Opinion
No. 98-00734.
Opinion filed November 24, 1999.
Appeal from the Circuit Court for Manatee County; Janette Dunnigan, Judge.
Jeffrey Sullivan, Bartow, for Appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Jenny S. Sieg, Assistant Attorney General, Tampa, for Appellee.
Appeal from the Circuit Court for Charlotte County; W. Wayne Woodard, Acting Circuit Judge.
Steven L. Brannock and Elizabeth A. DeConti of Holland Knight LLP, Tampa, for Appellant/Cross-Appellee.
W. Cort Frohlich of Wilkins, Frohlich, Jones, Hevia, Russell Sutter, P.A., Port Charlotte, for Appellees/Cross-Appellants.
Appellant, Pedro Martinez Yanez, appeals from his convictions and sentences for felony murder and armed burglary of a structure. Appellant asserts that there was insufficient evidence presented at trial to support his convictions, and that the trial court erred in allowing the jury to read an English translation of his Spanish interview conducted by the arresting officer. We affirm appellant's conviction for armed burglary of a structure; however, we reverse appellant's felony murder conviction because the evidence presented at trial did not support his conviction.
Appellant was convicted of felony murder and armed burglary of a structure due to the death of one of his co-conspirators during the commission of the burglary. The trial court sentenced appellant to life in prison for the felony murder conviction, and 93.5 months in prison for the armed burglary of a structure conviction. At the close of trial, appellant moved for a judgment of acquittal which was denied.
The evidence adduced by the State below established that in the evening hours on February 25, 1995, Antonio Vega, Jose Mares, Pedro Garcia, Roy Venegas, and appellant drove to a house in Manatee County with the intent to enter and steal marijuana which they had learned was being stored inside. Three of the conspirators were armed. Upon reaching the house, Vega, Venegas, Mares, and appellant got out of their pick-up truck and headed toward the house while Garcia remained in the truck. Appellant and Venegas were both carrying handguns. Venegas had given Mares a rifle and instructed him to remain outside near the window as a look-out and "shoot to kill" anyone approaching the house. Vega, Venegas, and appellant entered the house through a window. Appellant then picked up two bags of marijuana and went back outside. While outside, appellant noticed a car slowly approaching the residence. Appellant became concerned and hid behind a tree. The car initially passed the house; however, as it approached the end of the street, the car turned around and headed back toward the house. The other conspirators inside the house became scared and ran out the front of the house with bags of marijuana. That was when shots were fired.
At some point, Mares and appellant both began running, and Mares dropped his rifle at the scene. Appellant and Mares were able to make it to the pick-up truck driven by Garcia, and the three conspirators attempted to escape the scene. Vega and Venegas both had been shot and were left behind by the other burglars. Apparently during this time, Ruben Huerta and his son armed themselves with guns and came outside of their home which was across the street from the burglarized residence. The Huertas chased the burglars' pick-up truck in their car and were able to run the truck into a nearby pond. Appellant and the others fled on foot. The Huertas then inexplicably returned to the house and proceeded to remove bags of marijuana from the residence, even the bags that were near the dead body of Antonio Vega. They then hid the marijuana in another vehicle before the police arrived. The Huertas removed approximately 200 pounds of marijuana from the residence and later stated that they intended to sell the marijuana.
The actual events that occurred the evening of the burglary are unclear. The evidence established that Mares fired his rifle; however, there was no evidence establishing at whom Mares was shooting or whether he was the only person firing a gun. During the course of the gunfire, Vega was killed by a gunshot wound through his back, and Venegas was wounded.
The State's theory was that Jose Mares, one of appellant's co-conspirators, mistakenly shot and killed Antonio Vega during the commission of the burglary. The State's case was based entirely upon circumstantial evidence. The defense's theory was that someone other than Mares shot and killed Vega as an act independent of the burglary. We believe the State's evidence failed to exclude beyond a reasonable doubt the defense's version of events.
