923 F.

2d 801

Alberto SANTIAGO SANCHEZ DEFUENTES, PetitionersAppellees,

v.
Richard L. DUGGER, Robert Butterworth, RespondentsAppellants.
No. 90-3234.

United States Court of Appeals,

Eleventh Circuit.
Feb. 8, 1991.

Belle B. Turner, Asst. Atty. Gen., Daytona Beach, Fla., for respondentsappellants.
Letty Marques, Smallwood and Kelly, Kissimmee, Fla., Alan J.
Baverman, Atlanta Ga., for petitioners-appellees.
Appeal from the United States District Court for the Middle District of
Florida.
Before TJOFLAT, Chief Judge, DUBINA, Circuit Judge, and PECK* ,
Senior Circuit Judge.
DUBINA, Circuit Judge:

The appellants, Richard L. Dugger and Robert Butterworth (hereinafter

"Dugger"), appeal the grant by the United States District Court, Middle District
of Florida, of appellee's petition for writ of habeas corpus.

I. FACTUAL BACKGROUND
2

Appellee, Alberto Santiago Sanchez DeFuentes ("Santiago"), was involved in

an automobile accident at 6:45 p.m. on March 25, 1987, which caused the death
of Martha Widner. Accident investigators found Santiago's Studebaker truck
approximately seven feet into the victim's lane.

Richard Widner, the victim's fifteen year old son, testified that he was riding in
a car with his mother when a truck crossed over into their lane and hit them on
the left side. His mother unsuccessfully tried to steer to the right to avoid the
accident. After the accident, Richard got out of the crushed car and observed a
man getting out of the truck and leaning against his vehicle. Richard
approached the man, who was Santiago, and requested assistance for Martha
Widner who was trapped inside the automobile and still alive. Santiago
declined to assist even though he was a licensed physician. When Richard later
saw Santiago at the hospital, Santiago was slurring his speech, spoke slowly,
and had pink eyes.

When Chris McAdams, a Florida Highway Patrol Trooper, arrived at the scene
of the accident, he detected a faint to moderate odor of alcohol on Santiago's
breath. McAdams transported Santiago to the hospital for a blood test, which
was performed at about 8:15 p.m. The supervisor of the chemistry and
toxicology section of the Orlando, Florida Regional Crime Laboratory testified
that he performed tests on Santiago's blood sample and determined that it
contained a blood alcohol level of .16%.

II. PROCEDURAL HISTORY

5

On December 3, 1987, Santiago was charged by amended information with a

violation of Sec. 316.193(3),1 Florida Statutes, 1987, for operating a motor
vehicle on March 25, 1987, while under the influence of alcoholic beverages to
the extent that his normal faculties were impaired or while he had a blood
alcohol level of .10% or higher, and by reason of such operation, caused the
death of Martha Widner. A second count charged vehicular homicide pursuant
to Sec. 782.071, Florida Statutes, 1987, for the same conduct.

Santiago proceeded to jury trial on February 15-19, 1988. Santiago's motion for
judgment of acquittal was granted as to count two, vehicular homicide. The jury
found Santiago guilty of DUI manslaughter as charged in count one of the
information. He was sentenced to a term of incarceration of three years, which
was stayed pending appeal.2 Santiago timely filed an appeal to the District
Court of Appeal, Fifth District of Florida, which entered its per curiam decision,
affirming the judgment of conviction, on April 11, 1989. The petition for writ
of habeas corpus and supporting memorandum of law were filed in the United
States District Court, Middle District of Florida, on August 8, 1989. The issue
presented in the petition was whether Santiago had been deprived of his
constitutional right to a fair trial because the trial court instructed the jury
concerning an allegedly mandatory rebuttable presumption created by Sec.
316.1934(2)(c), Florida Statutes, 1987.3

On December 12, 1989, the district court entered its order granting the petition
for writ of habeas corpus. The court found that the instruction given to the jury
could have been interpreted as creating a mandatory rebuttable presumption,
and was therefore unconstitutional. The district court also found the statute
upon which the jury instruction was based to be unconstitutional. Notice of
appeal was timely filed by Dugger on March 15, 1990. By order dated April 3,
1990, this court granted Dugger's motion for stay pending appeal.

III. DISCUSSION
A. Procedural Default
8

Dugger argues that Santiago abandoned his objection to the jury instruction
which gave rise to a procedural default and thus there was an adequate and
independent state court ground for denying federal habeas corpus relief. More
specifically, Dugger contends that Santiago did not lodge an objection to the
offending jury instruction when the trial court, following a request by the jury,
reinstructed it on DUI manslaughter. Dugger claims that this issue has been
defaulted by abandonment of any objection pursuant to Wainwright v. Sykes,
433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). Federal courts cannot reach
the merits of a petitioner's claim unless the petitioner can establish cause for the
default and prejudice resulting therefrom. Engle v. Isaac, 456 U.S. 107, 102
S.Ct. 1558, 71 L.Ed.2d 783 (1982). However, in the present case, Santiago's
objection was preserved according to Florida law. See Williams v. State, 395
So.2d 1236 (Fla.Dist.Ct.App.1981). The court in Williams stated that it was
unnecessary to raise an objection both at the charge conference and at the end
of the court's instructions to the jury. Santiago raised his objection to the jury
charge at the charge conference, but did not raise it again when the judge
reinstructed the jury on the same charge after an explanation of DUI
manslaughter. Since a second objection was not necessary, we find there was
no procedural bar.

