Palmer v. State, 82-1328

• Decision Date: 03 May 1984
• Docket Number: No. 82-1328,82-1328
• Citation: 451 So.2d 500
• Parties: Rose M. PALMER, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 500

451 So.2d 500

Rose M. PALMER, Appellant, v. STATE of Florida, Appellee.

No. 82-1328.

District Court of Appeal of Florida Fifth District.

May 3, 1984.

Rehearing Denied June 18, 1984.

Gregory E. Tucci, of Berk & Tucci, P.A., Ocala, for appellant.

Jim Smith, Atty. Gen., Tallahassee, Richard B. Martell, Asst. Atty. Gen., Daytona Beach, for appellee.

MIZE, Associate Judge.

Rose M. Palmer appeals her conviction and sentence for two counts of vehicular homicide. Appellant has raised several points on appeal. Appellant argues that the trial court erred in admitting a certain posed photograph of one of the victims with his girlfriend into evidence, in prohibiting proposed testimony as to the blood alcohol level of the deceased victim who was the driver of the other vehicle, and in giving a special jury instruction requested by the State. We find that the trial court committed no reversible error and affirm.

On the evening of May 29, 1981, two pedestrians were walking across the grass median of U.S. Highway 301 near Ocala in Marion County. The grass median separated the northbound lanes from the southbound lanes of the four-lane highway. The witnesses testified that at approximately 11:00 p.m. they saw a white van pass them traveling north in the southbound fast lane at approximately 50 to 60 miles per hour. They turned to watch the van as it passed and saw headlights approaching in the southbound lanes in the distance. One witness testified that there appeared to be oncoming traffic in both of the southbound lanes. The testimony of the witness further revealed that a few seconds later the van driven by the appellant, Rose M. Palmer, and a southbound motorcycle crashed head-on. Two men on the motorcycle, Paul Utz (the driver) and Mark Kochen, were killed. Neither of the witnesses recalled the van or the motorcycle taking any evasive action to avoid the collision. Both vehicles had their headlights on and neither vehicle was observed braking immediately before the accident.

The testimony of Rose M. Palmer and Albert Palmer, her husband, revealed that Mrs. Palmer, after leaving the home of friends, was driving in an area of the county which was unfamiliar to her. She testified that she proceeded down the road from the friends' house to what she thought was a two-lane road (Old Ocala Road) but was in fact U.S. Highway 301. There were neither signs nor lights illuminating the intersection. Mistaking the two southbound lanes of U.S. Highway 301 for the north and south lanes of Old Ocala Road, a turn off she had in mind, Rose M. Palmer turned left into the fast southbound lane of U.S. Highway 301 and proceeded north believing herself to be in her own lane of traffic. She traveled about one-half mile with no other traffic on U.S. Highway 301 until she saw two headlights coming toward her in the slow southbound lane. As those lights approached she stated that another single light suddenly darted around the two oncoming headlights into the fast lane and a collision occurred. Subsequent to the accident it was determined that Rose M. Palmer had a blood alcohol level of .078 grams per deciliter.

Rose M. Palmer was charged with two counts of D.W.I./manslaughter and two counts of vehicular homicide. Following the State's case, a directed judgment of acquittal was granted as to the D.W.I./manslaughter charges and the trial proceeded as to the two vehicular homicide counts. The jury found Rose M. Palmer guilty of the two counts of vehicular homicide.

Appellant argues that the trial court erred in admitting into evidence a posed photograph of one of the victims, Mark Kochen, because it was taken while he was still alive and included his girlfriend. Appellant contends that the picture of the decedent was unnecessary and served only to inflame the passions of the jury. The fact that a photograph might tend to inflame the jury is insufficient by itself to constitute reversible error as long as the photograph has some relevancy either independently or to corroborate other evidence. Jackson v. State, 359 So.2d 1190, 1192 (Fla.1978), citing Young v. State, 234 So.2d 341 (Fla.1970). Here, the photograph had some relevancy with regard to the identity issue. Although it can reasonably be argued that the photograph was cumulative since the father of the decedent identified the body of the decedent at the morgue, the error, if any, in the admissibility of the photograph did not constitute harmful error because it was not of such a nature that would reasonably inflame the passions of the jury.

