 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Ackerman v. State6/22/1999
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED
An appeal from the Circuit Court for Escambia County. Dedee Costello, Judge.
Kenneth J. Ackerman appeals his conviction for "DUI Manslaughter-Leaving the Scene" in violation of section 316.193(3)(c)3.b., Florida Statutes (1997). He contends that the evidence was insufficient, and that the trial court erred in instructing the jury that it could convict of only one lesser-included offense, and further erred in denying his motion for new trial on grounds that access to a Bible tainted the jury's verdict. He also attacks his sentence on grounds his scoresheet was improperly calculated. We affirm.
I.
At about two o'clock on the morning of June 7, 1997, after visits to the Beef & Ale and Banana Bob's, Mr. Ackerman hit Chad Cowen, a pedestrian, killing him. There were no skid marks at the scene of the accident. According to the state's accident reconstructionist, Mr. Cowen was headed east on foot and was in a northbound lane of Ninth Street in Pensacola, about four feet from the eastern edge of the roadway at the time of impact.
When the car struck him, Mr. Cowen landed on the hood, his head striking the bottom of the windshield with sufficient force to crack it. The collision caused substantial additional damage to the front of the car. A person nearby awoke at the sound of the impact, which he described as a loud noise. But Mr. Ackerman testified that all he heard was a sound like "a thud, a dull thud" and that he never saw Mr. Cowen. That is why, he testified, he did not stop to render aid or give information.
When he reached home, however, he telephoned his brother and told him that he might have had an accident. His brother drove to the scene of the accident and saw several police cars, left, picked Mr. Ackerman up, and returned with him to the scene. As a passenger in his brother's car, Mr. Ackerman arrived some thirty-five to forty-five minutes after the accident occurred.
Believing he might be intoxicated, investigating officers took Mr. Ackerman to a hospital so that blood and urine samples could be collected. Tests done on blood drawn at about 4:35 on the morning of the accident indicated a blood alcohol level of .16 percent, twice the legal limit. Mr. Ackerman attributed this to a glass of scotch whiskey he said he drank when he got home after the accident. But a forensic toxicologist testified that, even if Mr. Ackerman drank three shots of whiskey after the accident, his blood alcohol level at the time of the accident was no less than .10 percent and might have been as high as .17 percent.
II.
The evidence sufficed to prove Mr. Ackerman guilty of manslaughter while driving under the influence of alcohol and of failing to stop to render aid and give information. See Tibbs v. State, 397 So. 2d 1120, 1123 (Fla. 1981) ("As a general proposition, an appellate court should not retry a case or reweigh conflicting evidence submitted to a jury or other trier of fact. Rather, the concern on appeal must be whether, after all conflicts in the evidence and all reasonable inferences therefrom have been resolved in favor of the verdict on appeal, there is substantial, competent evidence to support the verdict and judgment." (footnote omitted)), affirmed, 457 U.S. 31 (1982); Barton v. State, 704 So. 2d 569, 571 (Fla. 1st DCA 1997).
The state put on evidence from which the jury could have concluded that the manner in which Mr. Ackerman operated his vehicle--notably failing to brake for a pedestrian in the roadway--amounted to negligence which caused or contributed to the cause of Mr. Cowen's death
Page 1 2 3 4 Florida DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|