B. The Jury Instruction

9

The district court held that the jury instruction given in Santiago's trial, taken
almost verbatim from Florida Statutes, Sec. 316.1934(2)(c), created an
unconstitutional mandatory rebuttable presumption which shifted the burden of
proof to the accused and violated Sandstrom v. Montana, 442 U.S. 510, 99
S.Ct. 2450, 61 L.Ed.2d 39 (1979). As the Supreme Court stated in Sandstrom,
the state was prohibited from using evidentiary presumptions in a jury charge
that had the effect of relieving the state of its burden of persuasion beyond a
reasonable doubt of every essential element of the crime. 442 U.S. at 524, 99
S.Ct. at 2459.

10

This court must review the constitutionality of a challenged jury instruction by

reviewing the entire jury charge. Francis v. Franklin, 471 U.S. 307, 105 S.Ct.
1965, 85 L.Ed.2d 344 (1985). Upon a careful reading of the complete jury
instructions given by the court in Santiago's trial, we find that the state was not
relieved of its burden of persuasion and thus the district court erred in finding
that the instruction in question created an unconstitutional mandatory rebuttable
presumption.

11

A presumption is an evidentiary device that enables the trier of fact to presume

the existence of an element of the crime from a basic fact already proven
beyond a reasonable doubt. The vast majority of presumptions are given to the
jury during the instructions on the law at the close of the evidence. In Ulster
County Court v. Allen, 442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979),
the Supreme Court recognized that the state may employ presumptions in order
to satisfy its burden of proof, and delineated the types of presumptions which
are, and are not, constitutionally permissible in criminal cases. In Ulster
County, the Court stated that "[t]he most common evidentiary device is the
entirely permissive inference or presumption, which allows, but does not
require, the trier of fact to infer the elemental fact from proof by the prosecutor
of the basic one and which places no burden of any kind on the defendant." 442
U.S. at 157, 99 S.Ct. at 2224. The permissive inference is not burden shifting
and thus is not violative of Sandstrom.

12

In determining whether a jury charge offends the principles set forth in

Sandstrom, the threshold inquiry is to determine the nature of the presumption
which it describes. 442 U.S. at 514, 99 S.Ct. at 2454. "The court must
determine whether the challenged portion of the instruction created a
mandatory presumption or merely a permissive inference...." Francis, 471 U.S.
at 314, 105 S.Ct. at 1971. "[A] mandatory rebuttable presumption requires a
jury to find that the presumed fact follows the proven fact unless the defendant
produces evidence to rebut the existence of the presumed fact." Miller v.
Norvell, 775 F.2d 1572, 1575 (11th Cir.1985), cert. denied, 476 U.S. 1126, 106
S.Ct. 1995, 90 L.Ed.2d 675 (1986). "A permissive inference suggests to a jury a
possible conclusion to be drawn if the State proves predicate facts, but does not
require the jury to draw that conclusion." Francis, 471 U.S. at 314, 105 S.Ct. at
1971. A mandatory presumption violates the due process clause if it relieves
the state of the burden of persuasion on an element of the offense. Ulster
County, 442 U.S. at 156, 99 S.Ct. at 2224.

13

In Francis, the Court held that in reviewing the constitutionality of a challenged

jury instruction, a specific instruction must be viewed in the context of the
entire jury charge and the question was whether a reasonable juror could have

understood the specific instruction to be a mandatory presumption that shifted

the burden of proof to the defendant. 471 U.S. at 325, 105 S.Ct. at 1977. "If a
specific portion of the jury charge, considered in isolation, could reasonably
have been understood as creating a presumption that relieves the state of its
burden of persuasion on an element of an offense, the potentially offending
words must be considered in the context of the charge as a whole." 471 U.S. at
315, 105 S.Ct. at 1971. The analysis "requires careful attention to the words
actually spoken to the jury ..., for whether a defendant has been accorded his
constitutional rights depends upon the way in which a reasonable juror could
have interpreted the instruction." Id., (quoting Sandstrom v. Montana, 442 U.S.
at 514, 99 S.Ct. at 2454 (1978)).
14

