IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
MARK SNYDER,
Appellant,
CASE NO. 98-0490
vs.
STATE OF FLORIDA,
Appellee.
INITIAL BRIEF OF APPELLANT
On appeal from the Circuit Court of the Fifteenth
Judicial Circuit In and For Palm Beach County, Florida
[Criminal Division]
RICHARD L. JORANDBY
Public Defender
15th Judicial Circuit
MARCY K. ALLEN
Assistant Public Defender
Attorney for Mark Snyder
Criminal Justice Building
421 Third Street, 6th Floor
West Palm Beach, Florida 33401
(407) 355-7600
Florida Bar No. 332161
I
Mark Snvder v. State of Florida,
Case No. 98-0490
CERTIFICATE OF INTERESTED PERSONS
Counsel for defendadappellant certifies that the following persons and entities have or may
have an interest in the outcome of this case:
1.
Mitchell J. Beers, Esq.
(Trial Counsel for Defendant)
2.
Honorable Robert Butterworth
Attorney General for the State of Florida
By Assistant Attorney General Georgina Jimenez-Orosa
(Counsel for Appellee)
3.
Honorable Richard L. Jorandby
Public Defender, 15th Judicial Circuit
By Assistant Public Defender Marcy K. Allen
(Counsel for Appellant)
4.
Honorable Barry Krischer
State Attorney, 15th Judicial Circuit
By Assistant State Attorney Ellen Roberts
(Trial Counsel for Plaintiff)
5.
Honorable John L. Phillips
15th Judicial Circuit
(Trial Judge)
6.
Mark Snyder
(DefendantIAppellant)
L
TABLE 0F CONTENTS
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CERTIFICATE OF INTERESTED PERSONS ......................................
TABLE OF CONTENTS..
.....................................................
TABLE OF AUTHORITIES ....................................................
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11
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1
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1
PRELIMINARY STATEMENT
STATEMENT OF THE CASE
i
STATEMENT OF THE FACTS
.................................................
.4
SUMMARYOFARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 1
ARGUMENT
POINT I
APPELLANT’S CONVICTIONS FOR MANSLAUGHTER BY
CULPABLE NEGLIGENCE AND CULPABLE NEGLIGENCE
MUST BE SET ASIDE WHERE THE CIRCUMSTANTIAL
EVIDENCE DOES NOT ESTABLISH CULPABLENEGLIGENCE
AND DOES NOT REBUT THE REASONABLE HYPOTHESIS OF
INNOCENCE THAT APPELLANT HAD AN EPILEPTIC SEIZURE WHICH RESULTED IN THE TRAFFIC ACCIDENT. ............ .23
REVERSIBLE ERROR OCCURRED WHERE RELEVANT
DEFENSE EVIDENCE WAS WRONGFULLY EXCLUDED. . . . . . . . . . . . . . 3 5
POINT I11
HARMFUL ERROR OCCURRED WHERE THE COURT DID
NOT MAKE ADEQUATE INQUIRY NOR PROVIDE A PROPER
REMEDY FOR THE STATE’S UNTIMELY DISCLOSURE OF
EVIDENCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 9
POINT IV
THE TRIAL COURT ERRED BY UNREASONABLY LIMITING
DEFENSE COUNSEL’S INQUIRY OF THE VENIRE REGARDING EXCUSABLE HOMICIDE. ...................................
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11
-
.44
' I
THE TRIAL COURT ERRED BY DENYING APPELLANT'S
MOTION FOR MISTRIAL WHERE THE LEAD INVESTIGATOR
MADE A COMMENT ON SILENCE D U " G HIS TESTIMONY.
...............................................................46
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
CERTIFICATE OF SERVICE
.................................................. 4 9
TABLE 0F AUTHORITIES
PaPe
Cases
Behn v. State, 621 So. 2d 534
(Fla. 1st DCA 1993) ....................................................
.29
Brown v. State, 640 So. 2d 106
(Fla.4thDCA1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 1
Campbe11 v. State, 306 So. 2d 482
(Fla.1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 4
Cannon v. State,91 Fla. 214,107 So. 360
(Fla. 1926) ........................................................
.26,33
Chambers v. Mississipi, 410 U.S. 284,35 L. Ed. 26 297,
93 S. Ct. 1038 (1973). ..................................................
.36
Connors v. Umted States, 158 U.S. 408,15 S. Ct. 951,
39L.Ed.2d1033(1895) .................................................
45
Davis v. State, 90 So. 2d 629
(Fla.1956) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 6 , 3 3
Filmon v. State, 336 So. 2d 590
(Fla. 1976) ...........................................................
Goodwin v. State, 23 Fla. L. Weekly D 918
(Fla. 4th DCA April 8,1998) ..........................................
.25
.38,47
Hedges v. State, 172 So. 2d 824
(Fla.1965) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 4
443 U.S. 307,99 S. Ct. 2781,
61L.Ed.2d560(1979) ..................................................
Jones v. State, 378 So. 2d 797 (Fla. 1st DCA 1979),
cert. denied, 388 So. 2d 1114 (Fla. 1980) ...................................
35
.45
Lavado v. State, 469 So. 2d 917 (Fla. 3d DCA 1985),
reversed, 492 So. 2d 1322 (Fla. 1986) ...................................
.45,46
Logan v. State, 592 So. 2d 295
(Fla. 5th DCA 1991) ................................................
.24,26
- iv -
Low v. State, 689 So. 2d 1055
(Fla.1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 7 , 3 3
Mavo v. State, 71 So. 2d 899
(Fla.1954) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 6
McArthur v. State, 351 So. 2d 972
(Fla. 1977) ...........................................................
.26
McCrearv v. State, 371 So. 2d 1024
(Fla.1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 4
Mobley v. State, 705 So. 2d 609
(Fla. 4th DCA 1997) ................................................
.42,43
Moses v. State, 535 So. 2d 350
(Fla. 4th DCA 1988) ................................................
.45,46
Munizin v. State, 689 So. 2d 1026
(Fla.1995) ..............................................................
Pait v. State, 112 So. 2d 380
(Fla.1959) .........................................................45,46
Peel v. State, 291 So. 2d 226
(Fla. 1974) ...........................................................
.25
PoDe v. State,84 Fla. 428,94 So. 865
(Fla. 1922) ...........................................................
.45
Preston v. State, 56 So. 2d 543
(Fla. 1952) ........................................................
.24,25
Rivera v. State, 561 So. 2d 536
(Fla.1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 7
Rojas v. State, 552 So. 2d 914
(Fla. 1989) ............................................................
.24
Rosales-LoDez v. United States, 451 US. 182, 101 S. Ct. 1629,
68L.Ed.2d22(1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 5
Russ v. State, 140 Fla. 2 17,
191 So.2d 296 (1939). ..................................................
- v-
.25
i
Savage v. State, 152 Fla. 367, 11 So.2d 778
(Fla. 1926) ...........................................................
.24
Smith v. State, 500 So. 2d 125
(Fla.1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 1
Smith v. State, 681 So. 2d 894
(Fla.4thDCA1996) ....................................................
47
State v. DiGuiliQ, 49 1 So. 2d 1131
(Fla. 1986) ...........................................................
.46
State v. Elkin, 595 So. 2d 119 (Fla 3d DCA 1992),
rev. den. Elkin v. State, 602 So. 2d 947 (Fla. 1992)
.34
...........................
Sate v. Law, 559 So. 2d 187
(Fla.1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 7 , 3 3
State v. Nordstrom, 6 13 So. 2d 437
(Fla.1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 7
State v. Schopp, 653 So. 2d 1016
(Fla.1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 1 , 4 3
State v. Ward, 374 So. 2d 1128
(Fla. 1st DCA 1979) ....................................................
.33
Tarrant v. State, 668 So.2d 223
(Fla.4thDCA1996) ....................................................
42
T e n d o v. State, 232 So. 2d 232
(Fla. 4th DCA 1970) ...................................................
.26
Thompson v. State, 565 So. 2d 1311
(Fla.1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 2
Vannier v. State, 714 So. 2d 470
(Fla. 4th DCA 1998) ..................................................
36-38
West v. State, 553 So. 2d 254
(Fla.4thDCA1990) ....................................................
47
Williams v. Frohock, 114 So. 2d 221
(Fla.3dDCA1959) .....................................................
29
- vi -
Williams v. State, 437 So. 2d 133
(Fla.1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 7
Zanicchi v. State, 679 So. 2d 40
(Fla4thDCA1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 6 , 3 8 , 3 9
Constitutional Provisions
Fifth Amendment, U. S. Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .46
Fourteenth Amendment, United States Constitution . . . . . . . . . . . . . . . . . . . . . .35,36,46
Florida Statutes
3 322.126 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 0
782.03 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 4
§ 782.07 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .24
OTHER AUTHORITIES
Fla. Std. Jury Instr. (Crim.) p. 1203 (1996)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .27
Epilepsy Foundation of America,
How to Recomize and Classifv Seizures (2d Ed 1992)
Krumholz, Allan, M.D.,
Drivine and Epilepu
.. ............. . ..... . . . .28
.... . .. ... ..... . .. .. ... .. . .. ... .. ....... .. ...... . . . .32
Porter, Roger J., M.D.,
Epilepsy 100 Elementary Principles (2d 1989)
- vii -
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .35
PRELIMINARY sTATEMENT
Appellant was the defendant in the trialcourt. He will be referred to as appellant in this brief.
The record on appeal, trial transcripts and supplemental record on appeal consist of 6 volumes. The
record on appeal is consecutively numbered. All references to the record will be by the symbol “R”
followed by the appropriate page number in parentheses. The trial transcripts are numbered
independently of the record on appeal. All references to the trial transcripts will be by the symbol
“T” followed by the appropriate page number in parentheses. The supplemental record is also
independently numbered. It will be identified by the symbol “SR” followed by the appropriate page
number in parentheses. Attached is an appendix. It will be referred to by the symbol “A” followed
by the appropriate page number in parentheses. All emphasis has been added by appellant unless
otherwise noted.
STATEMENT OF THE CASE
Appellant was charged by amended information filed in the Fifteenth Judicial Circuit with
manslaughter by culpable negligence (count I), 4 counts of culpable negligence (counts 11- V), and
vehicular homicide arising from an automobile accident which occurred on May 19, 1996 (R-3).
Two stipulated motions for continuance were granted. (R-33,34-36,38-40,41-42).A third
continuance was granted at the state’s request without defense objection although the defense was
ready for trial (R-43-46, T-4). On October 23,1997, both sides announced ready for trial (T-7-10).
The case was not reached. Trial was reset to November 24, 1997 (R-50).
On Friday, November 21, 1997, appellant filed a written motion for continuance. The
prosecution had provided late discovery and faxed an amended witness list to the defense.
Additional time was needed to investigate impeachment and rebuttal evidence (R-50-5 1).
Also on Friday, November 21, 1997, defense counsel filed a written motion for protective
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ordedmotion to strike witness (R-52). The untimely disclosure of evidence and naming of a new
witness formed the basis for the motion (R-52-53). The defense sought exclusion of this evidence
and testimony (R-53).
On Monday, November 24, 1997, the court noted that the case was set for trial and state
announced ready for trial (T-14,16). The defense requested a ruling on its two written motions (T16). Defense counsel apprised the court of the untimely disclosure of the May, 1996 driver’s license
application and late listing of the witness (T-17). Defense counsel explained the significance of
these items to the court (T-18). The court asked the state to respond then interrupted the prosecutor’s
explanation for failing to furnish the information earlier stating, “I take it that it was a good-faith late
(T-19). The state contended that the defense had prior knowledge of the existence of the
--”
application because it was completed by appellant. Further, the state intended to use it on rebuttal
and was not certain that it was required to disclose rebuttal evidence (T-20-21). The defense replied
by explaining the procedural prejudice suffered by appellant as a result of the prosecution’s tardy
action (R-21-22). The court summarily denied the motion to strike a witness and motion for
protective order (T-23). The court also denied the defense request for a continuance (R-23). The
court directed the prosecution to make the new witness available for deposition by defense counsel
(T-23).
