39 Fla. L. Weekly D794a
Criminal law — Felony driving under influence — Evidence —
Statements of defendant — Accident report privilege — Officer’s testimony that
defendant stated he was driver of crashed vehicle was inadmissible in light of
accident report privilege — Error in allowing testimony not harmless, although
state introduced other evidence from which defendant’s guilt could have been
inferred, where statement was the only direct evidence that defendant was driver
of vehicle
Statements of defendant — Accident report privilege — Officer’s testimony that
defendant stated he was driver of crashed vehicle was inadmissible in light of
accident report privilege — Error in allowing testimony not harmless, although
state introduced other evidence from which defendant’s guilt could have been
inferred, where statement was the only direct evidence that defendant was driver
of vehicle
KENNETH ELLIS WETHERINGTON, Appellant, v. STATE OF FLORIDA, Appellee. 1st
District. Case No. 1D13-1327. Opinion filed April 16, 2014. An appeal from the
Circuit Court for Alachua County. Stanley H. Griffis, III, Judge. Counsel: Emily
A. Snider and Nick G. Zissimopulos, Gainesville, for Appellant. Pamela Jo Bondi,
Attorney General, and Wesley Paxon III, Assistant Attorney General, Tallahassee,
for Appellee.
District. Case No. 1D13-1327. Opinion filed April 16, 2014. An appeal from the
Circuit Court for Alachua County. Stanley H. Griffis, III, Judge. Counsel: Emily
A. Snider and Nick G. Zissimopulos, Gainesville, for Appellant. Pamela Jo Bondi,
Attorney General, and Wesley Paxon III, Assistant Attorney General, Tallahassee,
for Appellee.
(VAN NORTWICK, Judge.) Kenneth Ellis Wetherington appeals his judgment and
sentence for felony driving under the influence (DUI) following his bifurcated
jury trial. Wetherington raises six issues on appeal. As correctly conceded by
the State, the testimony of a police officer concerning statements made by
Wetherington was erroneously admitted into evidence in contravention of the
accident report privilege. Contrary to the argument of the State, we cannot find
the error harmless beyond a reasonable doubt. Accordingly, we reverse and remand
for a new trial. We affirm without comment the other issues raised on appeal.
sentence for felony driving under the influence (DUI) following his bifurcated
jury trial. Wetherington raises six issues on appeal. As correctly conceded by
the State, the testimony of a police officer concerning statements made by
Wetherington was erroneously admitted into evidence in contravention of the
accident report privilege. Contrary to the argument of the State, we cannot find
the error harmless beyond a reasonable doubt. Accordingly, we reverse and remand
for a new trial. We affirm without comment the other issues raised on appeal.
Wetherington was charged with felony driving under the influence based on his
involvement in a single vehicle accident in which a vehicle occupied by him and
his fiancée, Mitra Snyder, crashed onto a culvert in a ditch shortly after
leaving the premises of the Eagle’s Landing, an establishment known to serve
alcohol. At trial, the State presented the testimony of Ernest Aviles, who
testified that he was driving home on the evening in question when he noticed a
set of vehicle headlights approximately 1,000 feet away swerving and making a
motion in a manner consistent with being involved in an impact. Aviles testified
that it took him ten to fifteen seconds to drive close enough to the vehicle so
that he could see the occupants, and that upon reaching the vehicle he saw
Wetherington in the driver’s seat and Snyder in the passenger seat.
involvement in a single vehicle accident in which a vehicle occupied by him and
his fiancée, Mitra Snyder, crashed onto a culvert in a ditch shortly after
leaving the premises of the Eagle’s Landing, an establishment known to serve
alcohol. At trial, the State presented the testimony of Ernest Aviles, who
testified that he was driving home on the evening in question when he noticed a
set of vehicle headlights approximately 1,000 feet away swerving and making a
motion in a manner consistent with being involved in an impact. Aviles testified
that it took him ten to fifteen seconds to drive close enough to the vehicle so
that he could see the occupants, and that upon reaching the vehicle he saw
Wetherington in the driver’s seat and Snyder in the passenger seat.
The State also presented Sergeant Scott Ulrich, Alachua County Sheriff’s
Office, who testified that he spoke with Wetherington in the course of
investigating the traffic accident, and that Wetherington identified himself as
the driver of the crashed vehicle. Defense counsel objected that this testimony
was inadmissible pursuant to the accident report privilege; the trial court
overruled the objection. Additionally, the State entered in evidence and
published to the jury a recording of a telephone call Wetherington made while in
jail subsequent to his arrest. From the court reporter’s transcription of the
call as played for the jury, it is difficult to identify exactly who was
speaking during certain portions of the call. Nevertheless, it appears that at
one point Wetherington stated “Oh, my God. I might have just f—— ruined my
life, man,” and also expressed concern about the impact the news of his arrest
would have on his family. The State contended that Wetherington’s statements on
the jail phone calls were evidence of his consciousness of guilt for the charged
offense.
