 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Cardenas v. State5/7/2002
Appellant challenges his various convictions and sentences arising out of a collision between his fishing boat and a commercial barge which resulted in the deaths of two people and serious injury to his son. We affirm appellant's convictions and sentences as orally pronounced at sentencing and strike those portions of the written judgment which are inconsistent with the trial court's oral pronouncement. We also certify a question of great public importance as to whether the giving of the presumption of impairment instruction constituted fundamental error. A number of issues are raised on appeal, only three of which require any discussion.
Appellant argues on appeal that the trial court abused its discretion by refusing to allow him to cross-examine Lieutenant Harry "Buddy" Gomez regarding the delay in arresting and charging appellant in connection with the accident. We affirm as to this issue because, contrary to appellate counsel's assertions at oral argument, appellant never proffered the substance of the proposed cross-examination of this witness to the trial court. A proffer of excluded testimony is necessary to preserve a claim that the testimony was erroneously excluded. See Lucas v. State, 568 So. 2d 18, 22 (Fla. 1990); see also Finney v. State, 660 So. 2d 674, 684 (Fla. 1995)(holding that challenge to trial court's refusal to allow certain cross-examination by defense of state witness had not been properly preserved for appellate review because defendant "never proffered the testimony he sought to elicit from the witness and the substance of that testimony is not apparent from the record"). We note that the trial court did allow defense counsel to cross-examine Lieutenant Gomez concerning his alleged bias against appellant as well as his failure to immediately report to the lead investigating officer on the case appellant's alleged admissions, on the night of the accident, as to who had been driving the boat at the time of the collision.
Appellant also argues on appeal that the trial court erred in giving the standard impairment presumption jury instruction in this case in light of the supreme court's decision in State v. Miles, 775 So. 2d 950 (Fla. 2000). We affirm as to this issue because appellant never presented to the trial court the Miles argument he now asserts on appeal, and the giving of the challenged instruction did not rise to the level of fundamental error.
During the first of several discussions on jury instructions held in this case, the prosecutor indicated that he wanted the impairment presumption instruction given. Defense counsel responded that his only concern at that time was that it be made clear to the jury that they could not convict appellant based solely on the evidence that he had been drinking and driving the boat at various points during the day before the accident. The prosecutor agreed that he would make it clear that the jury should not convict simply because there had been evidence that appellant had been drinking and driving the boat prior to the accident, and the trial court indicated that it would be made clear to the jury that such evidence was only relevant in terms of the reasonable inferences that could be drawn from it concerning who had been driving the boat at the time of the accident.
When the parties and the trial court resumed their discussion about jury instructions later in the proceedings, defense counsel stated, "For the record, so it doesn't appear there's a waiver, I'm going to object to the presumption instruction." Defense counsel did not, however, argue any grounds for his objection to the trial court. The trial court overruled the objection and moved on.
After the parties had made their clo
Page 1 2 3 4 5 6 Florida DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|