On December 1 ,1997, jury selection commenced. Prior to voir dire, the court informed the
parties of its “rules” (SR-4-5). When defense counsel attempted to address the legal concept of
excusable homicide, the state’s objection was sustained and the court admonished defense counsel
that the query violated the court’s instructions (SR-136-137). Defense counsel next asked the panel
if they could follow an instruction on excusable homicide (SR-137). One venirewoman admitted
that she might have a problem (SR-137). Another juror shook his head then commented that he
- 2-
would have a hard time finding a person who had sped through a red light not guilty (SR-138).
When counsel attempted to probe the juror, the court interrupted and advised the juror that counsel
was not permitted to discuss the facts in detail with the potential jurors (SR-139). Later, the court
refused another venirewoman’s request for a definition of culpable negligence (SR-144).
During the prosecutor’s redirect examination of the lead investigator, defense counsel
objected to the testimony on the ground it was a comment on the right to remain silent (T-299-301).
The court overruled the objection but offered a curative instruction which defense counsel declined
(T-301).Defense counsel moved for a mistrial (T-302).The motion was denied (T-302).
At the close of the state’s case in chief, appellant moved for judgment of acquittal (T-334).
The motion was denied (T-334).
During the defense case, appellant sought to call Patricia Peushold as a witness (T-337).On
objection by the prosecutor, the court directed defense counsel to proffer her testimony (T-336-337).
After the proffer, the court sustained the state’s relevancy objection and excluded the witness’
testimony (R-337-341).When defense counsel sought to present Ms. Pueshold’s actual testimony
in lieu of counsel’s proffer, the court ruled that counsel’s representations provided a sufficient basis
for the court to reach a determination (T-345-346).
At the close of the evidence, defense counsel presented a written motion for judgment of
acquittal and memorandum of law (R-55-62,T-581). The court reserved ruling and recessed the
cause (T-584).The following day, the court denied the motion (T-590).
Count VI, vehicular homicide, was submitted to the jury as a lesser included offense of count
I, manslaughter by culpable negligence (R-81). The jury found appellant guilty of manslaughter by
culpable negligence as charged in count I and 4 counts of culpable negligence (R-81).
Appellant filed a written motion for new trial (R-84-85).The motion was denied (R-123).
- 3-
F
Appellant was adjudicated guilty accordingly (R-101-102). As to count I, the court sentenced
appellant to 15.6 years in prison which represented the minimum state prison months calculated on
the guideline scoresheet (l2-98-100).
I -
A timely notice of appeal was filed (R-104). This appeal follows.
STATEMENT 0F THE FACTS
On Sunday, May 19, 1996, a clear day, at approximately 528 p.m., a collision occurred at
the intersection of Congress Avenue and West Atlantic Avenue, in Delray Beach involving a Ford
Aerostar van and a Chevrolet Silverado pick-up truck (T-80-81,217-218). The van was driven by
Joseph A. Cassera and occupied by his wife, Regina Cassera, their 2 children and sister-in-law.
Regina Cassera died as a result of the collision and the other occupants of the van were injured (T63-65).
The sole occupant and driver of the pick-up truck was appellant. Appellant, too, was injured
as a result of the collision. The defense maintained that appellant had an epileptic seizure and did
not recall the accident. At the time of the accident, appellant had a valid Florida Driver's License
(T-283).
At trial, the state presented the testimony of 8 witnesses. The defense presented the
testimony of 4 witnesses. Appellant did not testifl. A non-cumulative recitation of the evidence
follows.
Mr. Cassera traveled south on Congress Avenue to the intersection of West Atlantic Avenue
where he proceeded to turn east (le@ on West Atlantic in accordance with the green turn arrow (T60-62). Another vehicle had just made the same left turn (T-62). Mr. Cassera noticed a truck on his
left side (T-62). The driver had his hands on the wheel and appeared to be sitting straight up (T-62).
Mr. Cassera had no recollection of the actual collision (T-63).
- 4-
Frank Passero traveled west on West Atlantic Avenue toward Congress Avenue. When he
was near the railroad tracks, an estimated 500 to 600 feet from the intersection, he noticed the truck
driving in an emtic manner (T-69,81-82,96). The truck was traveling too fast and “going from side
to side” (T-70,85). Mr. Passero changed lanes to avoid it (T-74-75,96).
Mr. Passero stopped at the red light at the intersection (T-96). Other vehicles were also
stopped for the light (T-77). After approximately 2 to 6 seconds, the pick-up truck passed Passero
and entered the intersection at an estimated speed of 60 m.p.h. (T-75-76,85). The pickup truck was
in the left turn lane, the only open lane (T-77-78,88).
Mr. Passero did not see the driver of the truck (T-79). Looking in his rear view mirror, Mr.
Passero did not see the pick-up truck driver with his hands on the wheel (T-92). Mr. Passero did not
see the truck’s brake lights alight, hear the squeal of brakes or see the truck swerve prior to the
collision (T-77,94). After the crash, Mr. Passero called 91 1 immediately from his cellular phone (T78,93).
Daren Rice was also traveling west on West Atlantic Avenue (T-98-99). He was stopped for
3 to 15 seconds at the red light at the intersection in the second right lane (T- 100-101, 109). Rice
noticed the pick-up truck in his rear view mirror (T-99-100). He did not see any other cars behind
him (T-110). The pickup truck was rapidly approaching in Rice’s lane. When the truck was
approximately 50 feet behind Rice, it swerved into the next lane which was the only open lane (T100-1O 1). The truck traveling at approximately 50 m.p.h., passed Rice, entered the intersection and
broadsided the van (T-100-102). The truck did not attempt to stop or take other evasive action
although the van was large and visible (T-102,114-117). The van flipped over and slid (T-104).
Rice left his vehicle and ran to the truck (T-104). Rice testified, “I opened his passenger’s
door, and he [appellant] was in a daze.” (T-105). Appellant stated, “my truck, my truck.” (T-105,
-
3-
108). Appellant was “slurched over” in the truck with his seat belt on (T-106,121). On direct
examination, Rice described appellant as “dazed but coherent.” (T-107). On cross-examination, Rice
agreed that appellant was confused (T- 117-118). Rice agreed that in his statement to police given
the day after the incident, he stated “he [appellant] grabbed his head and said, ‘Oh my God,’ and he
mumbled. You know he seemed real groggy. The accident made me-- you know, from when I first
walked around to the driver’s door and tried to open it, and he was slurched over, you know, and it
looked like he had been knocked unconscious or something.” (T-122). On redirect examination,
Rice testified that he could not tell if appellant was unconscious (T-124).
Delray Beach police officer Privitera, was next to have contact with appellant, arriving at the
~
scene within 2 to 3 minutes of the dispatch (T-186). According to Privitera, appellant was outside
of the open passenger door leaning against the truck (T-187). Appellant was shook up and
emotionally upset (T-188). His face was bleeding (T-188). He was trembling (T-192-193). His
hands were shaking (T-197). Appellant declined medical attention, did not mention having a seizure
and did not appear fatigued (T-188-189). During their brief 2 to 3 minute conversation, appellant
was coherent (T-289-190). Appellant asked what happened and what did he do (T-189). Privitera
sent the paramedics to appellant because there was blood on his face (T-195).
Delray Beach Fire Rescue responded to the scene at 532 p.m. (T-129). Paramedic Twigger
approached appellant who was seated in the passenger seat of the pickup truck (T-130-131).
Twigger described appellant as confhed (T-133). Confusion is associated with seizures (T-144).
Some blood was coming fiom appellant’s nose and mouth (T-13 1). Appellant did not have
any obvious head injury (T-132). A bruise ran from his left chest wall to his right hip which was
consistent with a seat belt (T-13 1). Appellant experienced difficulty breathing when laying flat on
the gurney (T-132).
Twigger asked appellant ifhad lost consciousness during the accident (T-135).
- 6-
Twigger noted appellant’s response as “unsure as to loss of consciousness.” (T-135-136). Appellant
did not indicate that he had had a seizure (T-137). Twigger was unable to determine if appellant had
suffered a seizure (T-138). He did not know if appellant bit his tongue (T-138). Twigger noted
appellant’s history of epilepsy and hypertension (T-140).
Twigger conducted a Glasgow Coma Scale Analysis of appellant (T-139). The scale is used
to judge a patient’s neurological status (T-139). The top score is 15 and the low score is 3 (T-140).
Appellant scored 13 because of his confusion (T-139).
Appellant arrived at the hospital at 557 p.m. (T-136). While appellant wore a neck collar
and was immobilized on a gurney near the nurse’s station in the emergency room receiving
intermittent medical attention, he spoke to Delray police officer Cummings (T-200,203-204).
Appellant appeared nervous and shaken up (T-202).
Appellant stated that he was going to Deerfield Beach to take his former girlfiiend to the
movies (T-201). He chose not to take 95 because he was taking a leisurely drive (T-201). Appellant
did not explain the crash (T-201). Appellant asked about his truck several times (T-200). He also
asked who was at fault and whether anyone was hurt (T-205).
Appellant agreed to have his blood drawn (T-2 10-211). Cummings took appellant’s driver’s
license (T-202). Eventually, appellant was taken to the intensive care unit (T-209).
Delray Beach traffic homicide investigator and accident reconstructionist Richard Jacobson
arrived at the intersection at approximately 6:OO p.m. (T-214-217). Both Congress and West Atlantic
Avenues are divided roadways (T-232). The railroad tracks are approximately 900 feet from the
intersection (T-234). Jacobson determined that the light sequence was operating properly (T-233234). Photographs were taken that evening as well as three months later (T-2 19-231). Based upon
the physical evidence, Jacobson determined the point of impact and concluded that the van was hit
- 7-
with strong force on the side, moved sideways for several feet then rolled over (T-228-229). The
pickup truck had extreme front end damage (T-236).
Based upon formulas, Jacobson calculated that appellant’s speed at the time of impact was
66 m.p.h. or 96.75 feet per second (T-275-276). The speed limit was 35 m.p.h. (T-276). Based upon
the light having been red for 5 seconds prior to impact, Jacobson calculated that appellant was 483
feet away from the point of impact when the light turned red (T-277). The van traveled 24 m.p.h.
(T-286).
Jacobson met with appellant at the hospital on the morning after the collision (T-279).
Appellant was in the Trauma Intensive Care Unit (T-288). Jacobson did not know what medicines
had been administered to appellant (T-289).
Jacobson testified that appellant asked, “How’s my truck?’ (T-279). Appellant stated that
he did not know the circumstances of the accident (T-288). He had heard that some people including
himself were very badly injured (T-288).
On June 18,1996, Jacobson arrested appellant for manslaughter by culpable negligence (T280). At the Delray Beach police station, appellant experienced chest pains and was taken to Delray
Community Center Hospital (T-28 1-283). Jacobson testified that appellant told the doctor that he
had not had a seizure in over a year (T-283).
Jacobson obtained appellant’s driver’s license applicationsfrom the Department of Highway
and Motor Safety and Motor Vehicles (DHMSMV)in Tallahassee, State Exhibit 13 and 14 (T-283285, A-46,47). Additionally, Jacobson obtained a blank copy of the form from a local driver’s
license bureau, State Exhibit 15 (T-285, A-48).
Steven Rudolph has been an examiner at the Deerfield Beach Ofice of the Division of
Driver’s License for four years (T-304-305). There are six examiners working in that branch each
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day (T-3 14). His duties are to test and “basically to help the people get through the procedure as
quickly as possible.” (T-305). He has received specific training (T-305). Each examiner processes
approximately 75 applications per day (T-314). Some days, more than 100 examinations are
administered by an examiner (T-3 15). Each applicant is asked 4 questions which means that on an
average day an examiner asks between 300 and 400 questions (T-3 15-316).
