W.E.B. v. State, 89-1041

• Decision Date: 04 December 1989
• Docket Number: No. 89-1041,89-1041
• Parties: 14 Fla. L. Weekly 2778 In the Interest of W.E.B., III, a child, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 323

553 So.2d 323

14 Fla. L. Weekly 2778

In the Interest of W.E.B., III, a child, Appellant, v. STATE of Florida, Appellee.

No. 89-1041.

District Court of Appeal of Florida,

First District.

Dec. 4, 1989.

William H. Davis, of Wadsworth & Davis, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen. and Bradley R. Bischoff, Asst. Atty. Gen., Tallahassee, for appellee.

WIGGINTON, Judge.

We are asked to review the trial court's "Order of Adjudication-Disposition" finding that appellant (a minor) was not guilty of the charge of DUI manslaughter but nonetheless did commit the felony offense of vehicular homicide in violation of Section 782.071, Florida Statutes (1987). Concluding that no action other than supervision in appellant's home was required, the court withheld adjudication of delinquency and placed him on a community control program subject to enumerated special conditions. Because we hold that the state failed to prove beyond a reasonable doubt that appellant committed the offense of vehicular homicide, we reverse.

The issue to be decided is whether appellant's conduct was at most merely negligent and not so reckless as to amount to vehicular homicide. "Vehicular homicide" is defined in section 782.071 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. Vehicular homicide is a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

In McCreary v. State, 371 So.2d 1024 (Fla.1979), the supreme court held that the legislature created the offense of vehicular homicide "to cover the hiatus between section 782.071 [sic] manslaughter and the traffic offense of reckless driving...." Id. at 1027. Thus, the legislature made punishable as a third-degree felony "reckless driving which results in the killing of a human being where the degree of negligence falls short of culpable negligence but where the degree of negligence is more than a mere failure to use ordinary care." [Footnote omitted.] Id. at 1026.

An examination of the evidence considered by the trial court sitting without a jury discloses that on the night in question appellant, who had just turned age 16 and received his driver's license, set out after dinner with friend Tad Lindsay in his father's new Blazer to visit friends staying at the beach. While en route, the boys purchased two six packs of "lite" beer. Appellant drank three to five of these beers over the course of the evening. A little after 10:00 p.m., the boys started for home traveling on the Old Gulf Beach Highway, a road with which appellant was unfamiliar.

It was a clear June night and there was no evidence of other traffic on the quiet rural stretch of the two-lane highway. Appellant passed a lounge at about 10:30 p.m. They were on a straightaway but a curve lay ahead to the east. Testimony of two witnesses leaving the lounge at the time appellant passed was conflicting as to appellant's operation of the vehicle. One witness stated that when the Blazer approached from the west, it was coming at a rate of speed greater than the posted speed limit of 45 miles per hour and that it was "fishtailing." ¹ To the contrary, the other witness testified that the Blazer was not swerving at all and was in its proper lane, but, as it entered the curve, it went off the edge of the pavement. Tad Lindsay estimated their speed just prior to entering the curve as "around 50 to 55," and that he had no sense whatsoever that their speed was dangerous or excessive. He testified that only the right hand wheel eased off the shoulder but that appellant returned the Blazer back onto the pavement as they moved into the curve.

However, coming from the opposite direction and out of a long straightaway was the victim, James O. Houghton, driving with a blood alcohol level later determined by the medical examiner to have been .19 percent at the time of the wreck, or nearly twice the level at which his faculties presumably would have been impaired. See Section 316.1934(2)(c), Florida Statutes (1987). Just seconds after the Blazer was fully back onto the pavement and further into the curve, the two cars collided. Trooper Thomas Verge, the traffic homicide investigator, testified that in his opinion both had been traveling at the speed limit of 45 miles per hour, "plus or minus a little bit."