When a case is based upon circumstantial evidence, the State's evidence must not only be consistent with the defendant's guilt, but must also be inconsistent with any reasonable hypothesis of innocence. See McArthur v. State, 351 So.2d 972, 976 (Fla. 1977). A defendant's motion for judgment of acquittal should be granted in a circumstantial evidence case "if the state fails to present evidence from which the jury can exclude every reasonable hypothesis except that of guilt." State v. Law, 559 So.2d 187, 188 (Fla. 1989).
At the crime scene the police found a rifle on the ground about 400 feet from the house and two handguns in the pick-up truck that was still partially submerged in the pond. There were no fingerprints on the rifle and no evidence that the rifle found at the scene was the rifle Mares possessed during the robbery. Additionally, the medical evidence failed to prove that the rifle found at the scene was in fact the weapon that killed Vega. The medical examiner could only testify that Vega's wounds were consistent with wounds that could have been inflicted by the rifle found on the scene. Thus, the State at most proved that Mares fired his rifle, Vega was killed, and the wounds Vega died from were consistent with a high-velocity rifle. While this evidence might suggest that Mares shot Vega accidently, the evidence is not inconsistent with appellant's theory and is not sufficient to exclude every reasonable hypothesis except that of guilt. See Law, 559 So.2d at 188 ("Where the only proof of guilt is circumstantial, no matter how strongly the evidence may suggest guilt, a conviction cannot be sustained unless the evidence is inconsistent with any reasonable hypothesis of innocence."). Thus, the trial court erred by not granting appellant's motion for judgment of acquittal.
Appellant's second claim is that the trial court erred in allowing the jury to read the English translation of his Spanish confession. We agree that the trial court erred in allowing the jury to read the English translation because there was no evidence in the record that the translation was made by an interpreter sworn to give a faithful and accurate translation. See Ortega v. State, 721 So.2d 350 (Fla. 2d DCA 1998); Hutchens v. State, 469 So.2d 924 (Fla. 3d DCA 1985). Although the trial court erred in allowing the jury to view the transcript, this error is still subject to a harmless error analysis. Applying the standards of that test, we conclude that the error was harmless because the permissible evidence presented at trial conclusively proved that appellant participated in the burglary. Based on the evidence presented at trial, we find that there was no reasonable possibility that the error contributed to appellant's conviction for armed burglary. See State v. DiGuilio, 491 So.2d 1129 (Fla. 1986).
We therefore reverse appellant's conviction and sentence for felony murder, affirm his conviction for armed burglary, and remand for resentencing.
Reversed and remanded for resentencing.
PATTERSON, C.J., NORTHCUTT and STRINGER, JJ., Concur.
Affirmed.
WHATLEY and SALCINES, JJ., Concur.
ALTENBERND, J., Dissents with opinion.
This court's decision to affirm the summary judgment in favor of these defendants is almost certainly an accurate prediction of the result that would occur if we reversed for further proceedings. Nevertheless, I believe the law requires that we reverse this summary judgment.
Fred P. Dula purchased two lots in Punta Gorda Isles in January 1989 from R L Development, Inc. (R L). The lots were purchased as an investment. Mr. Dula alleges that representatives of R L told him that R L was selling the lots below fair market value and that he could "immediately" resell them at a profit or hold them as a profitable investment. He alleges that R L purchased the lots for a significantly lower price only a few days before the sale to him. He further alleges that the lots were sold to him for an amount above fair market value. He claims that these facts were concealed from him when purchasing the lots, and that he relied upon a fraudulent appraisal prepared by Jeffrey Fehr and Steve T. Kennedy, d/b/a All County Appraisal and Consulting.
Mr. Dula did not file this lawsuit until June 13, 1995. Initially, in addition to the appraisers, he sued R L, two agents of R L, and a bank. The trial court dismissed the entire case with prejudice in 1997 without specifying the grounds for dismissal. In Dula v. Leeber, 707 So.2d 757 (Fla. 2d DCA 1998), this court affirmed the dismissal of all of the parties with the exception of the appraisers.
On remand, the appraisers filed a motion for summary judgment, primarily arguing that the statute of limitations had expired. The appraisers filed no affidavits in support of this motion. There are no depositions or any other forms of evidence in the record. Thus, the motion is effectively a motion to dismiss on the theory that the complaint on its face establishes that the statute of limitations had expired prior to the filing of the complaint. Because the action against the appraisers alleged fraud, it would not be barred by the statute of limitations unless the fraud was discovered or should have been discovered before June 1991-approximately 2+ years after the sale. See § 95.031(2), Fla. Stat. (1987).