Rudolph explained the process to obtain a duplicate license where an original license has
been lost (T-306,317). The examiner refers to a computer screen and enters the information
provided onto the screen (T-321-322). The applicant is asked to produce identification (T-317). He
is asked for his address (T-306,3 17). He is asked if he would like to be an organ donor (T-322).
Next, the examiner asks the applicant if he has ever been adjudged to be afflicted with any mental
illness, disorder or disease of any kind (T-323). The examiner then asks if the applicant has had
epilepsy, fainting or dizzy spells (T-323). The form, however, reads, “Have you suffered from
epilepsy, fainting or dizzy spells within the past two years?” (T-324).
The examiner also asks, “Have you or are you now addicted to any drugs or alcohol
intoxicants?” (T-323). Last, “Are you insulin dependent?” (T-323). The driver is then sent to the
cashier (T-306). Once payment is made, the driver will sign the form and take their paper. The
driver is given the license when it is done (T-306).
Mr. Rudolf explained that State’s Exhibit 15 represents Driver’s License Form 34 (T- 307).
V 9 6 ” appears in the corner of state exhibit 15 which signifies that a part of the form was revised
at that time (T-311). Form 34 has been phased out (T-307).
State Exhibit 13 relates to Mark Steven Snyder and was issued on December 8,1992 (T-308).
Mr. Snyder’s address, date of birth, height, driver’s license number and class appear on the form (T309). State Exhibit 14 also relates to Mr. Snyder and was issued on May 31, 1996, which was prior
- 9-
1
to his June 18, 1996 arrest (T-280). It is a duplicate driver’s license form (T-310). When an
individual applies for a duplicate license, it is procedure to ask about epilepsy, fainting or dizzy
spells (T-310,313). Sheldon Goldstein, a supervisor, was the examiner (T-3 12,330). Before the
applicant signs the form, he is asked if he swears or affirms that all the information given is true and
correct (T-3 14). According to the form, appellant answered no to this question (T-3 11).
On cross-examination, Mr. Rudolf testified that the computers were changed many times
eom 1992 to 1996 (T-325-326). In addition, the type has changed (T-326, A-46,47). A comparison
of State Exhibit 13 and 14, however, revealed that the type was the same on both documents (T-326).
Mr. Rudolf agreed that it was possible that when appellant went to the Hillsborough DHSMV, the
examiner pulled up his computer record and had him sign for a duplicate license (T-326).
The state rested.
Appellant’s medical records fiom Delray Beach Community Hospital were admitted into
’
evidence as Defense Exhibit 1 upon stipulation of the parties (T-394, R-63-64, A-1-1 1). Paramedic
Twigger’s incident report, included in the exhibit, reads in pertinent part:
Pt. found in passenger seat confused. Pt. states he was driver of
pickup. Unk if seat belt was worn. Pt. doesn’t remember accident.
i
(A- 1) Included in the Multi Disciplinary Patient Care Notes is the following:
0505 Pt. Having seizure; head extended and eyes rolled back, arm
tensing, Pt. Biting his tongue, lips ...
0506 seizure over in one minute. Pt. Opens eyes immediately, does
not talk.
‘Simultaneously with the filing of this initial brief, appellant is moving to supplement the
record on appeal with defense exhibit 1. It consists of many documents which are not paginated. As
a matter of convenience, appellant has attached a portion of the exhibit to this initial brief and has
numbered the pages.
- 10-
0530 PE: Pt confused, follows simple commands...
0704 Pt. Having seizure; eyes open rolled back ...arms
jerking...seizure over in one minute...
(A-4).
The consultation note of Dr. Bruce Barton, M.D. dictated May 20,1996, includes the
following patient history:
A 53 year old right handed white male with a past medical history of
hypertension and epilepsy on Dilantin who was involved in a motor
vehicle accident on May 19, 1996, in which he was found by fire
rescue in the passenger seat confused but stating that he was the
driver of the pickup ... His Dilantin level on arrival was 26. He was
admitted to the Trauma Service, and since admission, has had two
generalized tonic-clonic seizures, the first treated with 200 mg
Dilantin, the second treated with Ativan.
(A-5). The consultation note contains the following discussion:
A 53 year old gentleman who has an apparent previous history of
seizures treated with Dilantin. It is unclear as to any seizure activity
prior to arrival to the hospital; however, since then, he has had two
generalized tonic-clonic seizures. It is significant to note that his
Dilanth level was initially 26, and then this morning, confirmed to be
19....
(A-6).
Defense witness Rosalie Fenali knew appellant for 5% to 6 years. Appellant is an artist and
fiuniture refinisher (T-359). Ms. Fenali and appellant lived together for 3% years ,separated and
were again living together at the time of trial (T-357-358). Appellant was under a doctor’s care and
took Dilantin for epilepsy (T-359). Dr. Silverstein, appellant’s former physician, had discontinued
appellant’s Dilantin prescription because his level was too high (T-361). During the second week
after he stopped taking his medication, Appellant experienced a seizure in Ms. Fenali’s presence (T360). Prior to that time, Ms. Fenali had not seen appellant have a seizure (T-372-373).
When the seizure began, appellant started to “willow down” on the bathroom floor (T-361-
-
11 -
..
362). Appellant lost consciousness (T-362). He was unable to talk (T-375). He remained in one
place with his arms and legs moving (T-375). When it was over, appellant did not know where he
was or what had happened (T-362). Appellant was trembling and tired (T-363,376). Eventually,
appellant was able to help himself get into bed (T-378). He fell asleep (T-376). In August, 1997,
Ms. Fenali observed appellant have another seizure (T-363).
Appellant had a valid Florida driver’s license (T-365). On May 19, 1996, appellant and Ms.
Fenali had plans to go to a movie (T-365). They had not argued that day (T-367). Ms. Fenali
received a telephone call from someone in the hospital notifling her that appellant had been in an
accident (T-365). Ms. Fenali went to the hospital (T-368). When she was finally able to see him,
appellant was tied to a slab. There was a lot of blood (T-368). Appellant kept asking, “What
happened?” over and over (T-368). Appellant was distraught (T-369). Ms. Fenali later learned that
appellant suffered two seizures in the hospital (T-369).
Mer appellant’s release fiom the hospital, he stayed at Ms. Fenali’s home for seven weeks
recovering (T-369-370). Appellant was treated by Dr.Manier after the accident (T-371). Ms. Fenali
drove appellant to his appointments (T-371).
Dr. Mayur C. Manier, a board certified neurologist specializing in epilepsy and electromyography (T-396-398), testified that he began treating appellant on May 17,1995, one year prior to the
accident, as a result of a referral by the Epilepsy Association of Broward County (T-399). Appellant
sought an evaluation and management of a seizure disorder (T-400).
Dr. Manier described various types of seizures. During a grand mal or tonic clonic seizure,
a person suddenly becomes unconscious while the body shakes and jerks for minutes (T-401-402).
An individual may stop breathing for a few minutes, bite his tongue or lose control of his bladder
and bowel function. The seizure may last for several seconds to several minutes (T-405). After the
- 12-
seizure, the individual may appear unresponsive, confused or disoriented for a period of time
depending upon the seventy and duration of the seizure (T-401-402).
During a complex partial seizure, an individual is unconscious and unresponsive. However,
his body does not shake or jerk and the individual’s eyes will remain open (T-404). The individual
does not necessarily fall down (T-406).
During a partial seizure, a person may have an unusual feeling. The person might have a
tingling sensation on one side of the body, have one arm or leg jerk or have difficulty speaking. The
person, however, is aware of everythtng that is occurring (T-405). An individual can operate a motor
vehicle (T- 43 1).
During a partial complex seizure, the individual may be able to operate the motor vehicle at
the onset but will have no control over the vehicle as the individual becomes unaware of his
surroundings and unresponsive (T-43 1).
Appellant’s history which was reviewed by Dr.Manier prior to appellant’s examination (T400-401). Appellant suffered a head injury and mild concussion in 1960 (T-407). Appellant’s
maternal uncle was born with epilepsy (T-407 ). Appellant’s seizure disorder began in 1967 or 1968
with a grand mal seizure during the night which was witnessed by appellant’s father (T-401-402).
Subsequently, appellant experienced complex partial seizures or episodes of difficulty speaking,
blank staring spells, inability to respond (T-402). Shaking and jerking did not occur during these
experiences (T-402,404).
Appellant was treated with Dilantin or Phenytoin which was prescribed by Dr. Silverstein,
a family care physician (T-403). Dr. Manier explained that an individual’s Dilantin level should be
maintained in the range of 10 to 20 to achieve seizure control (T-403). Because appellant’s level was
high, Dr. Silverstein advised appellant to stop taking the medication (T-403). In March or April of
-
13-
1995, ten days after appellant stopped taking Dilantin, he had a convulsion (T-403). Appellant did
not have another seizure before seeing Dr. Manier in May, 1995 (T-403).
On May 17, 1995, Dr. Manier conducted a neurological examination of appellant and
determined that he suffered from epilepsy (T-408-409). Dr. Manier offered appellant the choice of
continuing Dilantin therapy or changing to Depakote. Dr. Manier could not guarantee that Depakote
would control the seizures and it was more expensive than Dilantin (T-413). Appellant chose to
continue taking Dilantin (T-413).
On June 22,1996, an EEG was performed (T-413). Appellant’s Dilantin level was 25 which
was high but acceptable because the medication had been taken a short time before (T-413-414).
On June 28,1995, appellant returned to Dr.Manier for a follow up evaluation (T-414). Dr.
Manier reviewed the EEG findings with appellant. The results were normal (T-415). Appellant had
not experienced any seizures since his May, 1995 visit (T-415).
Appellant was again seen by Dr. Manier on September 27, 1995 (T-416). Appellant was
taking his medication regularly and had not suffered any seizures (T-416). Dr. Manier concluded
that appellant had long-standing partial seizures with complex symptomology. He was doing well
on Dilantin monotherapy with his Dilantin level in a therapeutic range (T-417).
Dr. Manier conducted another follow up examination on January 24, 1996 (T-418).
Appellant was doing well (T-418). He had not suffered additional seizures and was taking his
medication (T-418). Appellant had not had any reoccurrence of seizures since April, 1995. As
..
appellant was stabilized, he was directed to return for follow up in 6 months (T-418-419).
On January 24,1995, Dr. Manier determined that medically and by state law that it was safe
for appellant to drive an automobile (T-420). His Dilantin level was in the therapeutic range and he
had not experienced any seizures since May, 1995 (T-420).
- 14-
Dr. Manier saw appellant on an emergency basis on June 5, 1996, after the accident (T-420).
Appellant had been involved in the accident, had two subsequent seizures at the hospital and was
placed on additional medication (T-420). Appellant told Dr. Manier that he had been taking his
medication regularly. On May 19,1996, he was driving to visit his girlfiiend. He was under a little
stress because they were in the process of separating (T-421). The next thing appellant remembered
was being surrounded by paramedics and being taken to the hospital (T-421).
Dr.Manier obtained and reviewed the Delray Community Hospital records (T-421-424, A- 111). Appellant suffered a fracture of the clavicle during the accident (T-426). He was given an
additional prescription for Tegretol and had not had any seizures since his release form the hospital
(T-425).
On June 5,1996, Dr. Manier was not certain whether appellant had a seizure which resulted
in the accident or whether appellant hit his head during the accident, had a concussion and then had
the seizures (T-427). However, appellant clearly had two seizures in the hospital at a time when his
Dilantin level was in the therapeutic range (T-427). Consequently, it was possible that appellant had
suffered a break-through seizure (T-427). A break through seizure may occur for no reason at all
(T-429). Because appellant had a seizure on May 19,1996, he was not permitted by law to drive for
6 months from that date (T-430).
