FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D20-3627
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LAYTON TODD MIZELL,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
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On appeal from the Circuit Court for Nassau County.
James Daniel, Judge.
September 21, 2022
B.L. THOMAS, J.
Layton Todd Mizell appeals his conviction for DUI
manslaughter. He asserts that the trial court reversibly erred by
excluding evidence of the deceased’s intoxication, which
improperly deprived him of his defense that the deceased’s
impairment was the sole cause of the fatal collision.
Before trial, the State filed a motion in limine seeking to
exclude evidence that the victim’s blood contained alcohol and
drugs, and that her vehicle contained alcohol bottles, hydrocodone
containers, and other items indicative of impaired driving. The
victim’s blood-alcohol content was 0.17, twice the legal limit for
which a presumption of impairment applies under section
316.1934(2)(c), Florida Statutes (2018). 1 The victim also had active
ingredients of marijuana and opioid analgesics in her body at the
time of the accident.
The State argued that this evidence was barred under section
90.404, Florida Statutes (2018), as an impermissible use of
character evidence, and under section 90.403, Florida Statutes
(2018), as more prejudicial than probative. In response, the
defense argued that this evidence was highly probative to show
causation, and thus its probative value outweighed its prejudicial
effect. The trial court granted the State’s motion, relying on
Edwards v. State,
39 So. 3d 447 (Fla. 4th DCA 2010), reasoning
that without competent evidence of the victim’s contribution to the
accident, evidence of her possible impairment was not probative of
any material issue.
At trial, the State presented two witnesses who saw the
accident. The accident occurred at night on Lem Turner Road in
Nassau County. Appellant was driving northbound. The victim
was traveling southbound. The road is a two-lane road, and the
speed limit is 45 miles per hour.
The State’s first witness was driving behind Appellant for
eight to ten minutes. The witness described Appellant’s driving
pattern as erratic—Appellant’s vehicle failed to maintain its lane
and would periodically slow down and speed up. He also observed
Appellant move into the southbound lane three or four times. The
witness testified he attempted to call 911 to report Appellant’s
dangerous and erratic driving but lacked cell-phone coverage.
This witness then saw Appellant cross into the southbound
lane where Appellant’s vehicle hit the deceased’s vehicle head on.
The witness observed the deceased’s vehicle take evasive action to
the right to avoid Appellant’s vehicle. However, the witness
1 “If there was at that time a blood-alcohol level or breath-
alcohol level of 0.08 or higher, that fact is prima facie evidence that
the person was under the influence of alcoholic beverages to the
extent that his or her normal faculties were impaired.”
§ 316.1934(2)(c), Fla. Stat.
2
testified that he only observed about three seconds before the
crash.
The second witness was driving in front of Appellant. He
testified that for about eight and a half miles, Appellant repeatedly
sped up to get close to the rear of the witness’s vehicle. Appellant
drove so close to the witness’s car that the witness could not see
Appellant’s headlights. The second witness watched Appellant
through his rear-view mirrors and never saw Appellant move into
the southbound lane until the accident occurred.
Seconds before the accident, the second witness saw a vehicle
coming toward him in the southbound lane. As the vehicle in the
southbound lane passed, the second witness looked in his side-view
mirror to see how close Appellant was to the rear of his vehicle. As
Appellant approached the witness’s vehicle, Appellant drove
halfway into the southbound lane where he hit the deceased’s
vehicle head on.
The collision killed the victim immediately. Appellant
suffered serious injuries, including major trauma to one leg after
it was pinned under the steering wheel and crushed by the
dashboard.
When emergency personnel removed Appellant from his car,
one of the witnesses identified the odor of alcohol on Appellant’s
breath and both observed beer cans in his car. The EMT witnesses
observed an open alcoholic beverage in the driver’s side door, and
multiple alcoholic beverage cans and bottles scattered throughout
and around the vehicle. Appellant admitted to the EMT witness
that he had been drinking. Throughout the encounter, Appellant
was alert and oriented based on the assessment tools used to
review his condition, but he did not know where he was.