Office, who testified that he spoke with Wetherington in the course of
investigating the traffic accident, and that Wetherington identified himself as
the driver of the crashed vehicle. Defense counsel objected that this testimony
was inadmissible pursuant to the accident report privilege; the trial court
overruled the objection. Additionally, the State entered in evidence and
published to the jury a recording of a telephone call Wetherington made while in
jail subsequent to his arrest. From the court reporter’s transcription of the
call as played for the jury, it is difficult to identify exactly who was
speaking during certain portions of the call. Nevertheless, it appears that at
one point Wetherington stated “Oh, my God. I might have just f—— ruined my
life, man,” and also expressed concern about the impact the news of his arrest
would have on his family. The State contended that Wetherington’s statements on
the jail phone calls were evidence of his consciousness of guilt for the charged
offense.
During its case-in-chief, Wetherington called Snyder, who testified that she
was driving the vehicle when it crashed into the culvert and that she and
Wetherington switched positions inside the vehicle so that Wetherington could
attempt to restart it. Snyder stated that, following the unsuccessful attempts
to crank the vehicle, she and Wetherington proceeded to walk back to the Eagle’s
Landing parking lot to obtain better cellphone reception and call a tow truck.
was driving the vehicle when it crashed into the culvert and that she and
Wetherington switched positions inside the vehicle so that Wetherington could
attempt to restart it. Snyder stated that, following the unsuccessful attempts
to crank the vehicle, she and Wetherington proceeded to walk back to the Eagle’s
Landing parking lot to obtain better cellphone reception and call a tow truck.
The jury returned a verdict of guilty of DUI in the first phase of the trial,
and, based on Wetherington’s two prior DUI convictions, found him guilty of
felony DUI following the second phase of the trial. The trial court imposed a
sentence of thirty-six months’ imprisonment, followed by two years’ probation.
This appeal ensued.
and, based on Wetherington’s two prior DUI convictions, found him guilty of
felony DUI following the second phase of the trial. The trial court imposed a
sentence of thirty-six months’ imprisonment, followed by two years’ probation.
This appeal ensued.
In Florida, the accident report privilege is a creature of statute. Under
Florida law:
Florida law:
[E]ach crash report made by a person involved in a crash and any
statement made by such person to a law enforcement officer for the purpose of
completing a crash report required by this section shall be without prejudice to
the individual so reporting. Such report or statement may not be used as
evidence in any trial, civil or criminal.
§ 316.066(4), Fla. Stat. (2012);1
see Vedner v. State, 849 So. 2d 1207, 1212 (Fla. 5th DCA 2003)
(“[S]tatements made pursuant to the requirement to give information for a crash
report required by section 316.066 may not be used as evidence in civil,
criminal or administrative proceedings.”). As Professor Ehrhardt explains:
see Vedner v. State, 849 So. 2d 1207, 1212 (Fla. 5th DCA 2003)
(“[S]tatements made pursuant to the requirement to give information for a crash
report required by section 316.066 may not be used as evidence in civil,
criminal or administrative proceedings.”). As Professor Ehrhardt explains:
The purpose of the accident report privilege is to encourage people
to make an accurate report of the circumstances surrounding an accident so that
the state can use the information to make the highways safer. The legislature
has made the decision that in both criminal and civil actions, it is better that
statements made by a defendant not be introduced before the jury than to
restrict the goal of safer highways for society. Section 316.066 compels a
report when there is total apparent damage of at least five hundred dollars or
if a person dies or suffers bodily injury or death. The Florida legislature has
recognized the constitutional mandate against self-incrimination and immunized
the report and any accompanying statements from use against the person making
them.
Charles W. Ehrhardt, Florida Evidence § 501.2 (West 2012 ed.).
On appeal, the State conceded that Sergeant Ulrich’s testimony that
Wetherington stated he was the driver of the crashed vehicle was inadmissible in
light of the accident report privilege. The State maintains, however, that the
error in admitting evidence of Wetherington’s statement was harmless beyond a
reasonable doubt because evidence that he was the driver was introduced through
the recorded jail telephone calls, which were admitted independently of his
erroneously admitted statement to Sergeant Ulrich. The State further contends
that Aviles’ testimony was valid, direct evidence that Wetherington was the
driver of the vehicle. We cannot agree.
Wetherington stated he was the driver of the crashed vehicle was inadmissible in
light of the accident report privilege. The State maintains, however, that the
error in admitting evidence of Wetherington’s statement was harmless beyond a
reasonable doubt because evidence that he was the driver was introduced through
the recorded jail telephone calls, which were admitted independently of his
erroneously admitted statement to Sergeant Ulrich. The State further contends
that Aviles’ testimony was valid, direct evidence that Wetherington was the
driver of the vehicle. We cannot agree.
The harmless error analysis is well-recognized: “[i]f the appellate court
cannot say beyond a reasonable doubt that the error did not affect the verdict,
then the error is by definition harmful. Critically, the test is not whether
there is other evidence, or even overwhelming evidence, of guilt.” Gregory v.
