URBANO ACOSTA

v.

THE STATE OF FLORIDA

Following a jury trial, Urbano Acosta ("Appellant" or "Acosta") was convicted of one count of driving under the influence, § 316.196 (1), Fla. Stat. (2006), and one count of reckless driving, § 316.19(1)(a) Fla. Stat. (2006), and sentenced to serve a period of incarceration. [*1] IN THE CIRCUIT COURT OF THE

ELEVENTH JUDICIAL CIRCUIT, IN

AND FOR MIAMI-DADE COUNTY,

FLORIDA

APPELLATE DIVISION

CASE NO. 2018-000020 AC 01 LOWER COURT CASE NO. 9949XEX

Amended Opinion

FILED

FEB 2 6 2020

CLERK, CIRCUIT & COUNTY COURTS On appeal Acosta raised several issues, however, this Court reverses and remands the matter for the reasons stated below.

BACKGROUND

The Appellant was arrested for reckless driving. While handcuffed, the arresting officer noticed the smell of alcohol emanating from Acosta's breath when he spoke. The officer also observed other signs of impairment, including but not limited to: erratic driving, flushed face, bloodshot and water eyes, slurred speech, and a stumbling gait. The officer requested that Acosta perform field sobriety exercises, but he declined. Acosta was warned of the consequences for refusal. The officer searched Appellant's vehicle and found empty beer cans with an odor of alcohol coming off them, and an alcohol odor coming from Acosta.

Acosta was transported to the station, and the arresting officer read the Implied Consent Form to him. Subsequently, the officer recorded Appellant's refusal on a Breath Refusal Affidavit, memorializing Acosta's refusal to submit to an intoxilyzer examination. During the reading of the Implied Consent Form the officer informed Acosta of the consequences of refusing to provide a breath sample. The Appellant was charged with reckless driving, DUI, and several non-criminal traffic citations.

During closing statement, the Assistant State Attorney made the following statements:

State Attorney: This chain reaction of the defendant's choices that he made, from the drinks he had before he got into the car, to the choice to drive, to the choice to run the red lights in front of Officer Leon Paige, get pulled over for reckless driving after he saw him how he was affecting choice, to the choice to dispel the concerns of driving under the influence . . .

(Trial Tr. 308:4-14, Jan. 17, 2018 (emphasis added).) State Attorney: The defendant also made the choice to drive. The defendant also made the choice to refuse road side exercises. The [*2] defendant also made the choice to refuse the breath sample. Ladies and gentlemen of the jury, ask yourselves a question, "Why would some choose to have their license suspended instead of providing breath? Instead of doing road side exercises? . . ."

State Attorney: Members of the jury, I challenge you is that this refusal occurred, was because he knew that he was what would be in that breath sample. He knew that those road side exercises would show . . .

(Trial Tr. 328:22-329:24, Jan. 17, 2018 (emphasis added).)

STANDARD OF REVIEW

"A trial court has discretion in controlling opening and closing statements, and its decisions will not be overturned absent an abuse of discretion." Williams v. State, 225 So. 3d 349, 353 (Fla. 3d DCA 2017) (quoting Merck v. State, 975 So. 2d 1054,1061 (Fla. 2007)). "Where the comments were improper and the defense objected, but the trial court erroneously overruled defense counsel's objection," the harmless error standard of review applies, which places " "the burden on the state, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict. " Sweeting v. State, 260 So. 3d 520, 524 (Fla. 3d DCA 2018) (quoting Cardona v. State, 185 So. 3d 514, 520 (Fla. 2016)).

LEGAL ANALYSIS

An axiomatic principle of constitutional law is that the burden to establish commission of a criminal offense beyond a reasonable doubt is, and remains, on the prosecuting entity throughout the trial. Jackson v. State, 575 So. 2d 181 (Fla. 1991). This requirement is "basic in our law and rightly one of the boasts of a free society." In re Winship, 397 U.S. 358, 362, 90 S.Ct. 1068, 25 L.Ed. 2d 368 (1979) (quoting Leland v. Oregon, 343 U.S. 790, 803, 72 S.Ct. 1002, 96 L.Ed. 1302 (1952) (Frankfurter, J., dissenting). "For that reason, it is error for a prosecutor to make statements [*3] that shift the burden of proof and invite the jury to convict the defendant for some reason other than that the State has proved its case beyond a reasonable doubt." Brooks v. State, 267 So. 3d 417, 421 (Fla. 4th DCA 2019) (quoting Jackson v. State, 575 So. 2d 181, 188 (Fla. 1991)). In the event improper burden-shifting occurs, the appellate court must examine the entire record, in context. Rodriguez v. State, 27 So. 3d 753, 755-57 (Fla. 3d DCA 2010).