On the Glascow Coma Scale, which is used to assess a person’s
mental status, Appellant scored a perfect fifteen. But multiple
witnesses testified that Appellant exhibited signs of impairment
that night. Sergeant Wettstein, who responded to the accident,
testified that he observed a strong odor of alcohol on Appellant’s
breath and inside Appellant’s vehicle. He also testified that
Appellant was dazed, and his eyes were watery, glassy, and
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bloodshot. 2 He noticed that Appellant’s speech was mumbled, slow,
and slurred. Corporal Tolman spoke with Appellant at the
hospital. He observed an odor of alcohol on Appellant’s breath and
a lethargic demeanor. Appellant’s blood sample, taken
approximately two hours after the accident, showed a blood-
alcohol content of 0.116 and 0.115.
Sergeant Bennett with Florida Highway Patrol responded to
the accident around midnight, and the vehicles had not been
moved. The victim was still in the driver’s seat of her vehicle, but
Appellant was no longer on scene. Sergeant Bennett examined the
scene, took photographs, and prepared a field-sketch diagram. One
of the photographs of the inside of Appellant’s vehicle depicted beer
bottles. Another photograph showed beer bottles and cans inside
and outside the vehicle. Some beer cans were open, and some had
ruptured.
Based on the evidence at the scene, including vehicle parts,
debris, and gouge marks, Sergeant Bennett determined that the
accident was an offset, head-on collision that occurred in the
southbound lane, the lane in which the deceased was traveling.
Appellant testified that at the time of the accident, he had a
cooler with beer in his car from a previous hunting trip. He had
both empty and full beer cans in the cooler. He asserted that on
the night of the accident, he drank three cans of beer and a sip of
a fourth between 9:40 p.m. and 10:20 p.m. After drinking, he did
not feel impaired and began driving home around 10:20 p.m. When
Appellant turned onto the road where the accident occurred, he
immediately noticed that the vehicle behind him had its bright
lights on. These lights distracted him, and he tried to get away
from the lights by passing the vehicles in front of him.
Appellant testified that before the accident, he again sped up
to try to pass the car in front of him. He saw a car from the other
lane move into his lane. Appellant jerked to the left, into the
opposite lane, to avoid the car. At the same time Appellant jerked
2 Appellant has one prosthetic eye from a childhood golf
accident.
4
to the left, the oncoming car also moved back into its lane. As a
result, the cars collided.
Appellant stated that he told the paramedics, his hospital
nurse, and two state troopers that he drank alcohol before the
accident. Appellant testified that he did not feel affected by the
alcohol he had consumed that night.
A defense expert witness in forensic medicine testified that
Appellant’s blood-alcohol content at the time of the accident was
approximately 0.05, for which no statutory presumption of
impairment is required.
Corporal Mueller testified in rebuttal that he obtained the
event data recorder (“EDR”) from the deceased’s vehicle. 3
According to the EDR, the deceased was traveling 52.8 miles per
hour and was using cruise control. There was nothing unusual
about the deceased’s movements prior to 0.15 seconds before the
crash. In the final 0.15 seconds before impact, the deceased took
evasive action by steering to the right, away from Appellant’s
travel lane, and applying the brakes.
After Appellant testified, the defense requested to reopen the
evidentiary and causation issue regarding the deceased’s
intoxication at the time of the accident. Both parties presented
extensive argument. The trial court determined that the material
issue was whether Appellant was in the deceased’s lane. As a
result, the trial court held, “[i]n this case, I don’t think the
intoxication of the victim tends to prove who was in whose lane,
and so I will sustain the objection.”
The jury found Appellant guilty of DUI manslaughter, as
charged. Appellant moved for a new trial, arguing in part that the
trial court erred by excluding evidence of the deceased’s
intoxication. The trial court once again upheld its previous ruling,
stating that the deceased’s intoxication and use of drugs at the
time of the accident had no probative value on causation.
3 An EDR is like a black box in an airplane, and it reflected
what was happening in the victim’s vehicle the last 4.56 seconds
before the accident.
5
We review a trial court’s evidentiary ruling for abuse of
discretion. Johnson v. State,
969 So. 2d 938, 949 (Fla. 2007). All
relevant evidence is admissible, and relevant evidence is that
which tends to prove or disprove a material fact. §§ 90.401-.402,
Fla. Stat. (2018).