Mr. Dula, who does not live in Florida, listed the lots for sale with R L, as his real estate agent, immediately after buying them from R L, as owner. His complaint alleges that he first discovered the fraud when he checked with another real estate agent in 1994. Thus, in order to grant summary judgment, the trial court had to determine, as a matter of law, that the complaint disclosed the undisputed fact that Mr. Dula should have discovered the true facts surrounding the real estate transaction several years earlier.
I recognize that after our last opinion allowed the dismissal of R L, Mr. Dula's only remaining claim is probably the runt of the litter. The appraisals were never attached to any of the numerous amended complaints filed by his trial attorney, and without any evidence in the record, it is difficult to know whether he has a viable cause of action against these appraisers. His own allegations indicate that the claim against the appraisers for one of the parcels is extremely tenuous. Under the federal standard for summary judgments, this summary judgment might be correct. See Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Nevertheless, I do not believe that Florida law allows a "discovery" statute of limitations issue to be resolved exclusively on the face of the complaint, when the complaint alleges a specific discovery date that is within the statute. See Snyder v. Cheezem Dev. Corp., 373 So.2d 719 (Fla. 2d DCA 1979). See also Lich v. N.C.J. Inv. Co., 728 So.2d 1191 (Fla. 2d DCA 1999) (Altenbernd, J., dissenting).
I would reverse and require the appraisers to establish a factual basis for their motion for summary judgment.
Respondent, formerly employed by DOT as a driver with a commercial driver's license, was dismissed when he refused to submit to an alcohol test during a random drug test performed under federal and state law by failing to supply an adequate breath sample. Respondent appealed his dismissal to the Public Employees Relations Commission (PERC) pursuant to section 112.0455, Florida Statutes (1999), the Florida Drug-Free Workplace Act. Pursuant to respondent's discovery request, the hearing officer issued a subpoena duces tecum to the breath alcohol technician who administered respondent's test, requiring production of all employee test results on the machine since the month preceding respondent's test and entered an order requiring DOT to identify other employees unable to provide an adequate breath sample on the same date and on the same machine appellant was tested. The order also required DOT to provide the names of similarly situated employees as related to the mitigation criteria contained in section 447.208(3), Florida Statutes. In response to DOT's appeal, PERC issued an interim order determining that section 447.208(3) is inapplicable to a Drug- Free Workplace appeal, but requiring DOT to provide the names, addresses, and phone numbers of other employees tested by DOT and the date of the test, but not the test results.
See 49 C.F.R. § 382.211.
The Department sought review of these orders, urging as it did below, that PERC's action requires DOT and the alcohol testing technician to release confidential information about state employees in contravention of both state and federal law. We find that judicial review of these non-final orders is proper in this case. See § 120.68(1), Fla. Stat.; Holmes Reg'l Med. Cent., Inc. v. Agency for Health Care Admin., 731 So.2d 51, 53 (Fla. 1st DCA 1999) ("[T]he opportunity to review a nonfinal order exists only in those cases in which the court must address an issue immediately to protect a substantial right that would be lost in the interim."); see, e.g., Prudential Ins. Co. v. Florida Dep't of Ins., 694 So.2d 772, 773 (Fla. 2d DCA 1997) (deciding to review non-final agency action because "[a]n order requiring discovery is a proper subject for review `since an erroneously compelled discovery, once made, may constitute irreparable harm which cannot be remedied on appeal.'").
Florida's Drug-Free Workplace Act, section 112.0455, Florida Statutes (1999), is intended to "[p]romote the goal of drug-free workplaces within government through fair and reasonable drug- testing methods for the protection of public employees and employers." The legislature provided for confidentiality regarding that testing as follows:
Except as otherwise provided in this subsection, all information, interviews, reports, statements, memoranda, and drug test results, written or otherwise, received or produced as a result of a drug- testing program are confidential and exempt from the provisions of s. 119.07(1) and s. 24(a), Art. I of the State Constitution, and may not be used or received in evidence, obtained in discovery, or disclosed in any public or private proceedings, except in accordance with this section.
