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Servis v. State10/10/2003
Dennis Wayne Servis appeals his conviction for DUI manslaughter. Because of the cumulative effect of the prosecutor's improper comments during closing arguments, we conclude that Servis was denied a fair trial and reverse.
Servis was charged with DUI manslaughter after he was involved in an automobile collision which resulted in the death of Anthony Foster. The case was originally tried on 31 August 2000, and Servis was convicted. The case was appealed to this court, and this court reversed and remanded the case for a new trial. See Servis v. State, 802 So. 2d 359 (Fla. 5th DCA 2001).
At the second trial, there was testimony that on the day of the accident, Servis ran a stop light in his truck, and that as a result of the ensuing collision, Servis's truck hit a motorcycle driven by Foster and a vehicle driven by Charles Kauffman. Upon impact, Kauffman's vehicle became airborne and overturned in the median. Foster was thrown from his motorcycle and landed in the road. Witnesses testified that Servis appeared distraught and concerned. An eyewitness to the accident, Jimmy Crabtree, testified that Servis's speech was not slurred and that he did not smell alcohol on Servis's breath.
Traffic homicide investigator Leroy Alfred testified that after an investigation of the accident, he concluded that Servis looked down for some papers as he approached the intersection and struck the passenger side of Kauffman's vehicle. At the same time, Foster's motorcycle struck the passenger side of Servis's vehicle. Alfred testified that there was no indication that Servis applied his brakes before the crash. After being advised of his Miranda rights by Alfred, Servis admitted that he drank beer during his lunch, and stated that he was sorry for killing Foster. Alfred testified that Servis's eyes were watery, glassy, and red, that Servis's speech was slurred, and that he smelled of alcohol. Alfred obtained a blood sample from Servis after Servis consented, but Servis was allowed to leave the scene of the accident without a field sobriety or breathalyzer test and was not arrested that day.
FDLE crime lab analyst Dennis Siewert testified that an analysis of Servis's blood sample indicated that Servis had a blood alcohol level of .119. Medical examiner Dr. Sarah Irrgang testified that a blood alcohol level of .119 would cause a decrease in coordination and would affect one's ability to drive.
Wayne Morris testified as an expert on behalf of Servis. Morris testified that his review of Siewart's FDLE file on Servis's blood analysis indicated that there was cross contamination among the various blood samples. Morris also testified that based on the food Servis ate, the amount he drank, and the times of consumption, Servis's blood alcohol level at the time of the accident would have been between zero and .038.
To rebut Morris's testimony, the state recalled Dennis Siewart who testified that he did not agree with Morris's testimony that the blood samples were contaminated because if one sample were contaminated, they all would have been contaminated.
On appeal, Servis argues that the state's closing arguments were improper and denied him a fair trial. We agree. Because Servis did not object to some of the comments about which he appeals, and because other objections were general, we must determine whether the comments were so prejudicial as to constitute fundamental error. Freeman v. State, 717 So. 2d 105 (Fla. 5th DCA 1998); Caraballo v. State, 762 So. 2d 542, 548, n. 18 (Fla. 5th DCA 2000). "Fundamental error in closing arguments occurs when the prejudicial conduct in its collective import is so extensive that its influence pervades the trial, grave
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