A reasonable juror would not have interpreted the instruction in the case before
us to be burden shifting due to the judge's use of language emphasizing the
state's burden of proof. In his charge, the judge stated that the state was
required to prove the elements of the offense beyond a reasonable doubt. The
record demonstrates that the judge explained to the jury that Santiago had pled
not guilty and thus the jury must presume that he was innocent until the
presumption had been overcome by the evidence to the exclusion of and
beyond a reasonable doubt. The judge pointed out that Santiago "was not
required to prove anything." The record demonstrates the judge's direction as to
the jury's use of its common sense to decide what evidence was reliable in
considering its verdict. The judge also stated that the Constitution required the
state to prove its accusations against Santiago; Santiago did not have to prove or
disprove anything. The judge never used any burden shifting language in his
instructions to the jury and thus no unconstitutional mandatory rebuttable
presumption was created.

15

We do express concern, however, with the judge's use of the words "prima
facie" in his instructions to the jury. This language, taken from the statute, was
reflected in the record when the judge instructed the jury as to the blood
alcohol content necessary to find that Santiago was under the influence of
alcoholic beverages to the extent that his normal faculties were impaired. The
words "prima facie" should not have been used because the average juror
would not know what they mean. Although we agree that the use of the words
"prima facie" was imprudent, we find that the jury instruction, when read in
conjunction with all of the other instructions, was not violative of Sandstrom.

16

The Florida Supreme Court also expressed concern over the use of the words
"prima facie" in a recent decision. In Wilhelm v. Florida, 568 So.2d 1
(Fla.1990),4 the key language was "prima facie case," which may have led a
juror to think that evidence of .10% or more blood alcohol level was sufficient

by itself to establish the defendant's guilt.

17

While the jury instruction in the present case also contained the words "prima
facie," the jury instruction must be read as a whole, as mandated by Francis.
Under the Francis analysis, the jury instruction in Santiago's trial did not shift
the burden of persuasion to Santiago due to the trial judge's careful explanation
of the state's burden to prove each and every element of the offense beyond a
reasonable doubt.

18

The effect of the jury instruction given in Santiago's trial is analogous to the
effect of the jury instruction given in State v. Rolle, 560 So.2d 1154 (Fla.1990),
cert. denied, --- U.S. ----, 111 S.Ct. 181, 112 L.Ed.2d 144 (1990). 5 In Rolle, the
judge instructed the jury concerning evidence of impairment. The judge stated
that the instruction would have led a reasonable juror to understand the
challenged instruction as allowing proof of a blood alcohol level of .10% or
higher to be evidence of impairment. The use of the word "evidence" did not
shift the burden of proof to the defendant and did not create a mandatory
rebuttable presumption. The jury decides the weight to be given all the
evidence in reaching its verdict. That is the jury's duty. The jury in Santiago's
trial considered all of the evidence and decided Santiago was guilty. The jury
instruction never shifted the burden of proof to Santiago.6

19

In conclusion, since we find no Sandstrom violation, we REVERSE the district

court and REMAND with directions to the district court to deny the petition for
writ of habeas corpus. We further VACATE the district court's order holding
the Florida statute unconstitutional on the basis that the district court had no
standing to make that determination.

20

REVERSED, VACATED and REMANDED.

APPENDIX
21

(JURY RETURNED TO THE COURTROOM, AND THE FOLLOWING

PROCEEDINGS WERE HAD:)

22

THE COURT: MEMBERS OF THE JURY, I ALSO THANK YOU FOR

YOUR ATTENTION DURING THIS TRIAL. AND AS IN THE PAST, I
ASSUME YOU WILL CONTINUE WITH YOUR ATTENTION TO THESE
INSTRUCTIONS ON THE LAW THAT APPLIES TO THIS CASE.

23

THE DEFENDANT IN THIS CASE HAS BEEN ACCUSED OF THE CRIME

OF WHAT IS CALLED D.U.I. MANSLAUGHTER. BEFORE YOU CAN

FIND THE DEFENDANT GUILTY OF D.U.I. MANSLAUGHTER, THE
STATE MUST PROVE THE FOLLOWING THREE ELEMENTS BEYOND
A REASONABLE DOUBT.
24

FIRST, THAT THE DEFENDANT OPERATED A VEHICLE; SECONDLY,

BY REASON--OR THE DEFENDANT BY REASON OF SUCH
OPERATION CAUSED THE DEATH OF THE VICTIM IN THIS CASE,
MARTHA WIDNER; THIRDLY, THAT AT THE TIME OF SUCH
OPERATION, THE DEFENDANT WAS UNDER THE INFLUENCE OF
ALCOHOLIC BEVERAGES TO THE EXTENT THAT HIS NORMAL
FACULTIES WERE IMPAIRED OR HAD A BLOOD ALCOHOL LEVEL
OF POINT 10 PERCENT--THAT'S ONE-TENTH OF ONE PERCENT--OR
HIGHER.