Since the June, 1996 examination, Dr. Manier considered additional records fiom the
hospital. He reviewed the drug toxicology screen which did not show any traces of alcohol or illicit
drugs in appellant’s system (T-431). He received the electroencephalogram done May 20,1996. It
showed localized slowing of brain activity on the left side which is abnormal (T-432-433). Dr.
Manier opined that to a reasonable degree of medical probability appellant suffered a breakthrough
seizure prior to the accident (T-433).
- 15-
On cross-examination, Dr. Manier testified that he did not know that on June 18, 1996, the
date of arrest, appellant told an emergency room physician that he had not had a seizure in a year
(T-339). Dr. Manier testified that at the January, 1996 visit he told appellant that he could operate
a motor vehicle (T-439). At the June, 1996, visit he told appellant that he could not operate a motor
vehicle (T-439). Dr. Manier did not know that appellant obtained a duplicate license on May 3 1,
1996 (T-439). Dr. Manier was not aware that appellant was responsive and talking at the scene of
the accident (T-440). He did not know that appellant was bleeding from the nose and mouth at the
scene (T-442).
On cross-examination, Dr. Manier maintained that appellant could have suffered a grand mal
or a partial complex seizure at the time of the collision (T-442). One cannot determine when the
seizure began and both types of seizures can be of brief duration, possibly 20 or 30 seconds (T-443).
Consequently, appellant may have changed lanes yet still experienced a seizure (T-443). Dr. Manier
explained:
Again, understand the nature of epilepsy. It’s different in person to
person; it’s different in the same person fiom time to time. They can
suffer a brief partial complex or grand mal seizure and can be fairly
awake and alert right ahead. And I have seen those seizures and I
witnessed those seizures. So, not necessarily that everyone who
suffers fiom partial complex seizure or grand mal seizure would
always be unresponsive or always be totally confuse. They can have
a subtle confusion, which can quickly resolve. I don’t know how long
the paramedics got there to examine Mr. Snyder but, as I said, within
30 seconds to a minute after a brief partial complex or grand mal
seizure, person can regain consciousness and can be well-oriented.
(T-446-447). Furthermore, observation of appellant sitting up with his hands on the wheel is
consistent with a complex partial seizure (T-447).
On redirect examination, in response to a hypothetical question which included the facts of
the collision, the witnesses’ observations and communications with appellant after the collision
-
16-
while still at the scene, the two seizures which appellant experienced at the hospital, and appellant’s
statements at the hospital, Dr. Manier opined to a reasonable degree of medical probability that a
person with appellant’s history could have suffered a seizure while driving his vehicle close to the
intersection (T-453-456). An individual may not remember having had a seizure (T-457).
Dr. Edwin Wingkun, a neurologist, began treating appellant on June 27,1996 (T-526,530).
Dr. Wingkun is a director of the Palm Beach County Seizure Clinic, a member of the advisory board
of the Epilepsy Association of the Palm Beaches and practiced with the Palm Beach Neurological
Group (T-527).
On June 27,1996, Dr. Wingkun obtained the medical and family history from appellant (T53 1-532). In addition, appellant explained the circumstances of the accident. While driving his
truck on May 19,1996, appellant experienced a feeling of going into a tunnel. This was followed
by unconsciousness (T-532). When he regained consciousness, appellant saw several persons
looking down upon him immobilizing him (T- 532). Appellant had no recollection of the accident
but was told he was traveling at a high rate of speed (T-532). Appellant was taken to Delray
Community Hospital where his Dilantin level was determined and a CT scan done (T-532).
Based upon the history, Dr. Win-
was of the impression that apellant suffered an attack
of unconsciousness although he was taking his medication at the time of the collision (T-535,541).
Appellant had not had additional seizures between the time of the accident and the
examination (T-533). Dr. Wingkun conducted a neurological examination (T-534). Dr. Wingkun
advised appellant not to drive a car, ride a bicycle or engage in any activities that might be harmful
to himself or others should he undergo another seizure (T-535).
On August 28, 1996, appellant was seen by Dr. Wingkun for a follow up visit (T-535).
Appellant had not had any seizures since the last visit (T-536). He was taking his medication (T-
- 17-
_-
536). He was not driving (T-536). Having reviewed the Delray Community Hospital medical
records, Dr. Wingkun discussed changing from Dilantin to Tegretol. The decision was made to
continue Dilantin with an additional medication, Lamictol (T-537). Appellant returned for a follow
up examination 5 weeks later as directed (T-538).
On cross-examination, Dr.Wingkun stated that he charged $600.00 for testimony (T- 548).
Dr. Wingkun stated that his opinion that appellant was unconscious at the time of the collision which
he formed on June 27,1996, was based upon the history appellant gave him and the blood work done
by the hospital (T-541). Since that time, Dr. Wingkun reviewed other records from Delray
Community Hospital (T-541,543). His opinion that appellant had a seizure at the time of the
collision was further supported by the two seizures he experienced at the hospital while having a
very high Dilantin level (T-545). Appellant was unconscious at that time (T-545).
The prosecutor referred Dr.Wingkun to his deposition testimony where he stated that it was
speculation when one spoke of unconsciousness and seizures at the time of the collision (T-547).
Dr. Wingkun replied that it was his first deposition. He did not understand and misinterpreted the
term “speculation.” (T-547). Looking at the whole situation and the records, Dr. Wingkun opined
that appellant most likely had a seizure (T-547).
Dr. Allen Knunholz, a board certified neurologist and professor of neurology at the
University of Maryland School of Medicine, testified as a defense witness (T-465). He directs the
Epilepsy Center at the University of Maryland (T-466). He has written 30 to 40 articles and several
book chapters on epilepsy (T-470). In the late 1980’s he conducted a comprehensive review of the
issue of epilepsy and driving which was published in the Journal of the American Medical
Association (T-472). He has continued to be involved in that issue (T-472).
After discussing the hardship which arises for epileptics in communities without public
- 18-
transportation, Dr.Krumholz gave a historical perspective of American laws relating to epilepsy and
driving (T-472-473). At the time of trial, every state permitted people with epilepsy to drive (T-474).
Studies have shown that 10 to 30 percent of persons with epilepsy who drive will experience an
accident due to a seizure (T-475).Approximately eighty percent of people with epilepsy never report
that they have epilepsy to motor vehicle authorities (T-479).
Dr. Krumholz examined appellant’s medical records fiom Dr. Steven Silverstein, Dr. Manier,
Delray Community Hospital and Dr. Wingkun (T-482). He also reviewed the depositions of William
Wright, Rosalie Fenali and Officer Richard Jacobson (T-482). He reviewed the records of the
accident which occurred on May 19,1998 (T-483). Dr. Knunholz opined within a reasonable degree
of medical probability that appellant suffers from epilepsy (T-482). In response to a hypothetical that
included appellant’s history of epilepsy, having a therapeutic level of Dilantin on May 19, 1996,
appellant’s feeling of going into a tunnel while driving west on Atlantic Boulevard, appellant’s
driving pattern leading up to accident, appellant’s conditions and responses after the accident while
still at the scene to civilians, paramedics and law enforcement, his suffering two tonic clonic seizures
at the hospital, his statements to law enforcement made the day following the accident concerning
his truck, the results of the toxicology report, and the hospital records, Dr. Krumholz opined to a
reasonable degree of medical probability that appellant suffered an epileptic seizure which resulted
in this accident (T-483-488,490-491). The opinion was based upon things that preceded the
accident, things that happened during the accident and things that occurred after the accident (T491).
As to conditions preceding the accident, appellant had an epileptic condition (T-491).
Appellant’s epileptic condition was not completely controllable despite medication (T-49 1).
Appellant has experienced two types of seizures, generalized convulsive seizure and complex partial
- 19-
seizures (T-492). Appellant has episodes during which he may have difficulty speaking or may stare
into space (T-492).
Dr. Knunholz explained that while people generally think of seizures as someone suddenly
failing down, the most common seizures consist of confusion, lack of awareness, and automatism
(T-493). Picking at one’s clothes or staring are examples of automatism (T-494). “p]eople can
actually perform rather complex acts during those seizures.” (T-493). During some types of seizures,
a person is able to drive an automobile (T-494). While a person is not in conscious control of their
motor acts during a complex partial seizure, an individual may be able to turn a wheel or step on a
pedal (T-502). Persons have been arrested for shoplifting during seizures (T-494). Partial complex
seizures may progress into full convulsive seizures (T-495).
Dr. Knunholz testified:
p] believe that Mr. Snyder experienced a partial seizure at the start
of this episode. Whether he went on into a full convulsive seizure, I
can’t be sure, but I think the reason that he swerved was probably part
of that seizure. The reason he didn’t take protective action was
because he wasn’t aware of his conscious environment or conscious -or wasn’t conscious of the surroundings, which is why did didn’t take
the usual kind of protective action, which would be to step on the
brake or do something of that nature. Furthermore, he was unaware
of the fact that he was in an accident...
(T-495). Appellant was in a post-ictal state following accident as evidenced by confusion (T-496).
Further, the medical records revealed that appellant had a generous level of Dilantin in his blood
which indicates that he was taking his medication regularly (T-499). One doctor noted that appellant
expressed having a feeling of going into a tunnel (T-500). This may have been an “aura” which is
a warning sign of a seizure (T-500).
On cross examination, Dr. Krumholz testified that he was paid $300.00 per hour and had
spent 6 hours on this case inclusive of travel (T-504). He does not often testify (T-505). He did not
- 20-
treat appellant or interview him (T-506). While he did not specifically recall the name “Twigger”
on cross-examination, he testified on redirect examination that paramedic Twigger’s report was part
of the medical records he reviewed (T-506,520).
Dr. Krumholz did not see evidence of a grand mal seizure or a tonic clonic seizure at the time
of the accident (T-507). Rather, he stated with a reasonable degree of medical certainty that
appellant was unconscious due to an epileptic seizure and that condition resulted in the accident (T508-510). He could not determine where exactly along Atlantic Avenue appellant became
unconscious (T-509-510). While the impact was severe, there was no evidence that appellant
sustained serious head injury (T-511-5 12). Nonetheless, appellant’s nose appeared to be bleeding,
a factor which further supported Dr. Krumholz’s opinion (T-5 11-512).
Dr. Krumholz testified that is unusual for a seizure to be caused by a traumatic event (T5 15). Loss of sleep, lack of food and stress can provoke seizures (T-5 15-516). In his opinion, it is
not probable for a seizure to result from being involved in a high speed crash (T-516).
The defense rested (T-552). The state did not present rebuttal evidence (T-557).
SUMMARY OF ARGUMENT
Point I: Relying upon circumstantial evidence, the state failed to present sufficient proof to
support appellant’s convictions for manslaughter by culpable negligence and 4 counts of culpable
negligence. The prosecution did not establish that operating a motor vehicle at 66 m.p.h. and
running a red light was culpable negligence. Nor did the state’s proof eliminate the likelihood that
the death of Regina Cassera was an excusable homicide. Rather, the prosecution’s circumstantial
evidence did not rebut and was entirely consistent with the reasonable hypothesis of innocence that
appellant was rendered unconscious by an epileptic seizure at the time of the traffic accident.
Consequently, the state failed to establish the elements of the offense. The trial court was remiss to
- 21-
deny the defense’s motion for judgment of acquittal as to each count. This Court should order
appellant’s discharge for all offenses.
