Werhan v. State

• Decision Date: 20 May 1996
• Docket Number: No. 95-1826,95-1826
• Citation: 673 So.2d 550
• Parties: 21 Fla. L. Weekly D1220 Dale Ray WERHAN, Jr., Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 550

673 So.2d 550

21 Fla. L. Weekly D1220

Dale Ray WERHAN, Jr., Appellant, v. STATE of Florida, Appellee.

No. 95-1826.

District Court of Appeal of Florida,

First District.

May 20, 1996.

F.T. Ratchford, Jr., of Merritt and Ratchford, Pensacola, for Appellant.

Robert A. Butterworth, Attorney General; Jean-Jacques A. Darius, Assistant Attorney General, Tallahassee, for Appellee.

PER CURIAM.

Dale Ray Werhan, Jr. appeals judgment and sentence for manslaughter by culpable negligence and vehicular homicide. On appeal, Mr. Werhan argues that the evidence presented at trial was insufficient to support a conviction for either of those offenses and that the trial court erred in denying his motion for judgment of acquittal. We affirm the conviction and sentence for manslaughter by culpable negligence but vacate the conviction of vehicular homicide, the lesser of the two offenses. We also sua sponte reverse Mr. Werhan's conviction for DUI as a lesser included offense of DUI causing property damage.

At approximately 2:00 a.m. on September 2, 1994, Mr. Alfieri Aicardi was driving a tractor trailer eastbound along Interstate 10 near the Florida-Alabama state line. Just past exit 1, Mr. Aicardi came upon a pickup truck, the driver of which was Mr. Werhan, completely stopped in the right-hand traffic lane of the interstate. Several feet of the width of Mr. Werhan's pickup were sitting in the twelve-foot traffic lane. The pickup had no lights on and the road was completely dark. Mr. Aicardi attempted to swerve out of the way but he had not seen the pickup in time to successfully maneuver his tractor trailer around it. The tractor trailer hit the rear driver's side portion of the pickup, started to fish-tail, flipped over onto its side and crashed cab first into the south side guardrail. Mr. Aicardi was ejected through the front windshield and was dead before passing motorists were able to reach him.

On October 17, 1994, Mr. Werhan was served with an arrest warrant and on November 4, at arraignment, Mr. Werhan was charged, by information, with DUI manslaughter, manslaughter, vehicular homicide, and DUI causing property damage. On March 15, 1995, an amended information was filed, adding the charge of attempting to leave the scene of an accident involving a death.

On March 29-31, 1995, a jury trial was held. Witnesses who were listening to CB radio on the night of the incident testified that over a period of ten to fifteen minutes they heard fifteen to twenty reports of a pickup truck on the eastbound side of I-10 around exit one stopped in the right-hand lane with no lights. Witnesses who were at the scene testified that they thought Mr. Werhan was under the influence of alcohol. Florida Highway Patrol Trooper Raymond Thall testified that he was dispatched to the scene shortly after the accident occurred and that he believed Mr. Werhan to be under the influence of alcohol. Trooper Thall observed that Mr. Werhan's breath smelled of alcohol, his eyes were bloodshot, his speech was slurred and he had a "laid back and nonchalant, groggy-acting" attitude. At Trooper Thall's request, an emergency medical technician who was dispatched to the scene, drew blood from Mr. Werhan at 3:25 a.m. When later tested with a gas chromatograph, the blood sample contained an ethyl alcohol level of .12 percent.

Florida Highway Patrol Traffic Homicide Investigator Marque Hendrix testified that his investigation revealed that "the extreme left rear corner of Werhan's vehicle was at least five feet into that [twelve-foot] traffic lane when it got struck." Expert witness James Anderson's reconstruction of the accident placed the pickup about in the center of the twelve-foot traffic lane; "with the left rear corner approximately seven to eight feet from the right-hand edge of the road." Defense counsel moved for a judgment of acquittal at the close of the state's case which the trial court denied.

Mr. Werhan testified on his own behalf that on September 1, 1994, at approximately 6:30 p.m., he met some friends at Sidelines, a sports bar on Pensacola beach. He ate and drank two beers at the bar. Around 8:30 p.m. he left the bar, purchased three beers at a gas station and began to drive to Gulf Shores, AL. Mr. Werhan drank one beer on his way to Gulf Shores. Upon arriving in Gulf Shores he stopped at the FloraBama lounge for approximately an hour, had two beers, and left around 10:30 p.m. After leaving the lounge, Mr. Werhan drank the second of the three beers he had purchased at the gas station in Pensacola while driving to Nolan's, a restaurant/nightclub in Gulf Shores. Mr. Werhan consumed three beers at Nolan's and left for home around 12:45-12:50 a.m.