25

VEHICLE, AS THAT TERM IS USED IN THESE INSTRUCTIONS, IS ANY

DEVICE IN, UPON OR BY WHICH ANY PERSON OR PROPERTY IS OR
MAY BE TRANSPORTED OR DRAWN UPON A HIGHWAY, EXCEPT
DEVICES USED EXCLUSIVELY UPON STATIONARY RAILS AND
TRACKS.

26

NORMAL FACULTIES, AS THAT INSTRUCTION IS USED IN THESE

INSTRUCTIONS, MEAN THOSE FACULTIES OF A PERSON SUCH AS
THE ABILITY TO SEE, HEAR, WALK, TALK, JUMP, AND IN GENERAL
TO NORMALLY PERFORM THE MANY, MANY MENTAL AND
PHYSICAL ACTS OF OUR DAILY LIVES.

27

ALCOHOLIC BEVERAGES ARE CONSIDERED TO BE BEER, WINE,

WHISKEY, AND ALL OTHER ALCOHOLIC BEVERAGES OF ANY KIND
AND DESCRIPTION WHICH ARE MADE FOR HUMAN CONSUMPTION.

28

IF YOU FIND FROM THE EVIDENCE THAT AT THE TIME OF THE

OPERATION OF THE VEHICLE THAT THE DEFENDANT HAD A POINT
05 PERCENT OR LESS BY WEIGHT OF ALCOHOL IN HIS BLOOD, HE IS
PRESUMED NOT TO BE UNDER THE INFLUENCE OF ALCOHOLIC
BEVERAGES TO THE EXTENT HIS NORMAL FACULTIES ARE
IMPAIRED. THAT'S PURSUANT TO FLORIDA STATUTES.

29

YOU MAY DISREGARD THIS PRESUMPTION IF IT HAS BEEN

REBUTTED BY OTHER EVIDENCE.

30

SECONDLY, IF YOU FIND THAT AT THE TIME OF THE OPERATION

OF THE VEHICLE THAT THE DEFENDANT HAD IN EXCESS OF POINT
05 PERCENT BUT LESS THAN POINT 10 PERCENT BY WEIGHT OF
ALCOHOL IN HIS BLOOD, THERE IS NO PRESUMPTION THAT THE
DEFENDANT WAS OR WAS NOT UNDER THE INFLUENCE OF
ALCOHOLIC BEVERAGES TO THE EXTENT THAT HIS NORMAL
FACULTIES WERE IMPAIRED.

31

SUCH FACT, HOWEVER, MAY BE CONSIDERED WITH OTHER

COMPETENT EVIDENCE IN DETERMINING WHETHER THE
DEFENDANT WAS UNDER THE INFLUENCE OF ALCOHOLIC
BEVERAGES TO THE EXTENT HIS NORMAL FACULTIES WERE
IMPAIRED.

32

THIRDLY, IF YOU FIND THAT AT THE TIME OF THE OPERATION OF

THE VEHICLE THAT THE DEFENDANT HAD POINT 10 PERCENT OR
MORE BY WEIGHT OF ALCOHOL IN HIS BLOOD, IT IS PRIMA FACIE
EVIDENCE THAT THE DEFENDANT WAS UNDER THE INFLUENCE
OF ALCOHOLIC BEVERAGES TO THE EXTENT THAT HIS NORMAL
FACULTIES WERE IMPAIRED.

33

THE KILLING OF A HUMAN BEING IS EXCUSABLE AND THEREFORE

LAWFUL WHEN COMMITTED BY ACCIDENT AND MISFORTUNE IN
DOING ANY LAWFUL ACT. BY "LAWFUL" MEANS WITH USUAL
ORDINARY CAUTION AND WITHOUT ANY UNLAWFUL INTENT OR
BY ACCIDENT OR MISFORTUNE.

34

THE DEFENDANT HAS ENTERED A PLEA OF NOT GUILTY. THIS

MEANS YOU MUST PRESUME OR BELIEVE THE DEFENDANT IS
INNOCENT. THE PRESUMPTION STAYS WITH THE DEFENDANT AS
TO EACH MATERIAL ALLEGATION IN THE INFORMATION
THROUGH EACH STAGE OF THE TRIAL UNTIL IT HAS BEEN
OVERCOME BY THE EVIDENCE TO THE EXCLUSION OF AND
BEYOND A REASONABLE DOUBT.

35

TO OVERCOME THE DEFENDANT'S PRESUMPTION OF INNOCENCE,

THE STATE HAS THE BURDEN OF PROVING THE FOLLOWING TWO
ELEMENTS: FIRST, THAT THE CRIME WITH WHICH THE
DEFENDANT IS CHARGED WAS COMMITTED; AND, SECONDLY,
THAT THE DEFENDANT IS THE PERSON WHO COMMITTED THE
CRIME. THE DEFENDANT IS NOT REQUIRED TO PROVE ANYTHING.

