Santisteban v. State

• Decision Date: 31 October 2011
• Docket Number: No. 4D09–229.,4D09–229.
• Parties: Flavio SANTISTEBAN, Appellant,v.STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

72 So.3d 187

Flavio SANTISTEBAN, Appellant,
v.
STATE of Florida, Appellee.

No. 4D09–229.

District Court of Appeal of Florida, Fourth District.

Sept. 14, 2011.Rehearing Denied Oct. 31, 2011.

[72 So.3d 190]

Bryant R. Camareno, Tampa, for appellant.Pamela Jo Bondi, Attorney General, Tallahassee, and Diane F. Medley, Assistant Attorney General, West Palm Beach, for appellee.WARNER, J.

Appellant challenges his conviction and sentence for four counts of vehicular manslaughter. He makes four claims: (1) that the trial judge erred in failing to recuse himself from the appellant's criminal case when he was presiding over a civil case involving the deaths of the individuals; (2) that the evidence did not support a finding of criminal negligence; (3) that the verdict was “inconsistent with the weight of the evidence”; and (4) that the court erred in failing to grant a more significant downward departure. As to issue one, appellant's motion was technically deficient but failed to state a legally sufficient ground for disqualification; as to issue two, we find that the state presented sufficient evidence of defendant's reckless conduct to survive a motion for judgment of acquittal; and as to issue three, the appellate court has no authority to overturn a verdict simply because it believes that it is inconsistent with the evidence. Finally as to issue four, while the extent of a downward departure generally is not appealable, we find that the trial judge relied upon constitutionally impermissible considerations in determining the extent of the downward departure. We therefore affirm the convictions, but remand for resentencing before a different judge.

Appellant was charged by amended information with four counts of vehicular homicide, arising out of a February 11, 2005, gasoline tanker accident that killed four people: Gloria Halpern, Alan Klein, Deborah Klein, and Anita Epstein. The trial took several days with multiple witnesses, revealing a tragic set of circumstances.

At approximately 10:30 on the night of the incident, appellant was driving a gasoline tanker from I–595 in Fort Lauderdale onto the northbound entrance ramp to the Florida Turnpike. The tanker contained over 9,000 gallons of fuel. Appellant entered the curving turn of I–595 onto the turnpike substantially in excess of the 35–mile–per–hour posted speed. Meanwhile, the four victims occupied a white 2001 Mercury, which was traveling ahead of the tanker.

Two lay witnesses, Christina Robinson and Maria Thompson, saw the events leading up to the accident. Ms. Robinson testified that she had driven eastbound on I–595, before exiting to go northbound on the Florida Turnpike. Just prior to entering the northbound ramp, she looked to her left so she could merge to get into the

[72 So.3d 191]

lane for the Turnpike. In her rearview mirror, she saw a smaller white vehicle to her left, one or two car lengths behind her. She also saw “larger white lights behind that white vehicle.” As she approached the ramp, the large white lights came behind her vehicle, getting closer and larger. Ms. Robinson accelerated because the white lights were coming closer, but she was not gaining any distance between her vehicle and the lights. She estimated that while traveling the ramp to the Turnpike entrance, her speed varied from 25 to 40 miles per hour. Ms. Robinson noticed that the large white lights behind her had started merging into the left lane where they began to “wiggle, jiggle like they were losing control almost.” At this point, Ms. Robinson could tell it was a large tanker which was out of control. The front cab started veering to the left, “almost like a jackknifing position.” Ms. Robinson started to slow down and move over “when the front of the cab flipped over on the driver's side.” As the truck started to lose control, Ms. Robinson saw the smaller white vehicle jam on its brakes and skid.

When Ms. Robinson stopped and got out of her car, she saw that the tanker had flipped over on its side, but she could not see the white vehicle. The truck had caught fire. At first, the fire was self-contained in the rear of the truck, but the flames started to grow, engulfing the entire truck. Gasoline had spilled down the roadway, and both lanes on the ramp became covered in flames. She called 911 and, as she was on the phone, she saw appellant come over the guardrail. She was unable to communicate with him, however, because he spoke Spanish.