The Fifth Amendment of the United States Constitution guarantees that a criminal defendant cannot be compelled to be a witness against himself. State v. Socarras, 272 So. 3d 488, 492 (Fla. 3d DCA 2019). Furthermore, "courts must prohibit all evidence or argument that is fairly susceptible of being interpreted by the jury as a comment on the [defendant's] right of silence." Morris v. State, 988 So. 2d 120, 122 (Fla. 5th DCA 2008) (quoting Smith v. State, 681 So. 2d 894, 895 (Fla. 4th DCA 1996). The Fifth Amendment, however, generally, does not encompass instances where the accused is the source of physical evidence. Id. When a law enforcement officer has probable cause to believe that the accused was driving under the influence, the officer can compel the accused to perform field sobriety exercises and a breath test. Id. While a prosecutor may comment on a defendant's failure to submit to perform field sobriety exercises and a breath test as evidence of the person's consciousness of his or her guilt, a prosecutor improperly shifts the burden of proof by arguing that an innocent person would volunteer to take a breath test or perform field sobriety exercises to prove his or her innocence. Id. at 123.

Acosta contends that the State's closing argument contained improper burden-shifting arguments that require reversal. We agree. During closing argument, the following exchange occurred:

State Attorney: This chain reaction of the defendant's choices that he made, from the drinks he had before he got into the car, to the choice to drive, to the choice to run the red lights in front of Officer Leon Paige, get pulled over for reckless driving after he saw him [*4] how he was affecting choice, to the choice to dispel the concerns of driving under the influence . . .

Defense: Objection, burden shifting. Judge: Overruled. (Trial Tr. 308:4-14, Jan. 17, 2018 (emphasis added).) State Attorney: The defendant also made the choice to drive. The defendant also made the choice to refuse road side exercises. The defendant also made the choice to refuse the breath sample. Ladies and gentlemen of the jury, ask yourselves a question, "Why would some choose to have their license suspended instead of providing breath? Instead of doing road side exercises?"

Defense: Objection, Judge, denigration, burden shifting, and scope. Judge: Overruled.

State Attorney: Members of the jury, I challenge you is that this refusal occurred, was because he knew that he was what would be in that breath sample. He knew that those road side exercises would show...

Defense: Objection. Judge: Sustained.

(Trial Tr. 328:22-329:24, Jan. 17, 2018 (emphasis added).) Examining these statements in the context of the entire record, we conclude the State improperly shifted the burden of proof by asking the jury "[w]hy would someone choose to have their license suspended instead of providing breath? Instead of doing road exercises?" Although the State argues that it offered Acosta's refusal as evidence of Acosta's consciousness of guilt, we disagree. The State's comments direct the jury to infer Acosta's guilt from the fact that he did not take an affirmative step to prove his innocence by doing road exercises or submitting to a breathalyzer test. The State further asserts, that its comments regarding Acosta's refusal was an invited response to Acosta's alibi defense, however, Mr. Acosta did not assert an alibi defense in [*5] this case. The Defense's objections to these impermissible comments should have been sustained. To establish that these errors were harmless, the State must prove beyond a reasonable doubt that the errors did not contribute to jury's verdict. State v. DeGuilio, 491 So. 2d 1129 (Fla. 1986). Such a conclusion cannot be reached in this case. As such, because the State has failed to prove beyond a reasonable doubt that the error did not contribute to the verdict, we reverse, the judgment on each charge shall be vacated and the matter remanded for a new trial.

ZAYAS, A., AND CUESTA, I, concur Copies furnished to counsel of record and to any party not represented by counsel.