Third District Court of Appeal State of Florida
Opinion filed February 16, 2022. Not final until disposition of timely filed motion for rehearing.
________________
No. 3D19-1690 Lower Tribunal No. F17-7072 ________________
Jonathan Matthew Aledda, Appellant,
vs.
The State of Florida, Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Alan Fine, Judge.
Schwartzreich & Associates, and Eric T. Schwartzreich (Fort Lauderdale); Bruno & Schoenthal PA, and Anthony J. Bruno II (Fort Lauderdale), for appellant.
Ashley Moody, Attorney General, and Jennifer A. Davis, Assistant Attorney General, for appellee.
Before SCALES, HENDON and MILLER, JJ.
SCALES, J. Jonathan Matthew Aledda appeals his conviction for misdemeanor
culpable negligence. We reverse and remand for a new trial because the trial
court erred by refusing to allow Officer Aledda’s SWAT commander,
Assistant Police Chief Angel Rivera, to testify about the training Aledda
received as to SWAT (special weapons and tactics) policy and procedures
for a hostage rescue.
I. Facts
On the day of the incident, July 18, 2016, Aledda was a four-year
veteran of the City of North Miami, Florida, police department. He was a
certified SWAT officer. At approximately 5 p.m. on that day, Aledda
responded to a dispatch call about a man with a gun at the intersection of
NE 127th Street and 14th Avenue. Aledda was one of thirteen North Miami
police officers (ten at the scene, three on the perimeter) who responded to
the call. Sitting in that intersection was Arnaldo Rios-Soto, a man with severe
developmental disabilities. He had just run from his nearby group home
carrying a silver toy truck in his hand. His caretaker, Charles Kinsey, had
followed him to the intersection. Kinsey stood over Rios-Soto and directed
traffic around him.
The first two officers to arrive were Officers Crespo and Bernadeau.
They retrieved their rifles but kept their distance. Kinsey raised his hands in
2 the air and told the officers that Rios-Soto was holding a toy. Eventually, on
Officer Crespo’s command, Kinsey joined Rios-Soto on the ground where
Kinsey alternately sat up and lay prone. Throughout, Rios-Soto rocked back
and forth and played with the toy truck.
Additional officers arrived, including Aledda, and took up positions in
various locations around the scene. Each officer testified at trial about what
he or she saw. They described their different perceptions, from different
distances and angles, of Rios-Soto and what Rios-Soto held in his hand.
Radio dispatches were not definitive as to whether Rios-Soto had a gun, and
there was testimony about intermittent radio malfunction.
When Aledda arrived at the scene, he took his assault rifle from the
trunk of his car and, asking other officers to “cover” him, maneuvered himself
to within 152 feet of Rios-Soto and Kinsey. The officer closest to Aledda,
Officer Warren, told Aledda that the object in Rios-Soto’s hand looked like a
gun but he was not certain. Over the radio, Aledda heard another officer,
Commander Hollant, say that it looked like Rios-Soto was loading a gun.
This comment confirmed Aledda’s own perception that Rios-Soto had a gun.
Aledda believed that he was observing a hostage situation, and that Rios-
Soto was armed with a gun and was holding Kinsey hostage.
3 Aledda advised dispatch that he had a clear shot and sought
supervisor advice as to whether to fire. Aledda did not receive a response to
his radio inquiry. In its sentencing order, the trial court summarized the radio
broadcasts this way: “Before Officer Aledda fired his rifle, the information
broadcast over the police radio was that there was a report of a gun, that it
looked like a gun, that it appeared as if Arnaldo Rios-Soto was loading his
weapon, that the other subject [Kinsey] said it was not a gun and from a
visual an officer [Bernadeau] said it did not appear to be a gun.” Officer
Bernadeau made this remark right after Aledda said he had a clear shot, but
Aledda apparently did not hear Bernadeau.
Aledda watched Rios-Soto’s rocking movements, his holding the
object in his hand, and his angry demeanor. He saw Rios-Soto raise the
object toward the closest officer, Crespo, then swing the object toward
Kinsey. Believing the object was a gun and Kinsey was in imminent danger
of being shot, Aledda fired three shots at Rios-Soto. He missed. One shot hit
Kinsey in the right hip. No other police officer fired a weapon.
II. Procedural History
The State charged Aledda with two felony counts of attempted
manslaughter with a deadly weapon, one misdemeanor count of culpable
negligence for inflicting injury upon Kinsey, and one misdemeanor count of
4 culpable negligence for endangering Rios-Soto. At a first trial in March 2019,
the jury acquitted Aledda of culpable negligence as to Rios-Soto, but could
not reach a verdict on the remaining counts, resulting in a hung jury and a
mistrial.