36

WHENEVER THE WORDS "REASONABLE DOUBT" ARE USED, YOU

MUST CONSIDER THE FOLLOWING: A REASONABLE DOUBT IS NOT
A POSSIBLE DOUBT, A SPECULATIVE, IMAGINATIVE OR FORCED
DOUBT. SUCH A DOUBT MUST NOT INFLUENCE YOU TO RETURN A
VERDICT OF NOT GUILTY IF YOU HAVE AN ABIDING CONVICTION
OF GUILT.

37

ON THE OTHER HAND, IF AFTER CAREFULLY CONSIDERING,

COMPARING AND WEIGHING ALL THE EVIDENCE THERE IS NOT
AN ABIDING CONVICTION OF GUILT, OR, IF HAVING A
CONVICTION, IT IS ONE WHICH IS NOT STABLE BUT ONE WHICH
WAVERS AND VACILLATES, THEN THE CHARGE IS NOT PROVED
BEYOND A REASONABLE DOUBT AND YOU MUST FIND THE
DEFENDANT NOT GUILTY BECAUSE THE DOUBT IS REASONABLE.

38

IT IS TO THE EVIDENCE INTRODUCED UPON THIS TRIAL AND TO IT

ALONE THAT YOU ARE TO LOOK FOR THAT PROOF.

39

A REASONABLE DOUBT AS TO THE GUILT OF THE DEFENDANT

MAY ARISE FROM THE EVIDENCE, FROM CONFLICT IN THE
EVIDENCE OR FROM THE LACK OF EVIDENCE.

40

IF YOU HAVE A REASONABLE DOUBT, YOU SHOULD FIND THE

DEFENDANT NOT GUILTY. IF YOU HAVE NO REASONABLE DOUBT,
YOU SHOULD FIND THE DEFENDANT GUILTY.

41

IT IS UP TO YOU TO DECIDE WHAT EVIDENCE IS RELIABLE. YOU

SHOULD USE YOUR COMMON SENSE IN DECIDING WHICH IS THE
BEST EVIDENCE AND WHICH EVIDENCE SHOULD NOT BE RELIED
UPON IN CONSIDERING YOUR VERDICT.

42

YOU MAY FIND SOME OF THE EVIDENCE NOT RELIABLE OR LESS

RELIABLE THAN OTHER EVIDENCE. YOU SHOULD CONSIDER HOW
THE WITNESSES ACTED AS WELL AS WHAT THEY SAID.

43

SOME THINGS YOU SHOULD CONSIDER ARE: DID THE WITNESS

SEEM TO HAVE AN OPPORTUNITY TO SEE AND KNOW THE THINGS
ABOUT WHICH THE WITNESS TESTIFIED? DID THE WITNESS SEEM
TO HAVE AN ACCURATE MEMORY? WAS THE WITNESS HONEST
AND STRAIGHTFORWARD IN ANSWERING THE ATTORNEYS'
QUESTIONS? DID THE WITNESS HAVE SOME INTEREST IN HOW THE

CASE SHOULD BE DECIDED? DOES THE WITNESS'S TESTIMONY

AGREE WITH THE OTHER TESTIMONY AND OTHER EVIDENCE IN
THE CASE? DID THE WITNESS AT SOME OTHER TIME MAKE A
STATEMENT THAT IS INCONSISTENT WITH THE TESTIMONY HE
GAVE IN COURT?
44

YOU MAY RELY UPON YOUR OWN CONCLUSION ABOUT THE

WITNESS. A JUROR MAY BELIEVE OR DISBELIEVE ALL OR ANY
PART OF THE EVIDENCE OR THE TESTIMONY OF ANY WITNESS.

45

EXPERT WITNESSES ARE LIKE OTHER WITNESSES WITH ONE

EXCEPTION. THE LAW PERMITS AN EXPERT WITNESS TO GIVE HIS
OPINION.

46

HOWEVER, AN EXPERT'S OPINION MAY ONLY BE RELIED UPON

WHEN GIVEN ON A SUBJECT ABOUT WHICH YOU BELIEVE HIM TO
BE AN EXPERT.

47

AS WITH OTHER WITNESSES, YOU MAY BELIEVE OR DISBELIEVE

ALL OR ANY PART OF AN EXPERT'S TESTIMONY.

48

THE CONSTITUTION REQUIRES THE STATE TO PROVE ITS

ACCUSATIONS AGAINST THE DEFENDANT. IT IS NOT NECESSARY
FOR THE DEFENDANT TO DISPROVE ANYTHING. NOR IS THE
DEFENDANT REQUIRED TO PROVE HIS INNOCENCE. IT IS UP TO
THE STATE TO PROVE THE DEFENDANT'S GUILT BY EVIDENCE.