State, 118 So. 3d 770, 782 (Fla. 2013) (citations omitted).
cannot say beyond a reasonable doubt that the error did not affect the verdict,
then the error is by definition harmful. Critically, the test is not whether
there is other evidence, or even overwhelming evidence, of guilt.” Gregory v.
State, 118 So. 3d 770, 782 (Fla. 2013) (citations omitted).
The record here reflects that the only direct evidence that Wetherington was
the driver of the vehicle is the statement he gave to Sergeant Ulrich during the
accident investigation. Although Aviles testified that he saw the vehicle swerve
and come to a stop, that he never lost sight of the vehicle, and that he saw
Wetherington in the driver’s seat of the crashed vehicle, Aviles conceded that
he could not tell anything about the occupants of the vehicle until he drove up
to it, which was approximately ten to fifteen seconds from the time he saw it
crash. Because one must infer that Wetherington was driving based on Aviles’
having seen him in the driver’s seat after the crash, Aviles’ testimony is not
direct evidence that Wetherington was in control of the vehicle when it crashed.
the driver of the vehicle is the statement he gave to Sergeant Ulrich during the
accident investigation. Although Aviles testified that he saw the vehicle swerve
and come to a stop, that he never lost sight of the vehicle, and that he saw
Wetherington in the driver’s seat of the crashed vehicle, Aviles conceded that
he could not tell anything about the occupants of the vehicle until he drove up
to it, which was approximately ten to fifteen seconds from the time he saw it
crash. Because one must infer that Wetherington was driving based on Aviles’
having seen him in the driver’s seat after the crash, Aviles’ testimony is not
direct evidence that Wetherington was in control of the vehicle when it crashed.
Moreover, while the jail phone call could be interpreted as evidence of
consciousness of guilt on Wetherington’s part, the recording is also susceptible
of other interpretations. For example, at one point someone, it is not clear who
based on the transcript, said the charges were not true. In any event,
Wetherington does not state during the recording that he was the driver.
consciousness of guilt on Wetherington’s part, the recording is also susceptible
of other interpretations. For example, at one point someone, it is not clear who
based on the transcript, said the charges were not true. In any event,
Wetherington does not state during the recording that he was the driver.
Even if these phone calls are evidence of Wetherington’s guilt, the law is
clear that the existence of other evidence of guilt, even when that other
evidence is overwhelming, is not determinative in a harmless error analysis.
Gregory, 118 So. 3d at 782. Had Wetherington’s statement to Sergeant
Ulrich been properly excluded, it is quite possible that the jury could have
still found him guilty based on the other evidence, including Aviles’ and the
law enforcement officers’ testimony, as well as the phone call recording from
the jail, which the jury could reasonably have interpreted as evidence of
consciousness of guilt, as suggested by the State. However, one would be
hard-pressed to conclude beyond a reasonable doubt that Wetherington’s
erroneously admitted statement that he was driving the vehicle did not affect
the verdict in this case, especially when that is the only direct evidence that
he was the driver.
clear that the existence of other evidence of guilt, even when that other
evidence is overwhelming, is not determinative in a harmless error analysis.
Gregory, 118 So. 3d at 782. Had Wetherington’s statement to Sergeant
Ulrich been properly excluded, it is quite possible that the jury could have
still found him guilty based on the other evidence, including Aviles’ and the
law enforcement officers’ testimony, as well as the phone call recording from
the jail, which the jury could reasonably have interpreted as evidence of
consciousness of guilt, as suggested by the State. However, one would be
hard-pressed to conclude beyond a reasonable doubt that Wetherington’s
erroneously admitted statement that he was driving the vehicle did not affect
the verdict in this case, especially when that is the only direct evidence that
he was the driver.
Accordingly, because the State has failed to establish that the erroneous
admission of Wetherington’s privileged statement was harmless, we REVERSE and
REMAND for a new trial. (THOMAS, J., and NORTON, VIRGINIA B., ASSOCIATE JUDGE,
CONCUR.)
admission of Wetherington’s privileged statement was harmless, we REVERSE and
REMAND for a new trial. (THOMAS, J., and NORTON, VIRGINIA B., ASSOCIATE JUDGE,
CONCUR.)
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1The accident report privilege is “fully
operative, unless the statement made by the reporting person during the accident
investigation is made after a waiver of Miranda rights or is otherwise
not protected by the privilege against self-incrimination.” State v.
Marshall, 695 So. 2d 719, 722 (Fla. 3d DCA 1996), aff’d, 695 So. 2d
686 (Fla. 1997). The record here does not indicate that Wetherington waived his
Miranda rights.
operative, unless the statement made by the reporting person during the accident
investigation is made after a waiver of Miranda rights or is otherwise
not protected by the privilege against self-incrimination.” State v.
Marshall, 695 So. 2d 719, 722 (Fla. 3d DCA 1996), aff’d, 695 So. 2d
686 (Fla. 1997). The record here does not indicate that Wetherington waived his
Miranda rights.
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