Mr. Werhan further testified that he drank the last beer he had in his truck (his tenth for the evening by Mr. Werhan's own count) as he turned onto Interstate 10 off of Highway 59. "[M]y throat was still kind of dry and I just wanted something wet in my mouth, that's all." Mr. Werhan was proceeding along I-10 when he realized he had missed his exit. Instead of simply proceeding to the next exit and turning around he "press[ed] [his] brakes as rapidly as [he] could." Even though he was already past the exit ramp, his thought was he would stop and back up. Then the truck stalled. Mr. Werhan did not immediately coast into the emergency lane and attempt to restart the engine out of the way of traffic. Rather, he continued to coast slower and slower in the roadway, hoping to successfully "pop the clutch" and didn't attempt to pull off of the roadway until he was going so slow that the pickup did not even have enough momentum to gradually coast into the eight-foot emergency lane.

Mr. Werhan realized he was in a dangerous position: "I knew I was in the road and it was a possibility of me getting hit." He did not get out and attempt to push his pickup truck into the emergency lane because he thought he might have "got hit trying that." Nevertheless, when he couldn't get the pickup to start he "turned everything off." "I turned the radio off, I turned the lights off, I turned everything off I could think of thinking maybe there was an electrical problem and maybe it drained my battery or--I didn't know what to think, I just couldn't get it cranked." Mr. Werhan then sat there, on a dark highway, with his lights off trying to restart his vehicle. The dangerous situation he had created should have become even more apparent when ten to fifteen vehicles that were forced to change lanes passed him, some sounding their horns. Mr. Werhan's thoughts, however, were not on doing what he could to mitigate that dangerous situation he had caused. Rather, he couldn't understand why any of these people whose lives he had just endangered didn't stop to help him. "Some of them would beep their horns at me and they'd (indicating) when they went by. I mean, nobody stopped or anything, they just all zipped right by me." Mr. Werhan couldn't recall if he ever even put on his emergency flashers.

Mr. Werhan saw Mr. Aicardi's truck in his rearview mirror and he saw that Mr. Aicardi "was past that exit point and he wasn't turning like the other vehicles. He was still coming. Just kept on coming." Instead of pulling his lights back on to give Mr. Aicardi some forewarning of the danger that lay right in front of him, Mr. Werhan waited until right before impact and then laid down across the pickup's bench seat. At the close of its case, defense counsel renewed its motion for judgment of acquittal which the trial court denied. The jury found Mr. Werhan guilty of DUI, manslaughter, vehicular homicide and DUI causing property damage.

For purposes of a judgment of acquittal, we must view the evidence and all reasonable inferences in the light most favorable to the state, the non-moving party. Behn v. State, 621 So.2d 534, 535 (Fla. 1st DCA 1993). Section 782.07, Florida Statutes provides:

Manslaughter.--The killing of a human being by the act, procurement, or culpable negligence of another, without lawful justification according to the provisions of chapter 776 and in cases in which such killing shall not be excusable homicide or murder, according to the provisions of this chapter, shall be deemed manslaughter and shall constitute a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

Culpable negligence is:

consciously follow[ing] a course of conduct showing a reckless disregard of human life, or of the safety of persons exposed to its dangerous effects, or such an entire want of care as to raise a presumption of a conscious indifference to consequences, or which shows wantonness or recklessness, or a grossly careless disregard of the safety and welfare of the public, or such an indifference to the rights of others as is equivalent to an intentional violation of such rights.

Ellison v. State, 547 So.2d 1003, 1006 (Fla. 1st DCA 1989), quashed in part on other grounds, 561 So.2d 576 (Fla.1990).

In the present case, Mr. Werhan consciously made several decisions throughout the course of the evening, the cumulative effect of which warranted the jury's finding of manslaughter by culpable negligence. Mr. Werhan chose to drink at least ten beers over the course of an evening, three, according to his own admission, while he was driving in his pickup truck. A blood sample, taken from Mr. Werhan approximately an hour and fifteen minutes after the accident, revealed a blood-alcohol level in excess of the legal limit. See § 316.193, Fla.Stat. (1993). The jury was free to conclude that Mr. Werhan's alcohol consumption impaired his judgment and was the catalyst for the subsequent ill-advised decisions that he made.

Although Mr. Werhan's parked vehicle was the means by which Mr. Aicardi was killed, this case is different than a traffic accident resulting in a death that warrants a conviction for vehicular homicide. Mr. Werhan drank to the point that he was legally under the influence of...