Velazquez v. State, 89-96

• Decision Date: 01 May 1990
• Docket Number: No. 89-96,89-96
• Parties: 15 Fla. L. Weekly D1205 Isaac Alejandro VELAZQUEZ, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 347

561 So.2d 347

15 Fla. L. Weekly D1205

Isaac Alejandro VELAZQUEZ, Appellant, v. The STATE of Florida, Appellee.

No. 89-96.

District Court of Appeal of Florida,

Third District.

May 1, 1990.

Rehearing Denied June 18, 1990.

David Mermell, Coral Gables, for appellant.

Robert A. Butterworth, Atty. Gen., and Yvette Rhodes Prescott and Anita Gay, Asst. Attys. Gen., for appellee.

Before SCHWARTZ, C.J., and HUBBART and GERSTEN, JJ.

HUBBART, Judge.

This is an appeal by the defendant Isaac Alejandro Velazquez from a final judgment of conviction and sentence for vehicular homicide which was entered below upon a nolo contendere plea. The defendant, upon entry of such plea, specifically reserved for appeal the denial of his pretrial motion to dismiss the information herein under Fla.R.Crim.P. 3.190(c)(4). The sole issue presented for review is whether a defendant driver of a motor vehicle who participates in a reckless and illegal "drag race" on a public road may be properly convicted of vehicular homicide [§ 782.071, Fla.Stat. (1987) ] for the death of one of the co-participant drivers suffered in the course of the "drag race"--when the sole basis for imposing liability is the defendant's participation in said race. We hold that the defendant may not be held criminally liable under the above statute in such case because the co-participant driver, in effect, killed himself by his voluntary and reckless driving in the subject "drag race" and thus the defendant's actions in engaging in the said race was not a proximate cause of the co-participant's death.

I

The defendant Velazquez was charged by information with the crime of vehicular homicide. Specifically, the information alleged that on April 23, 1988, the defendant

"did unlawfully and feloniously operate a motor vehicle in a reckless manner, to wit: Participated in a DRAG RACE, RAN A STOP SIGN and EXCEEDED the SPEED LIMIT with his VEHICLE, and thereby cause the death of ADALBERTO ALVAREZ, in violation of 782.071 Florida Statutes."

The defendant filed a motion to dismiss this information under Fla.R.Crim.P. 3.190(c)(4) on the ground that the undisputed material facts in the case demonstrated that the state did not, as a matter of law, have a prima facie case of vehicular homicide against the defendant. The defendant set forth in the motion to dismiss certain facts which he swore to be true in open court at the hearing on the subject motion. ¹ The state filed a traverse in which it altered one non-material fact stated in the motion to dismiss and added an additional set of facts based on sworn depositions taken in the case. Accepting the sworn facts stated in the motion to dismiss, as supplemented and altered by the traverse, the material undisputed facts in the case are as follows.

On April 23, 1988, at approximately 2:30 A.M., the defendant Velazquez met the deceased Adalberto Alvarez at a Hardee's restaurant in Hialeah, Florida. The two had never previously met, but in the course of their conversation agreed to race each other in a "drag race" with their respective automobiles. They, accordingly, left the restaurant and proceeded to set up a quarter-mile "drag race" course on a nearby public road which ran perpendicular to a canal alongside the Palmetto Expressway in Hialeah; a guardrail and a visible stop sign ² stood between the end of this road and the canal. The two men began their "drag race" at the end of this road and proceeded away from the canal in a westerly direction for one-quarter mile. Upon completing the course without incident, the deceased Alvarez suddenly turned his automobile 180 degrees around and proceeded east toward the starting line and the canal; the defendant Velazquez did the same and followed behind Alvarez. Alvarez proceeded in the lead and attained an estimated speed of 123 m.p.h.; he was not wearing a seat belt and subsequent investigation revealed that he had a blood alcohol level between .11 and .12. The defendant Velazquez, who had not been drinking, trailed Alvarez the entire distance back to the starting line and attained an estimated speed of 98 m.p.h. As both drivers approached the end of the road, they applied their brakes, but neither could stop. Alvarez, who was about a car length ahead of the defendant Velazquez, crashed through the guardrail first and was propelled over the entire canal, landing on its far bank; he was thrown from his car upon impact, was pinned under his vehicle when it landed on him, and died instantly from the resulting injuries. The defendant also crashed through the guardrail, but landed in the canal where he was able to escape from his vehicle and swim to safety uninjured.