49

THESE ARE SOME GENERAL RULES THAT APPLY TO YOUR

DISCUSSIONS; THAT IS, YOUR DELIBERATIONS AS JURORS. YOU
MUST FOLLOW THESE RULES IN ORDER TO RETURN A LAWFUL
VERDICT.

50

YOU MUST FOLLOW THE LAW AS IT IS SET OUT IN THESE

INSTRUCTIONS. IF YOU FAIL TO FOLLOW THE LAW, YOUR
VERDICT WILL BE A MISCARRIAGE OF JUSTICE. THERE IS NO
REASON FOR FAILING TO FOLLOW THE LAW IN THIS CASE. ALL OF
US ARE DEPENDING UPON YOU TO MAKE A WISE AND LEGAL
DECISION IN THIS MATTER.

51

THIS CASE MUST BE DECIDED ONLY UPON THE EVIDENCE THAT

YOU HAVE HEARD FROM THE ANSWERS OF WITNESSES AND HAVE

SEEN IN THE FORM OF EXHIBITS IN EVIDENCE AND ON THESE
INSTRUCTIONS.
52

THIS CASE MUST NOT BE DECIDED FOR OR AGAINST ANYONE

BECAUSE YOU FEEL SORRY FOR ANYONE OR ARE ANGRY AT
ANYONE.

53

REMEMBER, THE LAWYERS ARE NOT ON TRIAL. YOUR FEELINGS

ABOUT THEM SHOULD NOT INFLUENCE YOUR DECISION IN THIS
CASE.

54

YOUR DUTY IS TO DETERMINE IF THE DEFENDANT IS GUILTY OR

NOT GUILTY IN ACCORD WITH THE LAW. IT IS THE JUDGE'S JOB TO
DETERMINE WHAT A PROPER SENTENCE WOULD BE IF THE
DEFENDANT IS GUILTY.

55

WHATEVER VERDICT YOU RENDER MUST BE UNANIMOUS. THAT

IS, EACH JUROR MUST AGREE TO THE SAME VERDICT.

56

IT IS ENTIRELY PROPER FOR A LAWYER TO TALK TO A WITNESS

ABOUT WHAT TESTIMONY THE WITNESS WOULD GIVE IF CALLED
TO THE COURTROOM. THE WITNESS SHOULD NOT BE
DISCREDITED BY TALKING TO A LAWYER ABOUT HIS TESTIMONY.

57

FEELINGS OF PREJUDICE, BIAS OR SYMPATHY ARE NOT EQUALLY

REASONABLE DOUBTS, AND THEY SHOULD NOT BE DISCUSSED BY
ANY OF YOU IN ANY WAY. YOUR VERDICT MUST BE BASED ON
YOUR VIEWS OF THE EVIDENCE AND/OR THE LAW CONTAINED IN
THESE INSTRUCTIONS.

58

DECIDING A VERDICT IS EXCLUSIVELY YOUR JOB. I CANNOT

PARTICIPATE IN THAT DECISION IN ANY WAY. PLEASE
DISREGARD ANYTHING I MAY HAVE SAID OR DONE THAT MADE
YOU THINK I PREFER ONE VERDICT OVER ANOTHER.

59

YOU WILL RENDER YOUR VERDICT ON A VERDICT FORM, WHICH

I'M HOLDING IN MY HAND, AND YOU WILL TAKE THIS VERDICT
FORM WITH YOU TO THE JURY ROOM. YOU'LL ALSO TAKE THE
EXHIBITS THAT HAVE BEEN INTRODUCED INTO EVIDENCE.

60

AT THE TOP OF THE VERDICT FORM IN THE UPPER RIGHT-HAND

CORNER IS THE NAME OF THE COURT AND THE CASE NUMBER,
FILE NUMBER. THAT'S CIRCUIT COURT FOR OSCEOLA COUNTY
AND THE CASE NUMBER IS IDENTIFIED AS THE FILE IN THE CASE.
THE NAMES OF THE PARTIES; STATE OF FLORIDA VERSUS
ALBERTO SANTIAGO SANCHEZ DEFUENTES.

61

IN THE CENTER OF THE PAGE IS THE TITLE OF THIS PIECE OF

PAPER, WHICH WILL BE ENTERED IN THE COURT FILE AFTER IT
HAS BEEN PROPERLY EXECUTED BY YOU; AND, THAT IS, THIS IS
THE VERDICT.

62

THERE ARE TWO CHOICES. YOU SELECT ONE OF THESE BY

MAKING A CHECK OR "X" MARK ON THE APPROPRIATE LINE.

63

IF YOU CHECK THE TOP LINE OF THE TWO CHOICES, YOUR

VERDICT WOULD BE, AS STATED ON THE VERDICT FORM, WE, THE
JURY, FIND THE DEFENDANT GUILTY OF D.U.I. MANSLAUGHTER,
AS CHARGED IN THE INFORMATION. IF YOU CHECK THE SECOND
LINE, YOUR VERDICT WOULD BE, AS STATED ON THE VERDICT
FORM, WE, THE JURY, FIND THE DEFENDANT NOT GUILTY.