In June 2019, Aledda stood for a second trial on the three remaining
counts. During this second trial, Aledda sought to introduce testimony by
Assistant Police Chief Rivera as to Aledda’s SWAT training. Rivera had
trained Aledda. The State objected. The trial court requested a defense
proffer of the intended witness testimony. Aledda’s counsel provided the
following proffer: “There’re three criteria when firing in a hostage situation.
The police officer reasonably believes that the subject has a hostage. . . .
[T]he subject indicates through words or actions he may do harm to the
hostage. . . . [T]the officer has a reasonable belief that [the subject] has the
means and the ability to carry out the threat.” The trial court sustained the
State’s objection, concerned about possible jury confusion if presented with
a standard seemingly different from the one contained in the jury instructions
for the charged crimes.
Ultimately, the jury acquitted Aledda on the two attempted
manslaughter counts but convicted him of misdemeanor culpable negligence
5 as to Kinsey. The trial court sentenced Aledda to one year of probation (with
special conditions). This appeal timely followed.
III. Analysis
While Aledda makes several arguments on appeal, we find that one –
the trial court’s refusal to allow Rivera to testify as to Aledda’s SWAT training
regarding hostage procedures – has merit and requires us to reverse
Aledda’s conviction for the crime of culpable negligence.
A. The crime of “culpable negligence”
Our analysis begins with dissecting the culpable negligence charge at
issue. Section 784.05(2) of the Florida Statutes (2016) provides, in relevant
part, as follows: “Whoever, through culpable negligence, inflicts actual
personal injury on another commits a misdemeanor of the first
degree.” While the term “culpable negligence” is not statutorily defined,
Florida’s standard criminal jury instruction 8.9, which was given to the jury,
provides the following definition of “culpable negligence”:
I will now define “culpable negligence” for you. Each of us has a duty to act reasonably toward others. If there is a violation of that duty, without any conscious intention to harm, that violation is negligence. But culpable negligence is more than a failure to use ordinary care for others. In order for negligence to be culpable, it must be gross and flagrant. Culpable negligence is a course of conduct showing reckless disregard for human life, or for the safety of persons exposed to its dangerous effects, or such an entire want of care as to raise a presumption of a conscious indifference to consequences, or which shows wantonness or
6 recklessness, or a grossly careless disregard for the safety and welfare of the public, or shows such an indifference to the rights of others as is equivalent to an intentional violation of such rights.
There is no uniform schedule of specific acts that constitute culpable
negligence. Rather, “[c]ulpable negligence is the omission to do something
which a reasonable, prudent and cautious man would do, or the doing of
something which such a man would not do under the circumstances
surrounding the particular case.” Russ v. State, 191 So. 296, 298 (Fla. 1939)
(emphasis added). While, at first blush, Russ’s culpable negligence definition
may look somewhat similar to the textbook tort definition of “negligence,” the
degree of negligence required to sustain a conviction for the crime of
culpable negligence is significantly higher than that necessary to sustain a
recovery of compensatory damages in a tort case. State v. Greene, 348 So.
2d 3, 4 (Fla. 1977). Indeed, as Russ instructs, a culpably negligent defendant
must have engaged in a degree of negligence “at least as high as that
required for the imposition of punitive damages in a civil action.” Russ, 191
So. at 298. Therefore, to sustain a conviction for the crime of culpable
negligence, the State must establish that the defendant acted with “a gross
and flagrant character, evincing reckless disregard for human life” or an
“entire want of care which would raise the presumption of indifference to
consequences; or such wantonness or recklessness or grossly careless
7 disregard of the safety and welfare of the public, or that reckless indifference
to the rights of others, which is equivalent to an intentional violation of them.”
Id. As Russ also instructs, though, the defendant’s conduct is not viewed in
a vacuum, but rather, through the prism of “the circumstances surrounding
the particular case.” Id.
In practical terms, when prosecuting a criminal culpable negligence
case, the State generally presents evidence of the defendant’s conduct and
the jury, drawing from its collective experience, decides whether such
conduct warrants a criminal conviction. See Pitts v. State, 473 So. 2d 1370,
1372 (Fla. 1st DCA 1985) (“The dividing line between the lack of care
required for proof of vehicular homicide by reckless operation of a motor
vehicle . . . and careless driving . . . is obviously hard to draw . . . . [W]e hold
that the assessment of the defendant’s actions was properly left to the
jury.”). We agree with the State that, when asked to determine whether a
defendant’s conduct constitutes criminal culpable negligence, the jury
employs an objective, rather than a subjective, standard, i.e., the jury must
decide what a reasonable person would do “under the circumstances
surrounding the particular case.” Russ, 191 So. at 298. In many culpable
negligence cases, a jury is able to determine what a reasonable person
would do because the circumstances surrounding the case are not so foreign
8 to it as to warrant the introduction of evidence regarding how a defendant is
trained to respond to particular circumstances. Indeed, almost by definition,
many culpable negligence cases – where the State must prove that the lay
defendant acted with a wanton or reckless disregard for the public – do not
involve a trained professional charged with failing to exercise that degree of
skill, care or judgment as is ordinary and reasonable for one engaged in the
given profession. Here, though, such a scenario is presented. The training
undertaken by the professional would be relevant for the jury to consider in
determining how and why the professional assessed and responded to the
situation, and whether, under the circumstances surrounding the particular
case, such assessment and response was objectively reasonable.