The third element of DUI manslaughter requires that a
defendant “cause or contribute to causing” the death of a victim
while operating a vehicle while impaired. § 316.193(3)(c)3., Fla.
Stat. (2018) (emphasis added). For a decedent’s conduct to
constitute a defense to DUI manslaughter, the conduct must be
viewed as the sole proximate cause of an accident. Miller v. State,
250 So. 3d 144, 145 (Fla. 1st DCA 2018).
Florida’s DUI manslaughter statute imposes an expansive
responsibility on drivers who consume alcohol and are involved in
an accident that causes serious injury or death. The Florida
Supreme Court stated that the statute requires only that the
operation of a vehicle cause an accident, and “any deviation or lack
of care on the part of a driver under the influence to which the fatal
accident can be attributed will suffice.” Magaw v. State,
537 So. 2d
564, 567 (Fla. 1989) (emphasis added); see also Clark v. State,
315
So. 3d 776, 780 (Fla. 1st DCA 2021) (“The State must only present
evidence to show the driver’s conduct contributed to the victim’s
death.” (emphasis added)).
This Court has held that it is reversible error to exclude any
evidence that “tends in any way, even indirectly, to establish a
reasonable doubt of [a] defendant’s guilt.” Martin v. State,
110 So.
3d 936, 938 (Fla. 1st DCA 2013) (quoting Rivera v. State,
561 So.
2d 536, 539 (Fla. 1990)). But in quoting Rivera, the Court in Martin
failed to quote the following language: “[h]owever, the
admissibility of this evidence must be gauged by the same principle
of relevancy as any other evidence offered by the defendant.” Rivera,
561 So. 2d at 539 (emphasis added). There, the defendant sought
to introduce evidence of a similar murder that occurred while the
defendant was in custody to disprove his commission of the
charged murder.
Id. at 539–40. The supreme court upheld the trial
court’s exclusion of this reverse Williams 4-rule evidence, finding
4 Williams v. State,
110 So. 2d 654 (Fla. 1959).
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the dissimilarities between the reverse Williams-rule evidence and
the victim’s murder sufficient to preclude the reverse Williams-
rule evidence. Rivera,
561 So. 2d at 539–40.
Thus, even in a death penalty case, a trial court’s ruling
excluding potentially exculpatory evidence will be upheld if the
evidence is not sufficiently relevant. And under section 90.403,
trial courts must exclude even relevant evidence “if its probative
value is substantially outweighed by the danger of unfair
prejudice, confusion of issues, misleading the jury, or needless
presentation of cumulative evidence.”
Here, there was an obvious danger in admitting evidence,
even relevant evidence, that would allow the jury to improperly
consider the deceased’s intoxication, because the statute requires
that any fault of the deceased be the sole cause of the fatal collision
to absolve Appellant of guilt. Appellant violated the statute, even
if he only contributed to the accident, so the proffered evidence had
to show that the victim was 100% at fault for the collision. 5
The excluded evidence did not show that the deceased was
solely responsible for the fatal accident. In addition, the potential
danger of this evidence to mislead the jury renders it inadmissible
under section 90.403. See Marchina v. State,
702 So. 2d 1369 (Fla.
1st DCA 1997) (holding that the evidence should have been
excluded under section 90.403, as its very limited probative value
was outweighed by the danger of unfair prejudice and was relevant
only to prove bad character of defendant in violation of section
90.404(2)(a)). While the trial court did not rely on section 90.403,
and this rationale, we may consider this logic and legal authority
5 For a general comparison to a civil case, in Walt Disney
World Co. v. Wood,
515 So. 2d 198 (Fla. 1987) (superseded by
statute in Fabre v. Marin,
623 So. 2d 1182 (1993)), the supreme
court held that a defendant who was only one percent at fault
remained liable based on joint and several liability. Similarly in
the criminal context of DUI manslaughter and vehicular homicide,
if a criminal defendant contributes in any way to a fatal accident,
the defendant may be charged and convicted regardless of the fault
of the deceased or seriously injured victim. While the burdens of
persuasion are obviously different in civil and criminal cases, the
rule of joint and several liability is instructive.
