Pozo v. State

963 So. 2d 831, 2007 WL 2254515
CourtDistrict Court of Appeal of Florida
DecidedAugust 8, 2007
Docket4D05-3419
StatusPublished
Cited by11 cases

This text of 963 So. 2d 831 (Pozo v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pozo v. State, 963 So. 2d 831, 2007 WL 2254515 (Fla. Ct. App. 2007).

Opinion

963 So.2d 831 (2007)

Carlos POZO, Appellant,
v.
STATE of Florida, Appellee.

No. 4D05-3419.

District Court of Appeal of Florida, Fourth District.

August 8, 2007.
Rehearing Denied October 4, 2007.

*832 Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.

WARNER, J.

Carlos Pozo appeals his conviction and sentence for vehicular homicide. He raises multiple claims of error, on which we affirm, including: (1) failure to grant a judgment of acquittal on the sufficiency of the evidence; (2) denial of a peremptory juror challenge for failure to give a race-neutral reason; (3) failure to give a special jury instruction; and (4) error in answering a jury question during deliberations. We reverse, however, because the trial court denied a post-trial motion to interview the jury when there was evidence of actual prejudice resulting from external juror influence.

Pozo and several classmates decided to skip school one morning to go to breakfast. All of the friends followed Pozo to his house so he could get some money. Caitlyn Kazanjian accompanied Pozo in his vehicle. As they entered the residential area, with a speed limit of thirty-five miles per hour, Pozo began driving very fast. One of his classmates and an independent eyewitness, Mr. Madsen, estimated his speed between seventy-five and ninety miles per hour. Pozo passed Madsen, who observed a rain shower just ahead of Pozo's vehicle. Madsen and Pozo's classmates lost sight of the vehicle when it disappeared around a curve in the road.

Around the curve, the classmates in the other vehicle found Pozo's vehicle wrapped around a tree. Both occupants had been ejected, and, tragically, Kazanjian, who *833 was wearing a seatbelt, died of her injuries.

At the scene, Officer Main, the police investigator, did not observe any skid marks, either because of the rain-slicked roadway or the failure to brake. Using the car remnants, Main later used a statistical measure to estimate that Pozo was traveling at least sixty-seven miles an hour at the time of the crash.

The police took a statement from Pozo in which he admitted speeding but estimated he was going no more than fifty-five miles per hour. He also explained that he had one hand on the steering wheel while he was picking out a CD to play. He claimed that a black vehicle entered the road from a side street, and he swerved to avoid the vehicle, causing him to lose control of his car.

The jury convicted Pozo of vehicular homicide. The court sentenced him to sixty-six months in prison, to be followed by sixty months of probation. This appeal follows.

Pozo argues that the evidence of vehicular homicide submitted by the prosecution was insufficient as a matter of law and that the court reversibly erred in denying Pozo's motion for judgment of acquittal. Pozo claims that the state based its case primarily on speed alone, which he claims is insufficient to support a charge of vehicular homicide. We agree with the state, however, that not only was the speed grossly excessive, but other factors were present which prevented the entry of a judgment of acquittal.

Although some courts have held that speed alone is insufficient to support a charge of vehicular homicide, see House v. State, 831 So.2d 1230, 1233 (Fla. 2d DCA 2002); Hamilton v. State, 439 So.2d 238 (Fla. 2d DCA 1983), we have held that grossly excessive speed alone can constitute such reckless conduct as to support a charge of manslaughter by culpable negligence. See Copertino v. State, 726 So.2d 330, 332-33 (Fla. 4th DCA 1999). The degree of culpability required to prove vehicular homicide "is less than culpable negligence, which is the standard for manslaughter, but more than a mere failure to use ordinary care." Michel v. State, 752 So.2d 6, 12 (Fla. 5th DCA 2000). In Copertino we explained:

For this crime of manslaughter by culpable negligence, however, it is one thing to speed slightly over the posted limit, and it is quite another matter to drive at such an immensely excessive rate that no one could reasonably drive. In our opinion, the rate of speed of a vehicle can be firmly shown by the evidence to be so excessive under the circumstances that to travel that fast under the conditions is by itself a reckless disregard for human life or the safety of persons exposed to the speed. For example, while driving 90 mph at Sebring on a test track might not even be negligent conduct, racing at 90 mph in front of school where children are entering or leaving would surely be so flagrant as to show a reckless disregard for human life and safety. This case is of the latter kind. This defendant drove his vehicle at an enormously excessive speed at a time and in a place where it might have been dangerous to exceed the posted limits by even a little.

726 So.2d at 332-33 (emphasis in original). Similarly, based upon the state's evidence, Pozo was driving anywhere from sixty-seven to ninety miles per hour in a residential neighborhood. That fact alone places this case in line with Copertino and justified the denial of the motion for judgment of acquittal, particularly given that the recklessness necessary to prove vehicular homicide is less than that of culpable *834 negligence. However, in addition to that, Pozo was playing with his CD, being inattentive to his speed in rainy conditions, and rounding a curve in the road. These factors, combined with his speed, provide more than ample evidence to withstand the motion. See also D.E. v. State, 904 So.2d 558 (Fla. 5th DCA 2005); Byrd v. State, 531 So.2d 1004 (Fla. 5th DCA 1988).

We dispense with the other trial issues summarily. Pozo challenged the state's strike of a Hispanic juror. However, he failed to preserve the issue by renewing his objection before the jury was sworn. Melbourne v. State, 679 So.2d 759, 765 (Fla.1996); Joiner v. State, 618 So.2d 174, 176 (Fla.1993). The court did not err in refusing a special jury instruction stating that speed alone is insufficient to prove vehicular homicide. As we have noted in ruling on the motion for judgment of acquittal, in this case the grossly excessive speed alone would have been sufficient to prove the case even though there were clearly other factors present. The court did not abuse its discretion in refusing this instruction. See Campbell v. State, 812 So.2d 540, 543-44 (Fla. 4th DCA 2002). Finally, we find no error in the court's comments to the jury, as we do not view them as comments on the evidence.

After the verdict, a juror wrote to the judge of her dismay over the jury deliberations. In her letter, the juror stated that she was concerned about Pozo's sentence and expressed a desire that his teen years not be wasted. Additionally, she stated:

Another struggle I am having is the aggressive behavior by two of my fellow jurors. Three of the jurors were not included until the very end. And one who was remaining not guilty changed her mind after conversations that were fabricated about the possibilities of the defendants [sic] character as well as our own security. It was brought up that Palm Beach County Sheriff's office might harass us if we came back with a[not] guilty verdict.[1]

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Cite This Page — Counsel Stack

Bluebook (online)
963 So. 2d 831, 2007 WL 2254515, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pozo-v-state-fladistctapp-2007.