B. The culpable negligence charge against Aledda and Aledda’s theory of defense
In this case, Aledda, within the course and scope of his employment
as a police officer, was called to a scene of presumed criminal activity. The
State alleged that Aledda’s assessment of the circumstances, and his
response thereto, constituted such recklessness as to inculpate Aledda.
Aledda asserts that his assessment of, and response to, those
circumstances were dictated by his specific training. This, however, is not a
commonplace culpable negligence case. There was no contention that
9 Aledda was acting outside the scope of his employment as a law
enforcement officer. Instead, the State alleged that Aledda’s action in firing
his weapon grossly departed from what was ordinary and reasonable for a
law enforcement officer confronting such circumstances. While a jury may
rely generally upon its collective experience in assessing the
reasonableness of a defendant’s conduct, in this instance, Aledda
contended that the degree of skill, care, judgment, and training he was
required to exercise could not easily be measured by laypersons. Indeed,
Aledda’s theory of defense was that his assessment of the situation, and his
resulting actions, were based upon and consistent with his training as a
SWAT officer, and that he was acting to protect, rather than to evince a
reckless disregard for, human life.
While the State was allowed to present evidence as to how other
officers on the scene responded to the situation, and how “shocked” those
officers were that Aledda fired his weapon, the trial court’s challenged
evidentiary ruling precluded Aledda from presenting a key ingredient of his
defense. Under the facts and circumstances of this case, we conclude that
precluding Rivera’s testimony constituted reversible error, and that Aledda
should be afforded a new trial. Sluyter v. State, 941 So. 2d 1178, 1180 (Fla.
2d DCA 2006) (“A party is entitled to present evidence upon the facts that
10 are relevant to his theory of the case, so long as that theory has support in
the law.” (quoting Zamora v. State, 361 So. 2d 776, 779 (Fla. 3d DCA
1978))).
C. Distinguishing Pitts and Lozano
The State argues that two cases – Pitts v. State, 473 So. 2d 1370 (Fla.
1st DCA 1985) and Lozano v. State, 584 So. 2d 19 (Fla. 3d DCA 1991) –
compel affirmance. From the record, it appears that the trial court, at least in
part, premised its challenged evidentiary ruling on these cases. While both
of these cases involve an on-duty police officer being criminally charged for
the officer’s conduct in the line of duty, both cases are dispositively
distinguishable from our case.
1. The Pitts case
In Pitts, an Alachua County sheriff’s deputy (Carl Michael Pitts)
responded to a fellow officer’s request for backup at the scene of a possible
burglary. On his way there, Pitts failed to inform dispatch that he was
traveling to the scene with his blue lights and siren on. As Pitts approached
the scene, he turned off the siren so as not to call attention to his arrival. As
he passed a car in a no-passing zone, Pitts collided with an oncoming car
and killed its driver. Pitts, 473 So. 2d at 1372. Pitts was charged with
vehicular homicide. At his trial, the State was permitted, over objection, to
11 introduce excerpts from a Sheriff’s Office manual that required a police
officer to notify dispatch, as Pitts had failed to do, if an officer was responding
with his blue lights and siren on. Id. at 1373.
The First District reversed Pitts’s conviction, concluding that the trial
court erred in allowing the State to introduce excerpts from the departmental
manual. Id. at 1373-74. The Court opined that the excerpts lacked any
probative value for two reasons: (i) there was no evidence linking how the
officer’s failure to comply with the policy caused the accident; and (ii) the
excerpts “introduced a false standard in the measure of reckless driving.” Id.
at 1374. The Pitts court concluded that the excerpts were irrelevant to show
whether Pitts had violated the criminal statute with which Pitts had been
charged. Id.