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in affirming the judgment. See Childers v. State,
936 So. 2d 585,
593–96 (Fla. 1st DCA 2006) (en banc) (affirming judgment under
“tipsy coachman” rule, because, although trial court erred in
excluding evidence as irrelevant, evidence was properly excluded
under section 90.403). We thus conclude that the trial court did not
err in excluding this evidence when it carefully and commendably
considered all aspects of this case.
And even if the trial court erred, which we do not decide, any
error was harmless. Here, there is no reasonable possibility that
excluding evidence of the victim’s intoxication contributed to
Appellant’s conviction. Cooley v. State,
273 So. 3d 258, 261 (Fla.
1st DCA 2019) (holding that the Court “need not decide whether
the trial court’s decision to allow evidence” was error, as any error
was harmless); Thorne v. State,
271 So. 3d 177, 187 (Fla. 1st DCA
2019) (“Thus, we hold the error was harmless beyond a reasonable
doubt in light of the extensive inculpatory evidence and the entire
context” of the excluded evidence).
Even accepting Appellant’s testimony as credible, Appellant’s
conduct contributed to the accident. Appellant testified that a car
crossed into his lane, so he reacted and moved into the opposite
lane. Based on this evidence alone, Appellant contributed to the
accident by moving into the lane where the accident occurred. See
Magaw,
537 So. 2d at 567; Clark, 315 So. 3d at 780. Because
Appellant presented evidence that he caused or contributed to the
accident, there is no reasonable possibility that the error of
excluding the evidence of the victim’s intoxication contributed to
the verdict. See § 316.193(3)(c)3., Fla. Stat.
In reaching this conclusion, we considered the decision in
Getts v. State,
313 So. 3d 964 (Fla. 2d DCA 2021), relied on by
Appellant here, which had not been decided during the trial
proceedings. In Getts, the court held the trial court erred by
excluding evidence of an intoxicated driver involved in a fatal
accident. 313 So. 3d at 968. There, the decedent was a passenger
of the defendant who was killed when the defendant hit another
vehicle from behind. Id. at 966.
In Getts, the defendant was driving in the right-hand lane of
a four-lane divided highway. Id. at 965–66. The EDR evidence
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showed that Getts was traveling more than one hundred miles per
hour. Id. at 966. No witness corroborated Getts’ testimony
claiming that the driver of the other vehicle had veered into Getts’
lane. Id. Holding that a jury could disbelieve all the State’s
evidence and believe Getts’s self-serving testimony, the court there
decided that the evidence of the other driver’s intoxication could
nevertheless prove that the driver was the sole cause of the
accident. Id. at 968–69. We find the logic of the decision
unpersuasive under Magaw, and the facts distinguishable from
this case, where both the State’s evidence and Appellant’s
testimony support the trial court’s ruling.
537 So. 2d at 567.
Furthermore, the State presented ample, independent
evidence supporting the jury’s verdict so that knowledge of the
victim’s intoxication would not have affected Appellant’s
conviction. Two witnesses testified that Appellant was driving
erratically eight to ten minutes before the accident occurred.
Additionally, both witnesses saw Appellant move into the lane
where the accident occurred, hitting the deceased’s vehicle.
Multiple witnesses testified that Appellant seemed impaired, and
Appellant testified that he had consumed alcohol before the
accident. The State submitted evidence that Appellant’s blood-
alcohol content on the night of the accident was between a 0.115
and 0.116. The State also presented evidence that the fatal
collision occurred in the deceased’s lane, which Appellant never
contradicts, and which is supported by the information on the
deceased’s vehicle’s EDR.
Considering Appellant’s own testimony and the additional
evidence of Appellant’s impairment, the exclusion of the evidence
of the decedent’s intoxication was harmless, if error at all.
See Thorne, 271 So. 3d at 187.
AFFIRMED.
NORDBY and TANENBAUM, JJ., concur.
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_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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Rick A. Sichta and Susanne K. Sichta of The Sichta Firm, LLC,
Jacksonville, for Appellant.
Ashley Moody, Attorney General, Daren L. Shippy, Assistant
Attorney General, Tallahassee, for Appellee.
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