Maria Thompson, who was driving home with her six-year-old son, also witnessed the accident. She was exiting I–595 to go onto the northbound Turnpike. There was not much traffic at the time. She testified that she was driving in the right lane when a tanker truck cut her off as the truck was merging onto the north Turnpike. She hit the brakes and slowed down “because he was going fast” and she did not want to be near him. Her car did not make contact with the tanker. She testified that she was driving about 25 to 30 miles per hour when the tanker cut her off. She could not say how fast the tanker was going, but she explained that it was “more than normal and faster than [she] was going.”

Ms. Thompson saw a white car “way ahead” in the left lane, approximately ten car lengths ahead of her. She saw the tanker swerving back and forth because he was obviously “losing control and trying to get control of it.” The tanker went onto its two left wheels, flipped over on its side, and then skidded. Fluid was spreading and the rear of the truck was on fire, so she backed up to get on the southbound Turnpike, then made a U-turn to head north and proceed back home. As she was passing back by the crash site, there was an explosion and the fire spread onto the Turnpike. She did not stop at the crash site because her son was “extremely scared,” but she later contacted the police.

Appellant lost control of the tanker, which rolled over on its side, slid to a stop, and became engulfed in flames. While not apparently hit by the skidding tanker, the Mercury vehicle skidded and was trapped by the tanker when it came to rest. The tanker caught fire and exploded, engulfing the Mercury in flames. Witnesses saw one individual, Mr. Klein, exit the Mercury in burning clothes. He ran to a nearby retention pond and fell in. The medical examiner found that he had died of drowning but had thermal burns over 65% of his body. The other three occupants of the vehicle died of “conflagration with injuries.”

[72 So.3d 192]

The state's accident reconstruction expert, Donald Felicella, testified to his opinion that “[t]he cause of the traffic crash was that the driver of the tanker truck came through that curve at a speed that was too fast to negotiate it. And he was cutting the corner part in the right lane and part off the road. And that his speed is what caused the vehicle to overturn.” Using a mathematical formula, Felicella opined that speed of the tanker at the time of the rollover was 56 to 60 miles per hour.¹ Damage to the white Mercury vehicle was from the heat of the fire. The vehicle did not have significant crush damage, indicating that there was no significant impact with the tanker.

Felicella noted that there was an advisory sign of 35 miles per hour at the beginning of the ramp to the Turnpike, but the posted speed limit was 65 miles per hour. He acknowledged that a driver cannot be issued a speeding ticket for driving in excess of an advisory speed. However, in Felicella's opinion, a driver of a full gasoline tanker could not safely navigate the entrance ramp's curve at 65 miles per hour without rolling over.

After the state rested, the defense moved for a judgment of acquittal, arguing that the state failed to establish that appellant operated the vehicle in a reckless manner. The defense argued that this was simply a traffic accident in which speed was a contributing factor, but appellant's speed alone did not mean his driving was reckless. The trial court denied the motion, concluding that the state had made a prima facie case.

The defense presented its case, consisting of its own accident reconstruction expert, Donald Moore, who differed from Felicella on the calculation of the speed of the tanker. He opined that appellant's tanker was probably traveling somewhere between 45 and 50 miles per hour at the time of the rollover. Moore calculated a worst-case scenario of 59 miles per hour, but believed that such a figure “probably is a little bit too high.”

After the defense rested and moved again for a judgment of acquittal, the trial court submitted the case to the jury. Against the recommendation of counsel, appellant refused jury instructions on any lesser-included offenses. After deliberations, the jury found appellant guilty of four counts of vehicular homicide as charged in the information.

The minimum guidelines sentence was 37 years, and the maximum was life in prison. The defense moved for a downward departure on the ground that the incident was “committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse.” The court pronounced a sentence of 36 years, downwardly departing by only a year. This appeal follows.

On appeal, appellant argues that the trial court erred in denying his motion to disqualify Judge Streitfeld. Judge Streitfeld was presiding over a civil case involving the incident. Because the judge's docket was cleared during the week that the criminal trial was set, he volunteered to help the assigned judge by taking the criminal case, as he already had familiarity with the case. Although not objecting at first, appellant later filed an “Objection to Case Reassignment,” objecting to Judge Streitfeld presiding in the criminal case, as he had already made a legal determination in the civil case that there was sufficient negligence to permit the plaintiff to plead a claim for punitive damages. Because the issue of the degree of appellant's negligence

[72 So.3d 193]

would also be raised in a...