2. The Lozano case
In Lozano, a City of Miami police officer (William Lozano) heard the
siren and saw the flashing emergency lights of an approaching police vehicle
in pursuit of a motorcycle for a traffic violation. Lozano shot and killed the
motorcycle operator, and the motorcycle passenger died in the resulting
crash. Lozano was charged with two counts of manslaughter. Lozano, 584
So. 2d at 20-21. At Lozano’s trial, the State was permitted, over objection, to
introduce testimony regarding police department policies that tended to
12 show Lozano’s actions were violative of such policies. Specifically, the
policies introduced to the jury imposed upon officers a duty to seek a place
of safety and retreat from danger and proscribed the use of a firearm against
a moving vehicle. Id. at 21, 24.
Citing Pitts, we reversed Lozano’s conviction, concluding somewhat
summarily that “the rule regarding the admissibility of custom in civil cases
is not applicable in a criminal case.” Id. at 24.
3. Distinguishing Pitts and Lozano
The Pitts and Lozano courts overturned convictions of police officers
who had been charged with vehicular homicide (Pitts) and manslaughter
(Lozano) for actions undertaken by the defendant officers while in the line of
duty. The trial courts in both cases had allowed the State to introduce policy
manuals to show that the officers’ conduct was violative of department
policies. In rather unremarkable holdings, the appellate courts concluded
that it was error to allow the State to introduce such evidence, because the
relevant inquiry in criminal cases is whether the State has proven a violation
of a statute, not whether a defendant has violated a custom or policy. Two
important factors, though, distinguish these cases from the instant case.
First, in this case, it was Aledda, and not the State, who proffered the
testimony. This is an important distinction because of the relative burdens of
13 the parties. The State’s burden in a criminal prosecution is to prove that the
defendant violated every element of the charged criminal statute. Dausch v.
State, 141 So. 3d 513, 517 (Fla. 2014). The Pitts court, and, to a lesser
extent, the Lozano court, concluded that introduction of excerpts from
department manuals confused the jury by suggesting the State had to meet
a different burden. Pitts, 473 So. 2d at 1373-74; Lozano, 584 So. 2d at 24
n.8, 9. Unlike in Pitts and Lozano – where the introduction of the policy
manuals’ excerpts allowed the jury to convict Pitts and Lozano criminally for
violation of the policies – Aledda sought to introduce Rivera’s testimony to
establish how Aledda was trained as a SWAT officer to assess and respond
to the situation presented in this case. This evidence certainly was relevant
to assist the jury in its determination of whether that assessment and
response by Aledda constituted a “course of conduct showing reckless
disregard for human life, or for the safety of persons exposed to its
dangerous effects, or such an entire want of care as to raise a presumption
of a conscious indifference to consequences.” Fla. Std. J. Inst. (Crim.) 8.9.
How Aledda was trained, and the extent to which his actions were
consistent with his training, directly relate to whether Aledda properly or
negligently responded to the circumstances with which he was confronted.
Such was not the case in Pitts, where the State established no nexus
14 between the policy provision introduced to the jury (a requirement that
dispatch be notified when responding to a call with lights and siren on) and
the crime for which Pitts was charged (vehicular homicide). While the
department policies introduced in Lozano might have had a greater nexus to
the crimes with which Lozano was charged, this Court was understandably
concerned that introduction of the policies might have allowed the jury to
convict Lozano for failure to follow department policies, rather than for
violation of the criminal statutes with which he was charged.
Aledda did not offer the testimony regarding his training to establish a
standard different from one created by the criminal statute; he offered the
testimony to show how he was trained to react to the precise situation with
which he was confronted. Thus, the introduction of Rivera’s testimony
regarding Aledda’s training would assist – rather than confuse – the jury in
determining whether Aledda’s response to the circumstances he
encountered was criminally negligent.
Second, the evidence sought to be introduced by Aledda is not the
same as the evidence excluded in Pitts and Lozano. The trial courts in both
Pitts and Lozano allowed the State to present testimony relating to specific
regulations contained in department manuals. Pitts, 473 So. 2d at 1373;
Lozano, 584 So. 2d at 24. The Pitts court characterized this evidence as “a
15 standard promulgated by some unknown person in the Sheriff’s Office.” Pitts,
473 So. 2d at 1374. Obviously, the defendants in Pitts and Lozano could not
cross-examine regulations contained in policy manuals. Aledda did not seek
to introduce regulations contained in a department manual. Rather, Aledda
sought to introduce live testimony of the SWAT commander who trained
Aledda on how to respond to the specific situation Aledda faced at the scene.
Rivera would have been subject to cross-examination, allowing the State to
clarify any issues arising from Aledda’s direct examination of Rivera and to
explore any biases relevant to Rivera’s testimony.
IV. Conclusion
We conclude that the trial court erred by not allowing Aledda – charged
by the State with culpable negligence for his assessment of and response to
a crime scene – to introduce testimony regarding how Aledda was trained to
assess and respond in such circumstances.
Reversed and remanded for a new trial.