Tengbergen v. State

• Decision Date: 22 April 2009
• Docket Number: No. 4D07-2128.,4D07-2128.
• Citation: 9 So.3d 729
• Parties: Jason TENGBERGEN, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

9 So.3d 729

Jason TENGBERGEN, Appellant, v. STATE of Florida, Appellee.

No. 4D07-2128.

District Court of Appeal of Florida, Fourth District.

April 22, 2009.

Steven J. Hammer, Fort Lauderdale, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.

WARNER, J.

Jason Tengbergen appeals his conviction for DUI manslaughter. He makes three claims, none of which require reversal. First, he argues that the trial court erred in denying suppression of his post-Miranda statements, as they were obtained in a two-step "question-first" custodial interrogation in violation of Missouri v. Seibert, 542 U.S. 600, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004). We affirm the trial court, as we conclude that the statements were admissible under Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985). Second, he claims that the court erred in admitting a police officer's opinion on accident reconstruction without qualifying the officer as an expert. We disagree, as the court heard the evidence of the officer's qualifications and overruled the defense objection to his testimony on that ground. Third, he claims the court erred in failing to conduct a Richardson¹ hearing with respect to the expert testimony. However, the issue was addressed pre-trial, and his trial objection was waived by his failure to object when the expert evidence was introduced. We therefore affirm.

Around 10:00 p.m. on August 6, 2005, Lieutenant Scott Breton, an off-duty Palm Beach County sheriff, was driving his marked sheriff's vehicle in the left-hand lane northbound on Congress Avenue when he observed a vehicle speed past him about twenty miles over the speed limit. Breton sped up to catch the passing vehicle and saw it swerve to the right, hit the right-hand curb, and then jerk back into the lane of travel. The vehicle hit an object, but Breton could not tell what it was. As he passed the spot where the vehicle hit the object, he saw people and heard a woman screaming. Fearing that the vehicle had hit a person, Breton followed the vehicle which proceeded into a shopping center and then came to stop in a nearby neighborhood.

The driver, who was appellant Tengbergen, exited the vehicle yelling, "What did I do? What did I do?" Another individual approached him and yelled at Tengbergen that he had just hit somebody. Tengbergen responded, "Well, he shouldn't have been in the f____ing road." Breton placed Tengbergen in handcuffs and secured him inside the police vehicle. As Breton led him to the police vehicle, Tengbergen asked if he was under arrest and what was going to happen. Breton tried to keep him calm and told him that they would sort this all out.

The other individual who yelled at Tengbergen was a witness to the accident. Mr Rivas and his brother had turned northbound onto Congress in their vehicle when they encountered Tengbergen's vehicle which moved from the center lane into the right-hand lane, almost side-swiping the brothers' car. Tengbergen swerved and returned to the center lane where he almost hit a pickup truck. Tengbergen continued to drift between lanes, hitting the reflectors. Rivas called 911 because the vehicle was speeding and almost hit him and another vehicle. While he was on the phone with 911, the vehicle ran a red light. Rivas saw something crossing the road and then both brothers saw something flying through the air. When Rivas got closer, he realized that the vehicle had struck a person. Rivas pursued Tengbergen's vehicle and came upon it at the same time that Breton did. He jumped out and confronted Tengbergen. Breton took charge of Tengbergen and told Rivas to return to the victim.

Breton brought Tengbergen back to the scene of the accident. Officers were arriving at the scene, and Officer Pete Picciano of the Boynton Beach Police Department approached Tengbergen in Breton's vehicle. Picciano asked Tengbergen what happened. At his deposition, Picciano related that Tengbergen told him that "he was driving along and thought nothing of it when he hit [the victim]. He didn't see the police car in back of him trying to stop him after the fact." Picciano observed that Tengbergen's eyes were red and glassy, and he spoke with slurred speech. However, Picciano did not question him about drinking.

Officer Richard McNevin, the traffic homicide investigator for the Boynton Beach Police Department, arrived approximately a half an hour later. By that time the victim had died, and McNevin knew a homicide had occurred. He spoke with Picciano and then went over to Tengbergen who was still in handcuffs in the police vehicle. McNevin introduced himself as the lead investigator on the accident. He did not indicate that he was conducting a criminal investigation. McNevin asked Tengbergen what happened, and Tengbergen told him that "a person appeared out of nowhere and he struck him." McNevin asked other basic information, such as what direction Tengbergen was travelling—information necessary for the accident report. The conversation was brief.