64

AT THE BOTTOM OF THE PAGE IT SAYS SO SAY WE ALL, WHICH IS

SIMPLY A STATEMENT THAT THIS IS A UNANIMOUS VERDICT;
THIS IS THE VERDICT OF EACH OF YOU AND ALL OF YOU.

65

NOW, INCIDENTALLY, WHEN YOU COME BACK TO THE COURT

WITH A VERDICT IN THIS CASE, WE WILL--THE VERDICT WILL BE
READ HERE IN OPEN COURT. THAT'S CALLED PUBLISHING THE
VERDICT. YOU WILL BE PRESENT AT THAT TIME SO THAT YOU
HEAR THE VERDICT BEING READ HERE IN THE OPEN COURT,
FOLLOWING WHICH, I WILL ASK EACH OF YOU IF YOU CONCUR IN
THAT VERDICT.

66

THE VERDICT IS SIGNED BY ONE PERSON; THAT IS, THE

FOREPERSON CHOSEN BY YOU FROM YOUR NUMBER DURING
YOUR DELIBERATIONS.

67

AFTER YOU RETURN TO COURT, IN ORDER TO DETERMINE THAT IT

IS THE VERDICT OF ALL OF YOU, WHERE IT SAYS SO SAY WE ALL, I
WILL ASK EACH OF YOU IF THAT IS YOUR VERDICT. AS I SAID,

THAT'S CALLED POLLING THE JURY.

68

THE FOREPERSON YOU HAVE SELECTED SHOULD DATE--THERE'S

A DATE LINE AT THE VERY BOTTOM ON THE LEFT SIDE SAYING
DATED THIS BLANK DAY OF FEBRUARY. AND TODAY IS THE 19TH
DAY OF FEBRUARY. AND THEN AT THE LOWER RIGHT IS THE LINE
FOR THE SIGNATURE OF THE FOREPERSON.

69

IN JUST A FEW MOMENTS YOU WILL BE TAKEN BACK TO THE JURY

ROOM BY THE BAILIFF. THE FIRST THING YOU SHOULD DO IS
ELECT A FOREPERSON. THE FOREPERSON PRESIDES OVER YOUR
DELIBERATIONS IN THE MANNER THAT A CHAIRPERSON PRESIDES
OVER A MEETING.

70

IT IS THE FOREPERSON'S JOB TO SIGN AND DATE THE VERDICT

FORM WHEN ALL OF YOU HAVE AGREED ON A VERDICT IN THIS
CASE. THE FOREPERSON--WELL, WHEN YOU REACH A VERDICT,
YOU CAN KNOCK ON THE DOOR AND TELL THE BAILIFF, WHO
WILL BE SITTING OUTSIDE, THAT YOU HAVE REACHED A
VERDICT. AT THAT POINT, WE WILL REASSEMBLE HERE IN THE
COURTROOM AND HAVE YOU RETURN TO THE COURTROOM. THE
FOREPERSON WILL BRING THE VERDICT FORM BACK TO THE
COURTROOM.

71

WHEN YOU HAVE BEEN SEATED HERE, I WILL ASK YOU IF YOU
HAVE REACHED A VERDICT. THE FOREPERSON WILL TELL ME SO.
ONE OF THE BAILIFFS WILL GET THE VERDICT FORM FROM YOU,
BRING IT OVER AND GIVE IT TO ME SO THAT I CAN SEE THAT IT IS
PROPERLY EXECUTED, THAT YOU'VE SELECTED ONE OF THE TWO
VERDICTS AND THAT IT HAS BEEN DATED AND SIGNED.
FOLLOWING WHICH, I WILL HAND IT OVER TO THE CLERK HERE,
WHO WILL PUBLISH IT OR READ IT.

72

OF COURSE, EITHER A MAN OR WOMAN MAY BE THE FOREPERSON

OF A JURY.

73

YOUR VERDICT FINDING THE DEFENDANT EITHER GUILTY OR NOT

GUILTY MUST BE UNANIMOUS. THE VERDICT MUST BE THE
VERDICT OF EACH JUROR AS WELL AS THE JURY AS A WHOLE.

74

IN CLOSING, LET ME REMIND YOU THAT IT IS IMPORTANT THAT

YOU FOLLOW THE LAW SPELLED OUT IN THESE INSTRUCTIONS IN

DECIDING YOUR VERDICT. THERE ARE NO OTHER LAWS THAT
APPLY TO THIS CASE. EVEN IF YOU DO NOT LIKE THE LAWS THAT
MUST BE APPLIED, YOU MUST USE THEM. FOR TWO CENTURIES WE
HAVE AGREED TO A CONSTITUTION AND TO LIVE BY THE LAW.
NONE OF US HAS THE RIGHT TO VIOLATE THE RULES WE ALL
SHARE.
75

WITHOUT WAIVING ANY OBJECTIONS YOU MAY HAVE HAD TO

THE RULINGS I MADE ON THE INSTRUCTIONS THAT I READ, DID I
READ THEM AS I HAD RULED WAS TO BE DONE?

