not have known absent its admission. He argues that the state made its case based primarily on his statement. At trial witnesses gave conflicting testimony about the speed he was traveling. Additionally, two officers gave conflicting testimony concerning skid marks at the scene.

The state maintains that, notwithstanding Officer Lavoie's impressions, appellant was read the Miranda warnings and signed the rights card. One officer testified that ...

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5 cases
  • Stephens v. State
    • United States
    • Arkansas Supreme Court
    • May 8, 1995
    ...were used by Gibson in the preparation of the report which was filed. Appellant's only authority for his argument is Norstrom v. State, 587 So.2d 1148 (Fla.Dist.Ct.App.1991), in which the Florida District Court of Appeal held the trial court erred in admitting the taped statement of motoris......
  • Davison v. State, 95-2460
    • United States
    • Florida District Court of Appeals
    • December 12, 1996
    ...State, 329 So.2d 349 (Fla. 4th DCA 1976)(conviction reversed even though record indicated .13 blood alcohol content); Norstrom v. State, 587 So.2d 1148 (Fla. 4th DCA 1991), quashed in part on other grounds, State v. Norstrom, 613 So.2d 437 (Fla.1993); see also Woodward v. State, 274 So.2d 2......
  • State v. Riley
    • United States
    • Florida District Court of Appeals
    • April 13, 1993
    ...of the accident report privilege. Expressly relying upon West v. State, 553 So.2d 254 (Fla. 4th DCA 1989), and Norstrom v. State, 587 So.2d 1148 (Fla. 4th DCA 1991), the trial judge found that since the officer did not apprise Riley that a criminal investigation was underway, that Riley's s......
  • Norstrom v. State, 89-1966
    • United States
    • Florida District Court of Appeals
    • April 7, 1993
    ...State v. Norstrom, 613 So.2d 437 (Fla.1993). In doing so, we have reviewed all issues not resolved by our opinion in Norstrom v. State, 587 So.2d 1148 (Fla. 4th DCA 1991). We find error only as to one sentencing issue. Appellant should not have been convicted of both reckless driving and ve......
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