Tollefson v. State, BS-381

• Decision Date: 11 May 1988
• Docket Number: No. BS-381,BS-381
• Citation: 13 Fla. L. Weekly 1102,525 So.2d 957
• Parties: 13 Fla. L. Weekly 1102 Leif TOLLEFSON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 957

525 So.2d 957

13 Fla. L. Weekly 1102

Leif TOLLEFSON, Appellant, v. STATE of Florida, Appellee.

No. BS-381.

District Court of Appeal of Florida,

First District.

May 11, 1988.

Rehearing Denied June 2, 1988.

Michael E. Allen, Public Defender, and Carl S. McGinnes, Asst. Public Defender, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen., and Mark C. Menser, Asst. Atty. Gen., Tallahassee, for appellee.

SHIVERS, Judge.

Defendant appeals his convictions and sentences for manslaughter by culpable negligence, DUI-manslaughter, leaving the scene of an accident involving death, DUI-property damage, leaving the scene of an accident involving property damage and resisting an officer with violence. He raises five issues on appeal, all of which merit discussion.

The facts of the case are undisputed. Appellant moved to Albany, Georgia, from Honolulu, Hawaii, in February of 1986. On May 10, 1986, appellant rented a car and drove to Panama City, Florida. At dinner that night, appellant drank a Margarita and then proceeded to a local bar where he estimated that he had five beers and five shots of whiskey. As appellant was leaving the bar in his rented Monte Carlo, his vehicle struck an automobile in the parking lot. Appellant did not stop but proceeded down a road and piloted the Monte Carlo into another vehicle. After hitting the second vehicle, appellant's vehicle veered off the road and hit and killed a pedestrian. Appellant continued until he reached the closed gate of a state park. Two brothers observed appellant ram the park gate with his car in an apparent effort to gain access to the park. While ramming the gate, the Monte Carlo got stuck in the sand. Appellant then started a fight with the two brothers who had initially offered assistance. Appellant bit one of the brothers several times and screamed obscenities at them.

When a police officer with a dog arrived on the scene, appellant threatened the officer and ran toward him. Appellant began fighting with the police dog but was eventually subdued. Appellant was taken, kicking and screaming, to the scene of his collision with the pedestrian. Appellant was transferred from the police car to an ambulance so that he could be taken to the hospital for treatment of injuries inflicted by the dog. He was placed on a stretcher with restraints. Appellant cursed repeatedly and spit saliva and blood on the paramedic and the interior of the ambulance. Appellant loudly threatened to file suit against the police officers he encountered. He cursed everyone and spit saliva and blood. His blood alcohol level was shown to be at least .21. Appellant states that he has no memory of events which occurred after he left the bar.

At appellant's trial, Dr. Clell Warriner, an expert in clinical psychology, testified that he examined appellant. He administered the Minnesota Multi-Phasic Personality Inventory and testified that appellant scored within normal limits in all categories. Dr. Warriner also administered the Rorschach Ink Blot Test and testified that appellant often gave unexpected or unusual answers. Dr. Warriner concluded that although appellant is ordinarily able to act as a responsible citizen without exhibiting wildness or bizarre behavior, he has the potential to act or be psychotic. Based upon his tests, interviews, and other information supplied to him concerning the facts of the case, Dr. Warriner expressed the opinion that he found no reason to believe appellant was not in the midst of an acute psychotic episode during the time the events in question took place, most likely triggered by a perceived threat.

Dr. Lawrence V. Annis, a clinical psychologist, also interviewed appellant and administered several psychological tests to him. After reviewing the results of the tests and other materials such as depositions, Dr. Annis expressed the opinion that although appellant was intoxicated, appellant was sane at the time of the offense. Dr. Harry A. McLarin, a clinical psychologist, also examined appellant and administered certain tests to him. Dr. McLarin concluded that appellant was sane at the time the offenses were committed. Both Dr. Annis and Dr. McLarin testified that the Rorschach Ink Blot Test, which was administered by Dr. Warriner and relied upon by him in his assessment of insanity, was an inadequate diagnostic tool for diagnosing insanity.

During the trial, the State moved to present evidence of a collateral offense which occurred nearly a month before the present offense, on April 12, 1986. On that date, appellant was arrested in Georgia for DUI. He was taken to the police station and given a breathalyzer test which revealed a blood alcohol level of .11. Although appellant was not violent at the time of his Georgia arrest, he was outspoken and belligerent and threatened to sue the police. The arresting officer testified that many people threaten to sue the police and that such comments were not unusual. The trial court admitted the evidence over defense counsel's objections.