After conducting further investigation of the scene and talking to other witnesses, McNevin sought a blood sample from Tengbergen, which he obtained at 12:10 a.m. Both Picciano and McNevin testified in their depositions that McNevin read Tengbergen Miranda rights prior to blood being drawn, although McNevin was less sure about this point than Picciano. An hour later McNevin took his statement, which was recorded. McNevin read Tengbergen his rights, and Tengbergen acknowledged each one. In his statement, Tengbergen admitted to having consumed alcohol and recited the details of his evening, including hitting the victim.

Tengbergen was eventually arrested and charged with DUI manslaughter and failure to render aid. He moved to suppress all of his statements. The state and defense agreed to suppress all statements made to Picciano and those made to McNevin prior his administering Miranda warnings. The court denied the motion as to statements made to McNevin after the warnings.

At trial, McNevin testified regarding his investigation and also as to his reconstruction of the accident. He did not observe any skid marks, which would indicate that the vehicle did not take any evasive action to avoid hitting the victim. He explained the body damage to the right side of the vehicle. When the state asked McNevin if he had an opinion as to what occurred when the vehicle hit the victim, defense counsel objected that McNevin had not been qualified as an accident reconstruction expert. The state elicited his training and education provided by the police department in the field of accident reconstruction. Over objection, the court permitted McNevin to offer an opinion as to what happened immediately after Tengbergen struck the victim. McNevin opined that "[a]fter the vehicle struck the pedestrian, the pedestrian's body rolled up on to the windshield. After impacting the windshield, and crushing in the windshield, it rolled off of the passenger side of the car and that is where the passenger's side mirror was ripped off" and that the impact "would ... have been in view of the driver of the vehicle at that moment." The actual impact occurred in the bicycle lane.

Toxicologist Dustin Yateman testified that at 12:12 a.m. when the blood samples were taken, Tengbergen's blood alcohol level was .227 and .228, which is more than double the legal limit. Using retrograde extrapolation, he calculated that Tengbergen's blood alcohol level at the time of the incident at 10:19 p.m. was .247 to .267. In arriving at this figure, Yateman considered Tengbergen's food consumption during the day. Yateman also considered that Tengbergen ingested his last drink approximately twenty minutes before the incident.

Although Tengbergen did not present any case in defense, he argued to the jury that the toxicologist's sampling was incorrect and that he was not impaired at the time of the accident. The jury found him guilty of DUI manslaughter, a lesser included offense of the charge. The court sentenced him to fifteen years in prison, with credit for time served. Tengbergen appeals.

I. Denial of Suppression of Post-Miranda Statement

On appeal, Tengbergen argues that the trial court erred in denying the post-Miranda portion of his statement to McNevin, as he claims it was obtained through a two-step question-first interrogation contrary to Missouri v. Seibert, 542 U.S. 600, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004). The trial court denied the motion to suppress his post-Miranda statement. We affirm, concluding that the statement was uncoerced, and his first statement did not taint the second statement.

"A trial court's ruling on a motion to suppress comes to the appellate court clothed with a presumption of correctness and the court must interpret the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to sustaining the trial court's ruling." Hunter v. State, 8 So.3d 1052 (Fla. Sept. 2008) (quoting Schoenwetter v. State, 931 So.2d 857, 866 (Fla.2006)). An appellate court accords a presumption of correctness to the trial court's ruling on motion to suppress with regard to the trial court's determination of historical facts, but independently reviews mixed questions of law and fact. Id. See also Lindo v. State, 983 So.2d 672, 675 (Fla. 4th DCA 2008).

In Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985), the United States Supreme Court considered whether the initial failure of law enforcement officers to administer Miranda warnings taints subsequent admissions made after a suspect has been fully advised of and has waived his Miranda warnings. An officer went to Elstad's home with a warrant for his arrest. In the presence of the suspect's mother, the officer explained that he had a warrant for his arrest for the burglary of a neighbor's residence. Elstad told the officer that he was...