County Case No.: TT99-003693-XX
Appeal No.: CC-12
BARRY DEAN BYRD,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
_________________
OPINION OF THE COURT
This is an appeal from the county court of Polk County, Judge Anne Kaylor presiding. Appellant Barry Dean Byrd appeals certain rulings on defense motions below. This court has jurisdiction. Fla. R. App. P. 9.030. Affirmed.
I.
A Florida Highway Patrol officer observed Byrd leave the area of a local bar on the evening of June 17, 1999 at approximately 10:20 p.m. He noticed that the vehicle's tag light was not illuminated. He followed the vehicle for approximately a half mile and observed that it was traveling five miles over the speed limit. The officer recalled that he had issued a warning for the tag light violation some fifteen days earlier. He issued a warning for unlawful speed, and a citation for the tag light violation.
During the encounter, the officer observed that the driver, Byrd, had bloodshot eyes, slurred speech, and smelled of alcohol. During the initial stages of the encounter, Byrd made a statement to the officer. At the suppression hearing, the trial judge found that the statement was spontaneous and admitted it into evidence.
The officer asked Byrd to step out of the vehicle to perform field sobriety tests. Byrd was unsteady on his feet and failed to satisfactorily perform the tests. When asked, he refused to submit to a blood alcohol test. The officer arrested Byrd and charged him with DUI.
Prior to trial, Byrd moved to suppress his statement to the officer. The trial judge denied the motion. The matter proceeded to trial. At trial, defense counsel moved to allow Byrd to present an alternate jury instruction. The trial judge denied the motion and the jury returned a guilty verdict using the standard jury instruction. Byrd filed this timely appeal seeking review of the rulings which deny suppression of the statement, and deny use of alternate jury instructions.
II.
This court's decision turns on the following issues: 1) whether the trial judge erred by denying Byrd's motion to suppress; and 2) whether the trial judge erred by failing to use Byrd's proposed jury instruction.
III.
At the outset, the court acknowledges that the initial brief does not address all of the issues presented in the hearing on the motion to suppress. Byrd argues on appeal that the trial judge erred when she failed to grant his motion to suppress a statement made to the officer. He asserts that the statement was made in direct response to the officer's questions regarding his blood alcohol test, and before receiving Miranda warnings.
A trial judge's ruling on a motion to suppress is presumptively correct and will be affirmed if based upon competent substantial evidence. Porter v. State, 765 So. 2d 76, 77 (Fla. 2000); State v. Chaney,744 So. 2d 595 (Fla. 2d DCA 1999). The trial judge concluded, based on testimony presented at the hearing, the statement was spontaneous. (R. at 44) Such statements are admissible as exceptions to the hearsay rule. 90.803(2), Fla. Stat. (1999). Accordingly, the motion was properly denied.
Byrd next argues that the trial judge was compelled to use an alternate jury instruction. A review of the transcript shows that defense counsel failed to make a contemporaneous objection on the record. Therefore, the matter is not preserved for appeal, and the ruling must be affirmed. Bertolloti v. Dugger, 514 So. 2d 1095 (Fla. 1987).
It is ORDERED that the rulings below are AFFIRMED.
ORDERED February 2001.
Charles B. Curry
Chief Judge