At the conclusion of the trial, the court instructed the jury that the defense of insanity was not applicable to Count II, DUI-manslaughter, and to Counts IV and V, DUI-property damage. After deliberation, the jury returned verdicts finding appellant guilty of manslaughter by culpable negligence (a lesser included offense of the second-degree murder charged in Count I), DUI-manslaughter, leaving the scene of an accident involving death, DUI-property damage, leaving the scene of an accident involving property damage and resisting an officer with violence.

At sentencing, the trial court overruled several objections made by defense counsel concerning the sentencing guidelines scoresheet. Appellant was adjudged guilty of all charges and was sentenced to 12 years in prison, to be followed by 9 years of probation.

Appellant raises the following issues on appeal: (1) whether the trial court erred in admitting evidence of appellant's prior DUI arrest, (2) whether the trial court erred in instructing the jury that the defense of insanity was not applicable to the offenses of DUI-manslaughter and DUI-property damage, (3) whether the trial court erred in entering a written judgment adjudicating appellant guilty of DUI-manslaughter, (4) whether the trial court erred in approving a sentencing guidelines scoresheet recommending a sentence of 7-12 years imprisonment, and (5) whether the trial court erred in imposing three-year probationary terms for misdemeanor Counts IV and V, DUI-property damage, and misdemeanor Count VI, leaving the scene of an accident involving property damage.

Evidence of collateral crimes or acts committed by a defendant is inadmissible if its sole relevancy is to establish the defendant's bad character or the defendant's propensity to commit the crime. Williams v. State, 110 So.2d 654 (Fla.), cert. denied, 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86 (1959). Evidence of other crimes or acts is admissible, however,

"if it casts light upon the character of the act under investigation by showing motive, intent, absence of mistake, common scheme, identity or a system or general pattern of criminality so that the evidence of the prior offenses would have a relevant or a material bearing on some essential aspect of the offense being tried."

Id. at 662. See Section 90.404(2)(a), Fla.Stat. (1987). In order to be admissible, the collateral evidence must be relevant to a material fact in issue. Heuring v. State, 513 So.2d 122, 124 (Fla.1987).

In the instant matter, although the prosecution submits that proof of appellant's Georgia DUI is relevant to show lack of mistake, modus operandi and course of conduct, these "labels" are advanced without any connection to the facts of appellant's case. At trial, the prosecution advanced the theory that proof of appellant's Georgia DUI arrest would serve to rebut appellant's claim of insanity. Specifically, the State argued that appellant's remarks to the Georgia police that he would sue them are similar enough to his remarks to the Florida police to invalidate appellant's claim of insanity. However, statements made one month prior to appellant's charged offense would not rebut the theory that appellant was legally insane at the time the charged offenses occurred, since the nature of appellant's alleged insanity was that it was fleeting in duration. Furthermore, the differences between appellant's charged crimes and appellant's prior Georgia DUI offense overshadow the singular similarity between the two incidents.

In conclusion, the prosecution has failed to show that admission of the collateral crime was relevant to prove any material fact in issue. Because the State failed to advance any legal basis for the admission of testimony concerning appellant's prior Georgia DUI, it was error for the trial court to admit the testimony. Lee v. State, 508 So.2d 1300 (Fla. 1st DCA 1987).

However, because we find that the erroneous admission of appellant's prior Georgia DUI was harmless error, we decline to reverse on this issue. The standard by which an appellate court determines harmless error is whether, after an examination of the entire record on appeal, "there is a reasonable possibility that the error affected the verdict." DiGuilio v. State, 491 So.2d 1129, 1139 (Fla.1986). The application of the harmless error test requires "a close examination of the permissible evidence on which the jury could have legitimately relied, and in addition an even closer examination of the impermissible evidence which might have possibly influenced the jury verdict." Id. at 1135.

The appellate court is obligated to examine the record and make a determination as to whether the erroneous admission of collateral crime evidence is harmless. Lee, 508 So.2d at 1302-03. In DiGuilio, the court determined that the evidentiary error was not harmless because the legally permissible evidence brought forth during the trial was not clearly conclusive of ...