76

MR. ROFFINO: I BELIEVE SO.

77

MR. MORGAN: I BELIEVE SO, YOUR HONOR.

78

THE COURT: MRS. RUDD, YOU'RE THE ALTERNATE JUROR IN THIS

CASE. SO YOU ARE GOING TO HAVE TO STAY IN HERE WITH US.

79

DID YOU HAPPEN TO LEAVE ANYTHING IN THE JURY ROOM?

80

MRS. RUDD: I LEFT MY UMBRELLA.

81

THE COURT: OKAY. I TELL YOU WHAT. WOULD YOU MIND GOING
IN THERE AND GET YOUR UMBRELLA RIGHT NOW. AND I'M GOING
TO EXCUSE YOU FROM JURY SERVICE WITH OUR APPRECIATION.

82

YOU MAY STAY AROUND TO SEE WHAT VERDICT IS RENDERED OR

YOU MAY GO ON ABOUT YOUR BUSINESS. IF YOU WANT TO KNOW
WHAT THE VERDICT WAS AND YOU DON'T STAY TO FIND OUT,
YOU MAY CALL MY OFFICE AND FIND OUT, AND I'M SURE MY
SECRETARY WILL TELL YOU.

Honorable John W. Peck, Senior U.S. Circuit Judge for the Sixth Circuit, sitting
by designation

316.193. Driving under the influence; penalties

(1) A person is guilty of the offense of driving under the influence and is

subject to punishment as provided in subsection (2) if such person is driving or

in actual physical control of a vehicle within this state and; (a) The person is
under the influence of alcoholic beverages, any chemical substance set forth in
s. 877.111, or any substance controlled under chapter 893, when affected to the
extent that his normal faculties are impaired; or (b) The person has a blood
alcohol level of 0.10 percent or higher ... (3) Any person: (a) Who is in
violation of subsection (1); (b) Who operates a vehicle; and (c) Who, by reason
of such operation, causes: ... 3. The death of any human being is guilty of DUI
manslaughter, a felony of the second degree, punishable as provided in s.
775.082, s. 775.083, or s. 775.084.
2

After the direct appeal became final, Santiago began serving his sentence and
served it in full during the pendency of his petition for writ of habeas corpus in
the district court

316.1934. Presumption of impairment; testing methods

... (2) Upon the trial of any civil or criminal action or proceeding arising out of
acts alleged to have been committed by any person while driving, or in actual
physical control of, a vehicle while under the influence of alcoholic beverages
or controlled substances, when affected to the extent that his normal faculties
were impaired or to the extent that he was deprived of full possession of his
normal faculties, the results of any test administered in accordance with s.
316.1932 or s. 316.1933 and this section shall be admissible into evidence when
otherwise admissible, and the amount of alcohol in the person's blood at the
time alleged, as shown by chemical analysis of the person's blood, or by
chemical or physical test of the person's breath, shall give rise to the following
presumptions: ... (c) If there was at that time 0.10 percent or more by weight of
alcohol in the person's blood, that fact shall be prima facie evidence that the
person was under the influence of alcoholic beverages to the extent that his
normal faculties were impaired. Moreover, such person who has a blood
alcohol level of 0.10 percent or above is guilty of driving, or being in actual
physical control of, a motor vehicle, with an unlawful blood alcohol level. The
percent by weight of alcohol in the blood shall be based upon grams of alcohol
per 100 milliliters of blood. The foregoing provisions of this subsection shall
not be construed as limiting the introduction of any other competent evidence
bearing upon the question whether the person was under the influence of
alcoholic beverages to the extent that his normal faculties were impaired.

In Wilhelm, the Court held that a jury instruction based upon Sec. 316.1934(2)
(c), Florida Statutes (1986), created an unconstitutional mandatory rebuttable
presumption because the words "prima facie" in a jury instruction would not be
understood by the reasonable juror. Thus, the juror would be forced to guess at

its meaning from the context in which it is used and in this case, that context is
an explanation in the jury instructions of what the jury can and cannot
"presume." The jury may have understood the instruction as an irrebuttable
mandatory presumption
5

In Rolle, the Florida Supreme Court held that a jury instruction which contains
evidence that a defendant had a blood alcohol level of .10% or more "would be
sufficient by itself to establish" that the defendant was impaired and the
instruction did not create an unconstitutional mandatory rebuttable presumption
on the issue of impairment

The complete jury charge given by the trial judge in Santiago's criminal trial is
attached to this opinion as an appendix