The wrecked vehicles came to rest partially on the shoulder of what had been the victim's side of the road. Tad suffered only a minor wrist fracture, but appellant received a closed head injury as a consequence of which he suffered amnesia and was unable to testify at the trial. James Houghton met his death.

Although the trial court found that the point of impact was in Houghton's lane, it was Tad's testimony, as a state witness, that the Houghton vehicle just seconds before the accident had crossed the center line and appeared to be about a foot or two in appellant's lane. Trooper Verge equivocated on the point of impact, stating that "the approximate point of impact or the first indication that a collision had occurred was a gouge mark in the west bound lane...." He also testified that he was not an accident reconstruction expert.

The trial court's findings and rationale were set forth in open court and again in the final "Order of Adjudication-Disposition." The court found that although Tad Lindsay was not misrepresenting the facts when he testified that it was the Houghton vehicle that crossed the center line, it rejected that eyewitness testimony for the reasons that the point of impact indicated appellant's vehicle had moved over to the victim's lane and that the accident happened so very fast when Tad's eyes had been looking off to the right side of the road and did not return to observe the center line until almost at the moment of impact.

Having thus dealt with the matter of causation, the trial court went on to find that appellant operated the vehicle in a reckless manner likely to cause the death of, or great bodily harm to, another person as he entered the curve. The first reason for so finding was that appellant had consumed beer before the accident which the court found to be "an indication" raising a suspicion that his judgment was to some extent "affected." ² The second reason given by the court was that appellant, as he entered the curve, was exceeding the speed limit although "by how much, I don't know." The court also found that appellant apparently went off the road to the right whereupon the Blazer, as a result of "perhaps overcorrecting," moved over into the victim's lane. The court admonished appellant that he needs

... to be aware that sometimes you face hazardous conditions when you drive on unfamiliar roads; and therefore, you should be more careful....

[Y]ou should have been more careful when you were driving because you had not yet faced all the tough problems that those of us who have driven longer know how to respond to almost intuitively. You have not yet developed that intuition of driving.

We hold that the above set forth facts, though sufficient perhaps for a finding of simple negligence, do not amount to the operation of a motor vehicle in a reckless manner likely to cause the death of, or great bodily harm to, another. In doing so, we are mindful of the trial court's prerogative as the fact-finder in this case, as well as the concomitant problem of analyzing any set of facts in light of the statutory language in order to arrive at a conclusion of vehicular homicide. For guidance, we know only from McCreary that the word "reckless" used in the vehicular homicide statute does not mean "culpable" as that term is used in the manslaughter statute and that the standard of proof for vehicular homicide is less than that for manslaughter. It then remains for the courts to attempt the seemingly arbitrary task of fitting the circumstances before them into that statutory framework. The difficulty, of course, lies in the meaning of "reckless."

It has been held for purposes of jury instructions that the focus of the statute is not on the recklessness of the driving. Therefore, the jury need not be instructed that the reckless driving must also have been willful and wanton, since "[t]he adjectives 'reckless' or 'willful and wanton' by themselves are not significant because they are often used interchangeably." [Footnote omitted.] Rushton v. State, 395 So.2d 610, 612 (Fla. 5th DCA 1981). Rather, "[t]heir significance is found in the phrases which they modify and in the acts which they proscribe." Id. (emphasis in original.) ³ Hence, according to Rushton, the conduct proscribed by the vehicular homicide statute is the operation of a motor vehicle in a reckless manner "likely to cause the death of, or great bodily harm to another." Id. (emphasis in original). "Thus, to convict, the jury must find that the operation of the vehicle in question is such as is likely to cause the specific harm, i.e., death of or great bodily harm to another." Id. Similarly, this court has found for purposes of jury instructions "no significant differences in meaning between driving a vehicle in willful or wanton disregard for the safety of other persons" and driving it "in a reckless manner likely to cause the death of or great bodily harm to another person," Jackson v. State, 456 So.2d 916 (Fla. 1st DCA 1984).

However, it is also true that "vehicular...