Point II: Reversible error occurred where on objection by the state, the trial court excluded
a defense witness who would have offered relevant testimony in support of the defense theory of the
case. To undermine appellant’s claim that he suffered an epileptic seizure, the state introduced a
duplicate driver’s license application signed by appellant shortly after the collision. The question,
have you had any epileptic seizures within the past two years appears on the application with a
negative response. The defense maintained that the question had never been asked of appellant at
the time the application was processed. Rather, it was suggested that the examiner simply retrieved
appellant’s original driver’s license application from the computer and used that to issue the
duplicate driver’s license. To support this theory and thus, diminish the impact of the state’s
evidence, appellant sought to present the testimony of a witness who had obtained a duplicate
driver’s license &om the same branch office which issued appellant’s duplicate license. The witness
would have testified that the examiner did not ask the epilepsy question. The witnesses’ testimony
was thus relevant to the defense theory of the case. It’s wrongfid exclusion abridged appellant’s
constitutional right to call witnesses in support of his defeme. As the witnesses’ testimony related
to a significant piece of the state’s case, the error is not excused by the harmless error doctrine and
appellant is entitled to a new trial.
Point III: Although the case had been pending for more than a year, the state did not provide
the duplicate driver’s license application dated May 3 1,1996, until after the parties announced ready
for trial. The application contained a purported admission by appellant that he had not had an
epileptic seizure within the preceding two years. Upon receipt of a faxed witness list, appellant
moved in the alternative to exclude the evidence or obtain a continuance to allow additional
- 22-
investigation into the procedures employed by the driver’s license bureau. At the motion hearing,
the court did not inquire into the basis for the state’s failure to furnish the evidence in a timely
fashion. The court did not determine whether the discovery violation was substantial or trivial nor
did it make any findings as to the lack of procedural prejudice to appellant. In addition to its failure
to make adequate inquiry and findings, the court did not provide an appropriate remedy for the
discovery violation. The court did not afford appellant additional time to develop impeachment and
rebuttal evidence. As appellant suffered both procedural and substantive prejudice, he is entitled to
a new trial.
Point IV: The trial court reversibly erred by sustaining the state’s objection to the questions
posed by defense counsel to the venire. The effect of the ruling was to preclude counsel fiom
ascertaining the jurors’ views as to an element of the offense.
Point V: The lead detective made a statement which is fairly susceptible as a comment on
silence when he testified, “It was at that point but it was after he’s been read his rights and told me
he did not
This constitutional error requires a new trial because the evidence of guilt is not
--”
“clearly conclusive.”
APPELLANT’S CONVICTIONS FOR MANSLAUGHTER BY
CULPABLE NEGLIGENCE AND CULPABLE NEGLIGENCE
MUST BE SET ASIDE WHERE THE CIRCUMSTANTIAL
EVIDENCE DOES NOT ESTABLISH CULPABLE NEGLIGENCE AND DOES NOT REBUT THE REASONABLE
HYPOTHESIS OF INNOCENCE THAT APPELLANT HAD AN
EPILEPTIC SEIZURE WHICH RESULTED IN THE TRAFFIC
ACCIDENT.
Appellant was convicted of manslaughter by culpable negligence and 4 counts of culpable
- 23-
negligence. Section 782.07, Florida StatutG (1996) defines 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....
To support the charge, the state must establish the essential element of culpable negligence. 33
m D b e l l v. Stak,306 So. 2d 482,483 (Fla. 1975). Our Supreme Court has explained this legal
term:
We have repeatedly said that the culpable conduct necessary to
sustain proof of manslaughter under section 782.07 must be of a
gross andflagrant character, evincing reckless disregard of human
Zve, or of the safety of persons exposed to its dangerous effects, or
there is that entire want of care which would raise the presumption of
a conscious indirerence to consequences or which shows wantonness
or recklessness or grossly careless disregard of the safty and welfare
of the public or that reckless indrerence to the rights of others which
is equivalent of an intentional violation of them. (emphasis in
original- citations omitted)
McCrearv v. State, 371 So. 2d 1024,1026 (Fla. 1979); Preston v. Stak,56 So. 2d 543,544 (Fla. 1952)
~
quoting Savage v. State, 152 Fla. 367,ll So.2d 778,779 (Fla. 1926).
Furthermore, manslaughter is a residual offense. Hedges v. State, 172 Sa 2d 824 (Fla. 1965).
A complete definition of culpable negligence manslaughter must include a definition of excusable
homicide. Rojas v. State, 552 So. 2d 914 (Fla. 1989); Logan v. State, 592 So. 2d 295,300 (Fla. 5th
DCA 1991). Excusable homicide is defined in Section 782.03, Florida Statute (1996) as:
Homicide is excusable when committed by accident and misfortune
in doing any lawful act by lawful means and with usual ordinary
caution and without any unlawful intent, or by accident and misfortune in the heat of a passion, upon any sudden and sufficient provocation or upon a sudden combat without any dangerous weapon being
used and not done in a cruel or unusual manner.
- 24-
Thus,a conviction for manslaughter by culpable negligence must be supported by evidence which
(1) establishes culpable negligence and (2) excludes an excusable homicide.
At bar, the state failed to prove that the traffic accident which resulted in a death and personal
injury was caused by appellant’s culpable negligence. The state did not offer any evidence which
was inconsistent with the reasonable hypothesis of innocence that while lawfblly driving a motor
vehicle, appellant suffered an epileptic seizure which rendered him unconscious at the time of the
accident. In addition, the state’s proof did not demonstrate that the death was not an excusable
homicide.
A traffic collision occurred on May 19,1996. Appellant was the driver of a pickup truck.
His vehicle was observed proceeding west on West Atlantic Avenue approaching the intersection
of Congress Avenue. Appellant was traveling erratically at approximately 60 to 66 miles an hour
in a 35 m.p.h. zone (T-69,81-82,96,275-276). He changed lanes and proceeded into the intersection
although the trflic light had been red for approximately 5 seconds (T-75-76,85, 100-101,109).
Without taking any evasive action, appellant’s vehicle collided with a minivan which was making
a left turn from Congress onto West Atlantic in accordance with a left turn signal (T-6062,77,94,100-102,114-117).
The minivan had followed another vehicle that had completed the left
turn (T-62). One occupant of the minivan died while the four other occupants were injured.
The law is well settled that the act of driving a motor vehicle at an excessive speed without
more is not culpable negligence. Russ v. State, 140 Fla. 2 17, 191 So.2d 296 (1939); Filmon v. State,
336 So. 2d 590 (Fla. 1976). Further, exceeding the posted speed limit is not necessarily “excessive
speed.” Preston v. State, 56 So. 2d 543,544 (Fla. 1952). Similarly, the isolated act of failing to stop
at a t r a c control device before proceeding into an intersection is not culpable negligence. Peel v.
State, 291 So. 2d 226 (Fla. 1974). “[Clulpable negligence is not equivalent to the commission of
- 25-
a traffic inf?action.” Loean v. State, 592 So. 2d 295,298 (Fla. 5th DCA 1991). As the Logan
decision makes clear:
The commission of traffic infractions is not sufficient without more,
to support a conviction for culpable negligence manslaughter.
Culpable negligence depends on the extreme character of the conduct
itself, not its mere illegality. (Citations omitted.)
592 So. 2d at 295.
In arguing to the jury,the prosecutor below conceded that speeding alone or failure to obey
a traffic control device without more is simple negligence, not culpable negligence (T-594). She
maintained, however, that a combination of circumstances warranted a conviction (T-596). Thus,
the following well-established rules governing circumstantial evidence must be applied to determine
whether the state’s evidence is sufficient to support the convictions:
When the State relies upon purely circumstantial evidence to convict
an accused, we have always required that such evidence must not only
be consistent with defendant’s guilt but it must also be inconsistent
with any reasonable hypothesis of innocence.... Evidence which
furnishes nothing stronger than a suspicion, even though it would
tend to justifj the suspicion that the defendant committed the crime,
it is not sufficient to sustain conviction. It is the actual exclusion of
the hypothesis of innocence which clothes circumstantial evidence
with the force of proof sufficient to convict. Circumstantial evidence
which leaves uncertain several hypotheses, any one of which may be
sound and some of which may be entirely consistent with innocence,
is not adequate to sustain a verdict of guilt. Even though the
circumstantial evidence is sufficient to suggest a probability of
guilt, it is not thereby adequate to support a conviction if it is
likewise consistent with a reasonable hypothesis of innocence.
Davis v. State, 90 So. 2d 629 at 63 1-32 (Fla. 1956) (citations omitted). See also McArthur v. State,
35 1 So. 2d 972 (Fla. 1977); Mavo v. State, 7 1 So. 2d 899 (Fla. 1954). Cannon v. State, 91 Fla. 214,
107 So. 360,363 (Fla. 1926). “ It is not sufficient that the evidence creates a probability of and be
consistent with guilt. The evidence must be inconsistent with innocence.” Terzado v. State, 232 So.
- 26-
I ’
2d 232,233 (Fla. 4th DCA 1970).
In State v. J,aw, 559 So. 2d 187 (Fla. 1990), the Florida Supreme Court enunciated the
following special standard which must be applied:
A special standard of review of the sufficiency of the evidence applies
where a conviction is wholly based on circumstantial evidence.
Where the only proof of guilt is circumstantial, no matter how
strongly the evidence may suggest guilt, a conviction cannot be
sustained unless the evidence is inconsistent with any reasonable
hypothesis of innocence.
559 So.2d. at 188 (citation omitted). See also Williams v. Stak, 437 So. 2d 133,135 (Fla. 1983),
cert. den., 466 U.S. 909 (1984).
In Lonv v. State, 689 So. 2d 1055 (Fla. 1997), the Supreme Court was obliged to set aside
a first degree murder conviction because it adhered to these well-settled principles. The Court
wrote:
The question of whether the evidence is inconsistent with any other
reasonable inference is a question of fact for the jury. (Citations
omitted.) Nevertheless, a jury’s verdict on this issue must be reversed
on appeal if the verdict is not supported by competent, substantial
evidence. Evidence that creates nothing more than a strong suspicion
that a defendant committed the crime is not sufficient to support a
conviction (citations omitted).
689 So. 2d at 1058.
Here, the circumstantial evidence does not establish culpable negligence: “consciously doing
an act or following a course of conduct that the defendant must have known or reasonably should
have known, was likely to cause death or great bodily injury.” Fla. Std. Jury Instr. (Crim.) p. 1203
(1996). Rather, the state’s evidence is entirely consistent with the reasonable hypothesis of
innocence advanced below that appellant had an epileptic seizure prior to the collision which
rendered him unconscious at the time the incident occurred. As appellant was unconscious, he can
- 27-
not be criminally responsible for the act of running a red light at a high rate of speed.
The defense showed that appellant, a 55 year old man at the time of the collision, had
suffered fiom epilepsy since the late 60's (T-408-409). Epilepsy is a neurological brain disorder
which manifests itself by seizures (T-400). There are two broad classifications of seizures: partial
and generalized. The Epilepsy Foundation of America, How to Recocmize and Classifv Seizures (2d
Ed 1992) p. 5 (A-2 1). Partial seizures are further categorized as simple partial, complex partial
(impaired consciousness) and partial seizures secondarily generalized. Id at p. 6 (A-22). Generalized
seizures are categorized as absence seizures, myoclonic seizures, clonic seizures, tonic clonic
seizures, atonic seizures. U at p. 11 (A-27). Appellant's history included what was traditionally
termed a grand mal seizure or tonic-clonic seizure as well as complex partial seizures (T-40 1-404).
The Epilepsy Foundation describes a complex partial seizure as follows:
Partial seizures with complex symptomatology are usually termed
complex partial seizures. Unlike simple partial seizures, these
seizures are accompanied by some impairment of consciousness.
Although individual may appear to be conscious, they are only
partially aware of their environment and later have no recollection of
the incident.
Epilepsy Foundation of America, How to Recognize and Class'if? Seizures (2d Ed 1992)p. 7 (A-23).
Appellant was treated with Dilantin prescribed by a family care physician (T-403). In March
or April of 1995, more than one year before the May, 1996 collision, appellant was directed to
discontinue this medication because his Dilantin level was too high. As a result, he suffered a
seizure (T-403).
Approximately one month later, on May 17,1995, appellant was examined by Dr.Mayur C.
