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Vedner v. State7/25/2003
ON MOTION FOR REHEARING
We grant appellee's motion for rehearing, withdraw our previous opinion and substitute the following therefor.
Donald Vedner, Jr., appeals from the judgment and sentence imposed on him after he was convicted by a jury of DUI manslaughter, vehicular homicide, driving under the influence causing damage or injury, and possession of drug paraphernalia, all of which arose out of an automobile collision in which his passenger was killed. His appeal causes us to compare and examine the tension governing statements made to law enforcement officers who are conducting accident investigations, and statements that are subject to the protection of the Fifth Amendment to the United States Constitution. Mr. Vedner gave three interviews to law enforcement officers, all of which were admitted into evidence. While we conclude that it was error to admit one of them, we affirm the judgment and sentence because we deem the error harmless.
ADJUDICATIVE FACTS
In the pre-dawn hours on the date of the accident, Mr. Vedner crashed into the back of a van driven by Mr. Martinez, who was driving in the eastbound lane of I-4 at the time. Traffic had slowed because of highway construction, and Mr. Martinez reduced his speed to between 25 and 30 miles per hour. At that point in time, Mr. Vedner, who had been traveling at between 50 and 106 miles per hour, according to the varied testimony at trial, ran into the back of Mr. Martinez' van. Mr. Vedner was thrown from the car, and Mr. Vedner's passenger and best friend, Joshua Daly, died of massive head injuries.
A westbound witness to the accident who saw Mr. Vedner thrown from the car testified that he pulled over, approached Mr. Vedner, and smelled alcohol on him. A second witness and a police officer both testified that they also smelled an odor of alcohol coming from Mr. Vedner's facial area.
A traffic homicide investigator, Lake Mary Police Officer Drummond, responded to the accident scene and immediately saw blood on Mr. Vedner's face from various head injuries. While Officer Drummond smelled alcohol on Mr. Vedner, no blood sample was drawn at that time. Later, however, urine and blood samples were taken from Mr. Vedner at the hospital. When Officer Drummond collected Mr. Vedner's clothing which had been cut off at the scene, he found a pipe containing residue that the officer believed smelled like burnt marijuana inside one of Mr. Vedner's pants pockets.
Law enforcement officers spoke to Mr. Vedner on three occasions prior to his being charged criminally. The first interview was conducted by Officer Drummond on the day after the accident. Before the interview started Officer Drummond read Mr. Vedner his Miranda rights, and Mr. Vedner agreed to waive them. Mr. Vedner reported at that time that he had come from an establishment in Orange County called the "Ale House" at about 1:30 in the morning, where he consumed two and one-half beers. The interview continued:
Vedner: Yeah. And uh from there I got in the car and I don't, I don't know if it's from getting hit in the head or what but I know for a fact that I was too drunk at the Ale House to remember what we did after that, I know it wasn't - .
Officer Thomson: You don't remember where you went after the Ale House or where you were going on I-4?
Vedner: Uh, no.
Five days later, Mr. Vedner and his mother went to the Lake Mary Police Department to retrieve his personal property after being invited to do so by law enforcement officers. While there, he agreed to be interviewed a second time. Mr. Vedner was advised that he was not under arrest, that the officers had no inten
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