Williard v. State, 83-2323
| Decision Date | 16 January 1985 |
| Docket Number | No. 83-2323,83-2323 |
| Citation | 10 Fla. L. Weekly 213,462 So.2d 102 |
| Parties | 10 Fla. L. Weekly 213 Donald WILLIARD, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James Marion Moorman, Public Defender, and L.S. Alperstein Asst. Public Defender, Bartow, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Francis Migliore, Jr., Asst. Atty. Gen., Tampa, for appellee.
Donald Williard appeals a conviction and sentence for DWI-manslaughter. We affirm.
Williard contends initially that the trial court erred by denying his motion for a mistrial after the prosecutor asked the jury during closing argument to return a guilty verdict in order to send a message to the community that Williard's alleged criminal conduct was unacceptable. That closing argument included the following:
Inflammatory comments of a prosecutor mandate a reversal of a defendant's conviction unless the appellate court can determine from the record that the improper remarks did not prejudice the defendant. See Rahmings v. State, 425 So.2d 1217 (Fla. 2d DCA 1983).
The evidence produced at the trial revealed the following uncontradicted facts: Williard was driving a vehicle which crossed the center line of a highway, striking and killing the victim, who was riding a motorcycle. A toxicologist analyzed a sample of blood taken from Williard shortly after the accident and determined that his blood alcohol level was .178 percent. (Section 322.262(2)(c), Florida Statutes (1981), provides that if an individual has .10 percent by weight of alcohol in his blood, it shall be prima facie evidence that he was under the influence of alcoholic beverages to the extent that his normal faculties were impaired.) Based upon a hypothetical, the medical examiner stated that a person in Williard's position would have had a blood alcohol content of between .152 and .196 percent at the time of the accident. A volunteer with a local fire department and two state troopers, all of whom arrived at the scene shortly after the accident, said that they thought Williard was drunk because he smelled of alcohol, had a flushed face, and had bloodshot eyes. After being read his rights, Williard admitted to one of the troopers that he had drunk eight to ten 10-ounce cups of beer at a picnic.
Although a friend of Williard testified at the trial that he did not feel that Williard was intoxicated at the picnic, and while the fire department volunteer and one of the troopers admitted that Williard's speech was not slurred, and although this trooper thought that Williard's balance appeared fine, the toxicologist explained that a person who records a blood alcohol content of .178 percent can "mask" outward signs of intoxication.
Thus, even though the prosecutor's comments to the jury were improper, we are satisfied beyond a reasonable doubt that the evidence adduced against Williard was so overwhelming that the statements of the prosecutor were harmless error. See Carr v. State, 430 So.2d 978 (Fla. 3d DCA 1983). See also Broomfield v....
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