Appellant contends in her next point of appeal that the trial court erred in prohibiting the proffered testimony as to the blood alcohol level of the other victim, Paul Utz, who was the driver of the motorcycle. The State objected to the testimony based upon the decision set forth in Filmon v. State, 336 So.2d 586 (Fla.1976) a culpable-negligence manslaughter case. In that case the supreme court stated clearly on page 591 that the acts of the decedent can neither add to nor detract from the quality of the appellant's conduct. The reasoning in Filmon should apply to a vehicular homicide case. If, in a culpable negligence case, the conduct of the decedent can neither add to nor detract from the quality of appellant's conduct unless it was the sole proximate cause of the accident, as Filmon states, then neither can the acts of the decedent Paul Utz be considered in such a manner in this case.

Appellant further appeals the trial court's following jury instruction:

... for purposes of prosecution for the offense of vehicular homicide, acts by the deceased can neither add to nor detract from a defendant's conduct and do not bear on the issue of wantonness or recklessness.

Appellant argues that the jury instruction was imprudently given as it informed the jury that appellant's testimony as to the suddenness of the accident and possibly even the testimony of a corroborative witness who saw headlights was insufficient as a matter of law for the jury to consider in reaching its verdict. Appellee contends that the instant instruction was probably unnecessary because the evidence as to the sobriety of the motorcycle operator had been excluded, but argues that the giving of the instruction was nevertheless harmless error.

As proximate cause is a required consideration in a vehicular homicide prosecution, the jury was entitled to consider any evidence which could possibly have shown that Paul Utz's conduct was the sole proximate cause of the accident. However, under the facts of this case, Paul Utz's conduct was clearly not the sole cause of the accident. In Harrell v. State, 405 So.2d 480 (Fla. 3d DCA 1981), the court held that, in order to secure reversal of a conviction, the burden is on the defendant to establish prejudice resulting from any trial error, absent any showing of actual reliance by the jury or constitutional error. While it may have been error on the part of the trial court to allow the instruction, no reason exists to presume that this instruction prejudiced appellant and therefore the error, if any, was harmless.

We therefore hold that the conviction of appellant is affirmed.

DAUKSCH, J., concurs.

SHARP, J., dissents with opinion

SHARP, Judge, dissenting.

I dissent because I think the evidence in this case is insufficient to establish beyond a reasonable doubt that Palmer was guilty of vehicular homicide. Even if the evidence is sufficient, it is marginal at best, and the trial judge's exclusion of the evidence of the motorcycle driver's blood alcohol level and his instruction that the jury should disregard the conduct of the motorcycle driver, deprived Palmer of a fair trial. The trial court relied upon Filmon v. State, 336 So.2d 586 (Fla.1976), in making both rulings. This case illustrates the danger of applying a broadly-stated rule of law out of context.

Palmer was convicted of vehicular homicide. This is defined as:

the killing of a human being by the operation of a motor vehicle by another in a reckless manner likely to cause the death of, or great bodily harm to, another. (Emphasis supplied.)

§ 782.071, Fla.Stat. (1981). Most jurisdictions interpret similar criminal statutes using the word "reckless" as requiring proof of willful or wanton conduct. In addition, the conduct must be intentionally embarked upon by the actor with the realization that it probably will cause injury to another. Annot., 52 A.L.R.2d 1337 (1957). Similarly, "reckless driving" is defined by section 316.192, Florida Statutes (1981), as driving a vehicle in "willful or wanton disregard for the safety of persons or property...."

In McCreary v. State, 371 So.2d 1024 (Fla.1979), our supreme court found that reckless, as used by the vehicular homicide statute, was a degree short of culpable negligence as used in the manslaughter statute, section 782.07, Florida Statutes (1975), but it was more than a mere failure to use ordinary care. The court defined culpable negligence as conduct which is gross and flagrant. It evinces, inter alia, "a grossly careless disregard of the safety and welfare of the public, or that reckless...