Manier, a board certified neurologist specializing in epilepsy (T-399). Dr. Manier prescribed
Dilantin to control appellant's seizure disorder (T-413). Appellant was again seen by Dr. Manier
- 28-
on June 28,1995, &er an EEG was performed on June 22,1998, on September 27,1995 and on
January 24, 1996 for routine follow-up visits (T-413-419).
At trial, Dr. Manier testified that during the 8 month period fkom May through January,
appellant took his medication regularly. Appellant had not had a seizure since April, 1995 (T-4154 19). Significantly, Dr. Manier testified that on January 24, 1996, he determined that it was both
medically and legally safe for appellant to operate an automobile (T-420). Appellant was directed
to return for examination by Dr. Manier in 6 months.
Based upon Dr. Manier’s representation, it was reasonable for appellant to believe that he
could safely operate a motor vehicle without risk of harm to others on May 19,1996. Although he
suffered fkom epilepsy, his disorder was controlled by Dilantin and he had been seizure fkee for more
than one year. As such, appellant’s conduct in operating the motor vehicle with prior knowledge of
his seizure disorder is not culpable negligence. Cf. Williams v. Frohock, 114 So. 2d 221 (Fla. 3d
DCA 1959). See also, Behn v. State, 621 So. 2d 534 (Fla. 1st DCA 1993) (knowingly operating a
vehicle with defective brakes and running a red light is not culpable negligence).
In Williams v. Frohock, the trial court set aside an award of punitive damages finding that
the defendant did not engage in gross negligence by operating a motor vehicle and causing a
collision. Mr. Frohock, the defendant, experienced a black out while driving his car during the day.
He lost control and hit a pedestrian standing on the sidewalk. While Frohock had suffered past black
outs, this was the first time one occurred while he was driving. After his first loss of consciousness,
the defendant was seen by a doctor who did not diagnosis epilepsy. When seen again by the same
doctor after several other attacks but before the collision, the doctor again refkained fkom diagnosing
a seizure disorder. In approving the trial court’s finding that the defendant was not grossly negligent
in operating his motor vehicle despite his history of blackouts, the appellate court relied heavily upon
- 29-
the treating physician’s testimony. The doctor testified that he did not have any reason to tell the
defendant that he should not drive and he never told the defendant that he should not drive.
Similarly at bar, Dr. Manier, appellant’s treating physician, specifically testified that at
appellant’s examination preceding the accident, appellant’s seizure disorder was controlled by
Dilantin monotherapy (T-419). He stated that it was safe, both medically and legally, for appellant
to drive an automobile (T-420). Appellant should not be faulted for having relied upon sound
medical advice offered after repeated examinations.
At this juncture, it bears emphasis that according to the state’s witnesses, appellant had a
valid Florida driver’s license on the date of the collision (T-202,283). Had it been medically unsafe
for appellant to operate a motor vehicle, Dr. Manier would have been authorized by Section 322.126,
Florida S t m,to file a written report of the physical disability to the Department of Highway Safety
and Motor Vehicles. The prosecution did not introduce any such report into evidence.
The prosecution’s witnesses described appellant’s condition immediately following the
collision. Their testimony is not inconsistent with the reasonable hypothesis of innocence that
appellant suffered a seizure.
Eyewitness Daren Rice, the first person to have contact with appellant, described appellant
as “dazed but coherent’’ and “confused” (T-104-105,107). In his statement to law enforcement made
the day following the collision, Rice stated “he [appellant] grabbed his head and said, ‘Oh my God,’
and he mumbled. You know he seemed real groggy. The accident made me-- you know, fiom when
I first walked around to the driver’s door and tried to open it, and he was slurched over, you know,
and it looked like he had been knocked unconscious or something.” (T- 122).
Delray Beach police officer Privitera was the next person to have contact with appellant (T186). Appellant was outside of an open passenger door leaning against the truck (T-187). Appellant
- 30-
was shook up, emotionally upset, his hands were trembling and his face was bleeding (T-188-187).
During their brief 2 to 3 minute conversation, appellant was coherent (T-189-190). Appellant asked
what happened and what did he do (T-189). Although appellant declined medical attention, Privitera
sent the paramedics to appellant because there was blood on his face (T- 195).
Paramedic Twigger was the third individual to communicate with appellant. He described
appellant as “confhed” (T-133). He observed blood coming fiom appellant’s nose and mouth,yet
there was no obvious head injury (T-132). Twigger asked appellant if he had lost consciousness
during the accident (T-135). Twigger noted appellant’s response as “unsure as to loss of
consciousness.” (T-135-136). In his incident report, Twigger wrote:
Pt. found in passenger seat confused. Pt. states he was driver of
pickup. Unk if seat belt was worn. Pt. doesn’t remember accident.
(A-1).
Appellant was taken fiom the scene to Delray Beach Community Hospital. At the hospital,
he experienced two tonic-clonic seizures. Each seizure was observed by hospital personal and
documented in the Multi Disciplinary Patient Care notes (A-4). While at the hospital, appellant was
attended to by Dr. Bruce Barton. Dr. Barton’s consultation notes reflect that appellant had a
therapeutic level of Dilantin in his system at the time these tonic-clonic seizures occurred (A-5-6).
On June 5,1996, after his release fiom the hospital, appellant was examined by Dr. Manier
on an emergency basis (T-421-424). At trial, Dr. Manier candidly testified that on June 5,1996, he
was not certain whether appellant had a seizure which resulted in the accident or whether appellant
suffered a concussion during the accident which then resulted in the seizures at the hospital (T-427).
Since that examination, Dr. Manier reviewed the drug toxicology screen. It did not show any traces
of alcohol or illicit drugs in appellant’s system although appellant did have a therapeutic level of
- 31-
Dilantin (T-427,431). Additionally, Dr. Manier reviewed the electroencephalogramconducted on
May 20,1996, which revealed an abnormality, localized slowing of brain activity on the left side (T432-433). Based upon all the information provided to him prior to trial, Dr. Manier opined to a
reasonable degree of medical probability that appellant suffered a break through seizure at the time
of the accident (T-433).
Dr. Manier had considered that appellant’s vehicle changed lanes prior to entering the
intersection (T-443) and that appellant was observed with his hands on the wheel before the collision
(T-443,447). He explained, however, that the seizure may have been of a brief duration, possibly
20 to 30 seconds which would have allowed for this action (T-443). His opinion remained the same
in response to a lengthy hypothetical which incorporated all of the state’s proof (T-453-456).
Similar opinions were presented to the jury by Dr. Wingkun (T-535,541,547) and Dr.
Krumholz (T-483-488,490-491). Dr. Wingkun, a local neurologist, began treating appellant on June
27,1996, and saw him again on August 28,1996. While Dr. Krumholz had not personally examined
appellant, he reviewed medical records, depositions and records of the accident which occurred on
May 19,1998 (T-482-483).
Further, Dr. Krumholz is a leading authority in this field. He is a board certified neurologist
and professor of neurology at the University of Maryland, School of Medicine (T-465). He directs
the Epilepsy Center at the University of Maryland (T-466). He has written 30 to 40 articles and
several book chapters on epilepsy (T-470). See e.g. Knunholz, Allan, M.D., Driving and Epilepsv
(A-38-45). In the late 1980’s, he conducted a comprehensive review of the issue of epilepsy and
driving which was published in the Journal of the American Medical Association (T-472). He has
continued to be involved in that issue (T-472).
Dr. Knunholz believed that appellant experienced a partial complex seizure at the time of
- 32-
the collision (T-495). Appellant’s erratic driving and failure to take evasive action were attributable
to the seizure (T-495). When contact was made with appellant after the collision, appellant was in
a post-ictal state (T-496). Thus, within a reasonable degree of medical certainty, at some point on
Atlantic Avenue appellant was rendered unconscious by an epileptic seizure and this condition
resulted in the accident (T-508-510).
Appellant recognizes that the jury is not required to believe the testimony of the expert
witnesses. State v. Ward, 374 So. 2d 1128 (Fla. 1st DCA 1979) (appellate court reversed order
granting a motion to dismiss a vehicular homicide charge based upon a neurologists opinion that the
defendant suffered a seizure which resulted in the collision). However, their testimony forms the
basis for the reasonable hypothesis of innocence advanced by appellant. To support the convictions
based on circumstantial evidence, the state was required to present some proof which is inconsistent
with the reasonable hypothesis of innocence. Davis v. State,90 So. 2d at 631-32; Cannon v. StaQ,
107 So. at 363; State v. Law, 559 So. 2d 187; Low v. State, 689 So. 2d at 1058. Neither the
circumstances leading up to the collision nor appellant’s condition after the accident rebut the claim
that appellant experienced a seizure at the time of the collision.
At trial, the state presented two statements purportedly made by appellant after the collision
which at first blush appear to rebut the claim that appellant experienced a seizure. The first
statement appears on a duplicate driver’s license application which is signed by appellant.* The
application, State Exhibit 14, contains the question, “Have you suffered from epilepsy, fainting, or
dizzy spell within the past two years? (Yes/No)” (A-47) ‘No” appears as the typed response (A-47).
’Appellant applied for the duplicate driver’s license on May 3 1, 1996 (T-280). This was
before appellant’s doctor advised him that he could no longer drive and before his arrest on these
charges (T-280,420,430).
- 33-
The application is signed by appellant (A-47)3. The second statement was made subsequent to
appellant’s arrest to an emergency room physician (T-282). According to the arresting officer,
appellant told the doctor that he had not had a seizure in over a year? (T-283).
While the statements may have been admissible as an exception to the hearsay rule as an
admission of a party opponent, they are not sufficient to support a conviction. See, State v. Elkin,
595 So. 2d 1 19,120 (Fla 3d DCA 1992), rev. den. Elkin v. State,602 So. 2d 947 (Fla. 1992) (“An
admission is not equivalent to a confession and is insufficient to authorize conviction.”)
Moreover, both statements are patently false. Without question, appellant suffered two
seizures in the hospital. These seizures were witnessed by medical personnel and documented in the
hospital records (A-4). Thus, any assertion that appellant did not have a seizure during this time
period is simply untrue. As the statements are false, they do not rebut the reasonable hypothesis of
innocence that appellant suffered a seizure at the time of the accident.
The prosecution introduced other statements of appellant which are consistent with appellant
having suffered a seizure at the time of the accident. Paramedic Twigger testified that he asked
appellant if he lost consciousness during the accident (T-135). Twigger recorded appellant’s
response as “unsure as to loss of consciousness” (T-135-136). Officer Cummings testified that
3Attrial, appellant asserted that this question had never been asked of him. He suggested that
the examiner merely accessed the screen fiom the original driver’s license application, updates the
address and prints the form. Thus, the responses fiom the original license application appear on the
duplicate application (T-325-326) (See A-46,47). While the state presented the testimony of a
driver’s license examiner that the question should be asked as a matter of procedure, the
examiner/witness did not have any communication with appellant (T-3 12,330). Further, appellant
sought to call a defense witness to testiQ that she applied for a duplicate license at the same office
and was not asked this question. Her testimony was excluded on the state’s relevancy objection
(See, Point 11, infka).
This statement was not included in the officer’s report (T-298).
- 34-
appellant told him that he was taking a leisurely drive to Deerfield Beach to visit his girlfriend (T201). However, appellant was unable to explain the collision (T-201). Similarly, officer Jacobson
testified that appellant did not h o w the circumstances of the accident (T-288). These statements
are consistent with an individual who has experienced a seizure. See, Porter, Roger J., M.D.,
. .
F.oiler>sv100 Elementary Pnnciples (2d 1989) p. 35-37 (A-53-55). As Dr. Manier testified at trial,
the individual may not remember having had a seizure (T-457).