§ 112.0455(11)(a), Fla. Stat. At issue in the instant case is the meaning of the following exception:
Employers, laboratories, employee assistance programs, drug and alcohol rehabilitation programs, and their agents may not release any information concerning drug test results obtained pursuant to this section without a written consent form signed voluntarily by the person tested, except where such release is compelled by a hearing officer or a court of competent jurisdiction pursuant to an appeal taken under this section, or where deemed appropriate by a professional or occupational licensing board in a related disciplinary proceeding.
Petitioner DOT argues that in keeping with the statute's clear and sweeping confidentiality provision, paragraph (b) permits a hearing officer to order discovery of information concerning drug test results only as to the testing of the particular employee challenging an employment action and not as authorizing the discovery of any information, including the names and addresses, regarding other persons subject to the testing program. We agree. Authorizing a hearing officer or court to order discovery of information regarding any person other than the specific employee in question allows the exception to swallow the rule. The very purpose of the confidentiality provision would be defeated. Our interpretation of this statute is consistent with federal law and regulations applicable in this case.
The federal Omnibus Transportation Employee Testing Act of 1991 also governs DOT's alcohol and controlled substances testing of drivers holding a commercial license, such as respondent. See 49 U.S.C. § 31306. This statute, like the Florida statute, and the applicable federal regulations require employers to retain and keep confidential the records of their drug testing program. See id.; 49 C.F.R. § 382.401, .405(a). The exception to this confidentiality requirement provides as follows:
An employer may disclose information required to be maintained under this part pertaining to a driver, [sic] the decision maker in a lawsuit, grievance, or other proceeding initiated by or on behalf of the individual, and arising from the results of an alcohol and/or controlled substance test administered under this part, or from the employer's determination that the driver engaged in conduct prohibited by subpart B of this part (including but not limited to, a worker's compensation, unemployment compensation or other proceeding relating to a benefit sought by the driver).
49 C.F.R. § 382.405(g). See also 49 C.F.R. § 40.81 (governing workplace alcohol testing procedures and permitting an employer to disclose "information required to be maintained under this part pertaining to a covered employee to that employee or to the decision maker in a lawsuit, grievance, or other proceeding initiated by or on behalf of the individual, and arising from the results of an alcohol test administered under the requirements of this part . . . ."). The federal exception is clearly drawn to allow the decision maker in an administrative proceeding or court to obtain only the records applicable to the employee in question in order to preserve the confidentiality of the records pertaining to other employees.
The Department argues that if section 112.0455(11)(b), Florida Statutes, is interpreted to permit a hearing officer to order discovery of information regarding anyone other than the employee in question, as was done by the hearing officer and PERC below, the statute is preempted by the federal law and regulation under which respondent was tested. Again, we agree.
The federal Act and its attendant regulations specifically provide for the preemption of any contrary or inconsistent state law or regulation as follows:
A State or local government may not prescribe or continue in effect a law, regulation, standard, or order that is inconsistent with regulations prescribed under this section. However, a regulation prescribed under this section may not be construed to preempt a State criminal law that imposes sanctions for reckless conduct leading to loss of life, injury, or damage to property.
49 U.S.C. § 31306(c)(7), (g) (1996). See 49 C.F.R. § 382.109. The preemption of state law or a state hearing officer's order is express and unambiguous. See Keaveney v. Town of Brookline, 937 F. Supp. 975 (D.Mass. 1996). As stated above, the federal law clearly limits the authority of a decision maker in an administrative or judicial proceeding to obtain release of information obtained and retained by the employer under the testing program. An administrative or judicial tribunal may only order release of information regarding the specific employee whose interest is at issue in the proceeding. To the extent that the hearing officer and PERC have construed the statute more broadly, such construction is contrary to and is expressly preempted by federal law and regulation.
Accordingly, we grant DOT's petition for review of these orders. We vacate those orders and quash the subpoena issued below.
MINER and ALLEN, JJ., and SMITH, LARRY, G., SENIOR JUDGE, CONCUR.