Based on these facts, the trial court denied the motion to dismiss, finding that it was a question of fact for the jury as to whether the defendant's participation in the "drag race" was a sufficient legal cause of the deceased's death so as to support a conviction for vehicular homicide. The defendant subsequently entered a plea of nolo contendere and reserved for appeal the denial of his motion to dismiss; the trial court then placed the defendant on four years probation. This appeal follows.

II

The vehicular homicide statute, under which the defendant was charged and convicted, provides as follows:

" 'Vehicular homicide' is 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. Vehicular homicide is a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084."

§ 782.071(1), Fla.Stat. (1987). There are two statutory elements to vehicular homicide: (1) the defendant must operate a motor vehicle in a reckless manner likely to cause the death of, or great bodily harm to, another, and (2) this reckless operation of a motor vehicle must be the proximate cause of the death of a human being. Byrd v. State, 531 So.2d 1004, 1006 (Fla. 5th DCA 1988); M.C.J. v. State, 444 So.2d 1001, 1004-05 (Fla. 1st DCA), rev. denied, 451 So.2d 849 (Fla.1984); J.A.C. v. State, 374 So.2d 606, 607 (Fla. 3d DCA 1979), rev. denied, 383 So.2d 1203 (Fla.1980); compare Fla.Std. Jury Instr. (Crim.) 72 (1989) (vehicular homicide).

Contrary to the defendant's argument, we have no trouble in concluding that the first element of this offense is clearly established on this record. Plainly, the defendant operated a motor vehicle in a reckless manner, likely to cause death or great bodily harm to another, in that (a) he participated in a highly dangerous "drag race" with the deceased on a public road in which both lanes were used as a speedway, and (b) he drove his vehicle at the excessive speed of 98 m.p.h. during the "drag race." Without question, the defendant's motor vehicle operation endangered the lives of all persons in the vicinity of the "drag race," namely, people in other motor vehicles and nearby pedestrians. See McCreary v. State, 371 So.2d 1024 (Fla.1979).

The second element of this offense, however, has given us considerable pause, as no doubt it did the trial court, because no endangered third party in the vicinity of the "drag race" was killed in this case; moreover, it is here that the parties to this appeal marshal their primary authorities and argument. It is therefore necessary that we consult the Florida law on this subject, and survey as well the relevant law thereon throughout the country. Nonetheless, we approach this subject with a certain degree of caution, mindful that the problems raised by the element of "proximate cause" in cases of this nature "present enormous difficulty (especially in homicide [cases] ) because of the obscurity of that concept," an obscurity which has resulted in the announcement of "varying and sometimes inconsistent rules in the numerous areas in which the problem has arisen." Model Penal Code and Commentaries § 2.03 comment 1, at 255-56 (1985).

A

At the outset, it seems clear that the proximate cause element of vehicular homicide in Florida embraces, at the very least, a causation-in-fact test; that is, the defendant's reckless operation of a motor vehicle must be a cause-in-fact of the death of a human being. In this respect, vehicular homicide is no different than any other criminal offense in which the occurrence of a specified result, caused by a defendant's conduct, is an essential element of the offense--such as murder, [§ 782.04, Fla.Stat. (1989) ], manslaughter [§ 782.07, Fla.Stat. (1989) ], aggravated battery [§ 784.045, Fla.Stat. (1989) ], and arson [§ 806.01, Fla.Stat. (1989) ]. Clearly there can be no criminal liability for such result-type offenses unless it can be shown that the defendant's conduct was a cause-in-fact of the prohibited result, whether the result be the death of a human being, personal injury to another, or injury to another's property. To be sure, this cause-in-fact showing is insufficient in itself to establish the aforesaid "proximate cause" element in a vehicular homicide case, but it is clearly a sine qua non ingredient thereof. 1 W. LaFave & A. Scott, Substantive Criminal Law § 3.12(a),(b), at 390-96 (1986); Model Penal Code and Commentaries § 2.03 explanatory note, at 254 (1985).

Courts throughout the country have uniformly followed the traditional "but for" test in determining whether the defendant's conduct was a cause-in-fact of a prohibited consequence in result-type offenses such as vehicular homicide. Under this test, a defendant's conduct is a cause-in-fact of the prohibited result if the said result would not have occurred "but for" the defendant's conduct; stated differently, the defendant's conduct is a cause-in-fact of a particular result if the result would not have happened in the absence of the defendant's conduct. Thus, a defendant's reckless operation of a motor vehicle is a cause-in-fact of the death of a human being under Florida's vehicular homicide statute [§ 782.071(1), Fla.Stat. (1987) ] if the...