In essence, the prosecution’s proof was consistent with both culpable negligence and
excusable homicide. While one may infer from the evidence that appellant acted in reckless
disregard of human life, one may also infer that the collision was an accident which occurred while
appellant was doing any l a d act by l a d means and with usual ordinary caution and without any
unlawful intent. As both interpretations of the circumstantial evidence are equally plausible, the state
failed to meet its burden of establishing the crimes charged. See Mun~inv. State, 689 So. 2d 1026,
1029 (Fla. 1995). A conviction not supported by the evidence violates the due process clause of the
Fourteenth Amendment to the United States Constitution. J&g-
*
443U.S.307,99S.
Ct. 278 1, 6 1 L. Ed. 2d 560 (1979). Thus, appellant’s convictions for manslaughter by culpable
negligence and 4 counts of culpable negligence must be set aside and his discharge ordered.
REVERSIBLE ERROR OCCURRED WHERE RELEVANT
DEFENSE EVIDENCE WAS WRONGFULLY EXCLUDED.
Appellant relied upon the reasonable hypothesis of innocence that he suffered an epileptic
seizure which resulted in the collision to defend against the charges of manslaughter by culpable
negligence and culpable negligence. Twelve days before trial (SR-1) and after both sides had
announced ready for trial at an earlier calender call (T-7-10), the state furnished additional discovery
- 35-
to the defense (R-SO). The state provided a duplicate driver’s license application which was signed
by appellant and dated May 3 1,1996. The form contained the question, “Have you suffered fkom
epilepsy, fainting, or dizzy spells within the past two years? (Yes/No)” and the response “No” (A47). This question and answer amounted to an admission, albeit false, purportedly made by appellant
that he had not suffered seizures during the time period encompassing the collision.
Appellant’s pretrial efforts to exclude this evidence or gain a continuance to develop
evidence to counter the state’s newly disclosed evidence were unsuccessful. (See Point 111, inpa)
(T-14-23). In the short time remaining before trial, appellant did the best he could to combat the
impact of the duplicate application on the jury. The defense located Patricia Peushold (T-337). Ms.
Peushold would have testified that in May, 1997, she went to the Hillsborough office to apply for
a duplicate driver’s license to replace a lost license (T-337). The examiner did not ask her if she had
epilepsy, dizziness or spells (T-337). Rather, a printout of the earlier driver’s license was made, she
signed it, and left (T-337).
Based upon the prosecution’s relevancy objection, the court excluded Ms. Pueshold‘s
testimony. The court rejected defense counsel’s argument that the timing of Ms. Pueshold’s visit
to the driver’s license bureau was not determinative of the admissibility of her testimony since Mr.
Reynolds, the state’s witness through whom appellant’s application was admitted into evidence, still
worked at the Hillsborough office. Instead, the court ruled that Ms. Pueshold’s experience at that
branch was irrelevant because it occurred one year after appellant’s application was made (T-339-
.
341). Reversible error occurred. Vannier v. State, 714 So. 2d 470 @la. 4th DCA 1998); Zanicck
v, State, 679 So. 2d 40 (Fla 4th DCA 1996).
The due process clause of the Fourteenth Amendment to the United States Constitution
guarantees a citizen’s right to present witnesses to M e r his defense. Chambers v. MississiFui, 410
- 36-
U.S. 284, 302, 35 L. Ed. 2d 297, 93 S. Ct. 1038 (1973). Recognizing the importance of this
constitutional right, our Supreme Court had written, “Where evidence tends in any way, even
indirectly, to establish a reasonable doubt of defendant’s guilt, it is error to deny its admission.”
hverav. State,561 So. 2d 536,539 (Fla. 1990).
Recently, in Vannier v. State, this Court stated the controlling legal principles which apply
where the state lodges a relevancy objection to defense evidence:
The Florida Evidence Code defines relevancy as “tending to prove or
disprove a material fact.” g90.40 1, Fla. Stat. (1995). “All relevant
evidence is admissible, except as provided by law.”$90.402, Fla. Stat.
(1995). While the defense is bound by the same rules of evidence as
the state, (footnote omitted) the question of what is relevant to show
a reasonable doubt may present different considerations than the
question of what is relevant to show the commission of the crime
itself If there is any possibility of a tendency of evidence to create a
reasonable doubt, the rules of evidence are usually construed to allow
for its admissibility. (Citations omitted).
714 So. 2d at 472.
Based upon this rule of law, the trial court wrongfully excluded Ms. Pueshold’s testimony.
State witness Steven Rudolph was employed as a driver’s license examiner at the Hillsborough
Branch both at the time appellant applied for a duplicate license as well as one year later when Ms.
Pueshold applied for hers (T-304-305). While he did not process appellant’s application (T-3 12,
330), he was permitted to describe the procedures which examiners are trained to follow when
processing a duplicate application (T-306,3 17). The procedure includes asking the question
pertaining to epilepsy. There was no suggestion that this procedure had been eliminated. As the
procedure remained the same, Ms. Peushold’s testimony was relevant to show that it is not always
followed. Thus, her testimony would have cast doubt upon the likelihood that the examiner
processing appellant’s application actually asked the question.
- 37-
In Zanicchi v. State, 679 So. 2d at 40, this Court found that the exclusion of relevant defense
evidence was reversible error. The defendant was charged with commission of a lewd and lascivious
act in the presence of a minor. His defense was misidentification. The victim testified that the
perpetrator’s vehicle had a Seminole license tag with the number “524P’ appearing on it. On two
subsequent occasions, the victim believed she saw the vehicle again but the tag number was “S24JP”
and its vehicle’s color was different fiom that originally reported. “S24JP” was registered to the
defendant. To counter this evidence, the defense attempted to show that “S42JP” and “S29JP” were
locally registered tag numbers. The trial court found this evidence irrelevant and excluded it. This
Court reversed. “The defense simply wanted to introduce evidence of other similar license tags to
show how easily one could misread or transpose a number or letter.” 679 So. 2d at 41.
Likewise, appellant simply sought to introduce some testimony to show that examiners at the
Hillsborough driver’s license office do not always ask the epilepsy question. Particularly given the
short time fiame in which the defense had to locate a witness to cast doubt upon the veracity of the
duplicate application, the trial court should have applied the rules of evidence to allow admission
of Ms. Pueshold’s testimony. Its failure to do so deprived appellant of his right to a fair trial
embodied in the Fourteenth Amendment. Vannier v. State,714 So. 2d at 471; Z m‘cchi v. State, 679
So. 2d at 42.
As the error is of a constitutional nature, the state bears the burden of demonstrating that the
error
is harmless beyond a reasonable doubt. Goodwin v. State, 23 Fla. L. Weekly D 9 18 (Fla. 4th
.
DCA April 8, 1998). Considering the area of evidence to which the error relates in the context of
the other circumstantial proof, appellant suggests that the state cannot meet that burden, here. The
application was the single most important item of evidence presented to the jury by the state. Not
only did it impact upon the defense theory of the case, (But see Point I, supra), it suggested that
- 38-
appellant was a dishonest menace to society. It thus provided a superficially appealing reason to find
guilt despite insufficient circumstantial evidence. Exclusion of the testimony of the single witness
which would have diminished the impact of this evidence was anything but harmless error. See
Zanicchi v. state,679 So. 2d at 41. Thus,appellant is entitled to a new trial.
POINT IIl[
HARMFUL ERROR OCCURRED WHERE THE COURT DID
NOT MAKE ADEQUATE INQUIRY NOR PROVIDE A
PROPER REMEDY FOR THE STATE’S UNTIMELY DISCLOSURE OF EVIDENCE.
Appellant’s case had been pending for approximately 15 months when the state finally
disclosed the most devastating item of evidence it intended to offer at trial. After both sides had
announced ready for trial (T-7-10), the state advised defense counsel that an application for driver’s
license submitted by appellant in May, 1996 had just been located by the investigating officer. The
document was fimished to defense counsel on November 19, 1997. Two days later, on Friday
November 21, 1997, a supplemental witness list naming a representative of the Driver’s License
Bureau was faxed to defense counsel (R-5 1). That same day, defense counsel filed a written motion
for continuance to allow investigation into the authenticity of the document, the procedures used to
complete the form and locate additional defense witnesses to explain it (R-50). Alternatively,
appellant sought exclusion of the evidence. (R-52-53).
On Monday, November 24,1997, the court noted that the case was set for trial and the state
aimounced ready for trial (T-14,16). The defense requested a ruling on its two written motions (T16). Defense counsel apprised the court of the untimely disclosure of the May, 1996 driver’s license
application and late listing of the witness (T-17). Defense counsel explained the significance of
these items to the court:
- 39-
The defense in this case is that Mr. Snyder had an epileptic seizure at
the time of this accident. And we have some physicians to show that.
And after the accident... Mr. Snyder went to get a duplicate license...
for identification purposes. And, on the application, there are some
questions, which they’re supposed to ask you, and one of them, it
says, have you ever had a seizure or have you ever had any type of
fainting spells or illness in the last two years. And, on that document
that the State provided me, he put-- it’s alleged, no. ... I had no
knowledge of that. And Mr. Snyder would indicate that was never
any questions asked of him.
My concern is, I have to bring somebody in fiom the Department of
Highway Safety and Motor Vehicles to counter Mr. Goldstein [the
new witness]...
(T- 18). The court asked the state to respond then interrupted the prosecutor’s explanation for failing
to h n i s h the information earlier stating, “I take it that it was a good-faith late
(T-19). The state
--”
contended that the defense had prior knowledge of the existence of the application because it was
completed by appellant. Further, the state intended to use it on rebuttal and was not certain that it
was required to disclose rebuttal evidence (T-20-21). The defense replied:
[Tlhat even prejudices me more than -- because my witnesses are
going to indicate that he had a seizure at the time of this accident.
And, if -- and State, on rebuttal -- and if I can’t put on evidence -now, I have two witnesses that may-- two additional witnesses that
may indicate, when they went to get a duplicate license, none of those
questions were asked. If the State’s going to put that on in rebuttal,
and say-- and hold up to a jury and say, look, Mr. Snyder denied this,
I have no opportunity to even -- I have no opportunity to put my
witnesses on after rebuttal. I am -- this is very prejudicial to me at this
particular time.
I want to find out exactly what these DHSMV employees say to these
individuals when they get duplicate licenses. It appears to me that the
duplicate license is the same license that was issued to Mr. Snyder in
1992, with the same computer- written nos to those critical questions,
have you had a seizure within the last two years. That’s it. And, if she
does that in rebuttal, which I’m sure Ms. Roberts will do, because
certainly, she knows by now, it’s -- I’m going to put on evidence as
to the fact that Mr. Snyder had a seizure. That would be very, very
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harmful to me because I could not rebut that and I could not put on
anything on my case in my defense case, in that regard.
(R-21-22). The court summarily denied the motion to strike a witness and motion for protective
order (T-23).
The court also denied the defense request for a continuance stating:
This case has been ready for trial several times, and announced ready
for trial and been reset for trial on several occasions, and I am loathe
to reset it again. The motion for continuance is denied.
(R-23). The court directed the prosecution to make the new witness available for deposition by
defense counsel (T-23).
Error occurred where the trial court denied the request to exclude the evidence without
making adequate inquiry into the circumstances of the discovery violation. Assuming arguendo the
court conducted a sufficient inquiry, it was an abuse of discretion to deny the request to continue the
case to allow defense investigation.
The late listing of the witness and the untimely disclosure of the driver’s license was a
discovery violation triggering the court’s duty to inquire. State v. Schoug, 653 So. 2d 1016,1018
(Fla. 1995) (discovery violation occurred where state filed an amended witness list shortly before
trial). Contrary to the prosecutor’s representation, the obligation to fUrnish discovery includes
statements of the defendant as well as evidence which the prosecutor intends to offer on reb~ttal.~
Brown v. State, 640 So. 2d 106 (Fla. 4th DCA 1994); Smith v. State, 500 So. 2d 125 (Fla. 1986),
reversed on other grounds, State v. Schopp,653 So. 2d at 1018-1021. Having raised the issue by
written motion, appellant triggered the court’s duty to inquire into the circumstances surrounding
5Theprosecutor actually presented the evidence to the jury during its case in chief (T-283285,304-326).
- 41
-
the state’s failure to furnish discovery in a timely fashion.
The court must inquire as to “whether the states’ violation was
inadvertent or wilful, whether the violation was trivial or substantial
and most importantly, what effect, if any did it have upon the ability
of the defendant to properly prepare for trial.” (Citation omitted)
Tarrant v. State, 668 So.2d 223,224 (Fla. 4th DCA 1996). Substantial vs. trivial refers to the
significance of the witness to the case. Thompson v. State, 565 So. 2d 1311,1316 @la. 1990).
Prejudice refers to “procedural prejudice.”
As to prejudice, the inquiry must focus on whether there was
procedural rather than substantive prejudice. That inquiry involves
two aspects. First, courts must determine whether the violation
impaired the defendant’s ability to prepare for trial...
Once it has been ascertained whether the discovery violation hindered
the defendant in his preparation for trial, the court must consider the
nature of the violation in fixing upon a sanction.
Thompson v. State,565 So. 2d at 1316-1317.
At bar, the court did not make any findings required by law. First, the court assumed that the
state inadvertently failed to disclose the evidence until after the parties had announced ready for trial
although the case had been pending for more than a year (T-19). The court never determined when
the prosecutor first learned of the existence of the 1996 application or why it took so long to provide
a copy of the application to the defense. This information cannot be garnered fiom the discussion.
Second, the court never determined whether the violation was trivial or substantial. Despite defense
counsel’s explanation of the significance of the application (T-l8), the court never made a finding
in this regard. Last, the court omitted a finding as to whether appellant suffered procedural prejudice
although defense counsel was again very specific in stating his need to conduct additional
investigation (T-l8,22). The court’s failure to conduct an adequate inquiry and state its findings on
the record is error. Mobley v. State, 705 So. 2d 609 (Fla. 4th DCA 1997).
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Moreover, the court did not fashion an appropriate sanction. While the court offered
appellant the opportunity to depose the witness, this was not a cure. As this Court stated in Moblev:
Although the trial court allowed defendant an opportunity to interview the witness, this alone does not cure the procedural prejudice.
The record does not disclose that the trial court ever addressed
defendant’s primary concern-- that the late disclosure affected her
trial strategy and deprived her of the ability to obtain impeachment or
rebuttal evidence. (Citation omitted).
705 So. 2d at 61 1.
I.
At bar, the court was bound to grant a continuance to cure the violation. Appellant was
entitled to additional time to investigate the procedures used by the driver’s license examiners when
processing an application for a duplicate license. The importance of a continuance as a remedy is
underscored by the events which unfolded at trial.
In the short time between learning of the state’s intent to offer the application and the
presentation of the defense case, appellant was able to locate a witness, Ms. Pueshold, who had a
similar experience when she applied for a duplicate application at the Hillsborough Branch. She too
was never asked if she had suffered fiom epilepsy when her application was processed (T-337).
Appellant, however, was prevented fiom presenting her testimony. It was excluded by the court as
irrelevant because her application was processed one year after that of appellant’s (T-339-341) (See
point 11, supra). Had appellant had additional time to investigate, he could have located persons
whose applications were made at the same time and by the same examiner. Thus, procedural
prejudice clearly appears in this record.
Harmful error is presumed where the court conducts an inadequate inquiry into a discovery
violation. State v. Schopp, 653 So. 2d at 1021; Mobley v. State, 705 So. 2d at 61 1. That
presumption cannot give way in the instant cause as the error caused substantive prejudice. The
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untimely disclosed document was the single most significant piece of evidence offered by the state
at trial. It contained a purported admission by appellant, albeit false, that he had been seizure fiee
for two years. Relying upon this evidence, the prosecutor urged the jury to convict appellant because
he drove knowing that he had epilepsy and without disclosing this condition to the driver’s license
bureau (T-597,652,656). Under these circumstances, the court’s failure to make adequate inquiry
and grant appropriate relief entitles appellant to a new trial.
POINT IV
THE TRIAL COURT ERRED BY UNREASONABLY LIMITING DEFENSE COUNSEL’S INQUIRY OF THE VENIRE
REGARDING EXCUSABLE HOMICIDE.
Prior to voir dire, the court informed the parties of its “rules” (SR-4-5). Counsel is not
permitted to “preach to the jury... educate them to your theory of the case...instruct the jury on the
law...pretry the case or attempt to educate the jury about a particular theory of the case...” (SR-5).
During defense counsel’s voir dire, he asked the court to read the information to the prospectivejury
(SR-133). When the court finished, defense counsel addressed the panel:
[I]f the Judge were to instruct you that the -- someone was killed, like
you’ve -- like he’s indicated, read you the Information, but the killing
was committed by accident and misfortune, in doing any lawful act,
by lawful means, with ordinary caution, without any unlawful intent,
there was an accident could you find the defendant -- could you find
someone not guilty?
(SR-136-137). The state’s objection was sustained and the court admonished defense counsel that
the query violated the its earlier instructions (SR-137). Defense counsel next asked the panel if they
could follow an instruction on excusable homicide (SR-137 ). One venirewoman admitted that she
might have a problem (SR-137). Another juror shook his head then commented that he would have
a hard time finding a person who had sped through a red light not guilty (SR-138). When counsel
- 44-
attempted to probe the juror, the court interrupted and advised the juror that counsel was not
permitted to discuss the facts in detail with the potential jurors (SR-139). Later, the court refused
another venirewoman's request for a definition of culpable negligence (SR-144). The court's "rules"
as well as it's rulings denied appellant his right to a fair and impartial jury. Lavado v. State, 469 So.
2d 917 (Fla. 3d DCA 1985), reversed, 492 So. 2d 1322 (Fla. 1986).
A proper sphere of exploration during voir dire includes those legal concepts applicable to
the case, even when couched in hypothetical terms. Pait v. State, 112 So. 2d 380 (Fla. 1959) (theory
of felony murder); Pope v. State, 84 Fla. 428,438,94 So. 865,869 (Fla. 1922) (aiders and abettors);
-
Jones v. State, 378 So. 2d 797 (Fla. 1st DCA 1979), Eert. deru'ed, 388 So. 2d 1114 (Fla. 1980)
(presumption of innocence). Voir dire is designed to "remove prospective jurors who will not be
able to impartially evaluate the evidence." Moses v. State, 535 So. 2d 350,351 @la. 4th DCA 1988),
connors v. United states, 158 US. 408,413, 15 S . Ct. 951,953,39 L. Ed. 2d 1033 (1895).
Only through proper inquiry can defense counsel glean the information necessary to an intelligent
exercise of either a peremptory challenge or one for cause. Rosales-LoDez v. United States, 451 U.S.
182,188,101 S . Ct. 1629,1634,68 L. Ed. 2d22,28 (1981).
In I.avado, the defendant was tried for armed robbery, a specific intent crime. Voluntary
intoxication was the defense. During voir dire, defense counsel sought the jurors' understanding and
bias against this defense. He was foreclosed fiom so doing by the trial court. The Supreme Court
held that restriction of defense counseh inquiry into the prospective jurors' "willingness and ability
to accept the defense" deprived the defendant of his right to a fair and impartial jury. 492 So. 2d at
1323. The high court adopted the dissent of the lower court which recognized that the most important
information for defense counsel to learn during voir dire is the panel's attitude and bias toward his
defense. 469 So. 2d at 917, approved, 492 So. 2d at 1323.
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The trial court's rulings impeded defense counsel's ability to determine if the jury understood
and could properly follow an instruction on excusable homicide which was integral to the reasonable
hypothesis of innocence put forth in the defense case. Lavado v. State, 492 So. 2d at 1323.
Appellant was entitled to this inquiry. & Pait v. State, 112 So. 2d at 383. The trial court's curtailing
of defense counsel's questioning prevented appellant fiom gathering the information necessary to a
proper exercise of his challenges. Moses v. State 535 So. 2d at 351. As a result, appellant was
deprived of his right to a fair and impartialjury so as to require reversal of his judgment and sentence
for a new trial. Lavado.
THE TRIAL COURT ERRED BY DENYING APPELLANT'S
MOTION FOR MISTRIAL WHERE THE LEAD INVESTIGATOR MADE A COMMENT ON SILENCE DURING HIS
TESTIMONY.
The Fifth and Fourteenth Amendments guarantee citizens the fundamental right to remain
silent in the face of accusation. Constitutional error occurs where a comment on a defendant's right
to remain silent is made during trial. State v. DiGuilio, 491 So. 2d 113 1 (Fla. 1986). A statement
is a comment on silence if it is "fairly susceptible" of such an interpretation. 491 So. 2d at 1139. The
fact that the comment "could be" be interpreted in another was is thus irrelevant; so long as one fair
interpretation is as a comment on silence, that is how the comment will be treated,
At bar, appellant's Fifth and Fourteenth Amendment right to remain silent was abridged.
During the prosecutor's redirect examination, the lead investigator made a statement which may be
interpreted as a comment on silence:
Q.
You also were asked, on cross examination, about when Mr.
Snyder said to you that he heard other people had been injured, and
you said that was much later. When did he say that to you?
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A.
After I went on tape, introduced myself, and --
And that’s when he said it, so that was after the initial meeting
Q.
with him?
A.
It was at that point but it was after he’s been read his
rights and told me he did not -
No
Q.
later?
A.
-- don’t tell me what he said, just tell me, did it come
Yes,ma’am.
(T-299-300). In response to defense counsel’s objection that the witness improperly commented on
silence. the court made inconsistent rulings which make it difficult to determine if the court found
that the remark was fairly susceptible of interpretation as a comment on silence. The court overmled
the objection yet offer curative instruction (T-300-301).
If the court had determined that the testimony was admissible evidence, there was no basis
to give a curative instruction. If the testimony was inadmissible, as appellant contends, the court
should have sustained the objection. In the face on the court’s contradictory rulings, defense counsel
moved for a mistrial. The motion was denied. (T-302). Error occurred. West v. State, 553 So. 2d
254 (Fla 4th DCA 1990), disapproved on other grounds, State v. Nordstrom, 6 13 So. 2d 437 (Fla.
1993) (statement fiom officer that defendant was “read the rights fiom the Miranda cards, at which
time the defendant advised he understood them and
-”
was susceptible to being interpreted as
comment on right to remain silent).
“Comments on a defendant’s right to silence are not harmless where the evidence against the
defendant is not ‘clearly conclusive’ (citation omitted).” Smith v. State,681 So. 2d 894,895 (Fla.
4th DCA 1996). Further, it is the state’s burden to establish that constitutional error is harmless
beyond a reasonable doubt. Goodwin v. State, 23 Fla. L. Weekly D 918 (Fla. 4th DCA April 8,
-
47-
--
1998). Incorporating the analysis of the circumstantial evidence set forth in Point I, supra, the proof
of guilt was not clearly conclusive and the state cannot sustain its burden. Thw, appellant is entitled
to a new trial.
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. ..
r
CONCLUSION
Based on the foregoing arguments and authorities cited therein, appellant respectfully
requests this Court to reverse and remand with proper directions.
Respectfully Submitted,
RICHARD L. JORANDBY
Public Defender
15th Judicial Circuit
Assistant Public Defender
Attorney for Mark Snyder
Criminal Justice Building
421 Third Street, 6th Floor
West Palm Beach, Florida 33401
(407) 355-7600
Florida Bar No. 332161
I HEREBY CERTIFY that a true copy hereof has been fiunished by courier, to CELIA
TERENZIO, Assistant Attorney General, 1655 Palm Beach Lakes Boulevard, Third Floor, West
Palm Beach, Florida 33401, this 3rd day of DECEMBER, 1998.
CY K. ALLEN
&
L
&
.
Assistant Public Defender
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