County Case Nos.
TT98-06223-XX
TT98-06224-XX

Appeal No. BB-41
March 28, 2000

JOSEPH DAVIS,

Appellant,

vs.

STATE OF FLORIDA,

Appellee.

__________________________

This is an appeal from the county court of Polk County, Judge Mary C. Green presiding. A jury convicted Appellant, Joseph Davis, of driving under the influence in violation of section 316.193, Florida Statutes (1999). He seeks reversal of two evidentiary rulings. This court has jurisdiction. Fla. R. App. P. 9.030(c). The ruling of the county court is affirmed.

Polk County Sheriff’s Deputy Brian Russell observed Appellant’s vehicle swerving as it traveled west on Highway 92 in the late evening hours of December 23, 1998. Deputy Russell stopped Appellant and asked for his license and registration. The officer observed Appellant’s slurred speech, and the odor of alcoholic beverage. The officer also noticed that two other people occupied the vehicle, and asked Appellant to step out of the vehicle. Appellant stumbled as he exited the vehicle and he was unsteady on his feet. Shortly after he stepped out of the vehicle, Appellant first stated he had not had anything to drink, and then stated he had had only two beers. (R. at 68) The officer then conducted field tests and subsequently placed Appellant under arrest.

At trial, the officer testified regarding Appellant’s statement. Defense counsel objected arguing that the statement should not be admitted because Appellant was in custody, but had not been advised of his Miranda rights. The state countered that the evidence did not establish that Appellant was in custody. The trial judge overruled the objection. During cross-examination of the officer, defense counsel attempted to elicit the officer’s opinion whether Appellant understood the officer’s intention as the officer gave field test instructions. The trial judge sustained the state’s objection that the question attempted to elicit improper opinion testimony. Appellant seeks review of both rulings.

Appellant raises two issues regarding the admission and exclusion of evidence. All evidence is relevant and admissible which tends to prove or disprove material facts. §§ 90.401 and 90.402 Fla. Stat. (1999). A confession is admissible evidence when it is voluntary and not the result of improper influence. Traylor v. State, 596 So. 2d 957, 964 (Fla. 1992). The question of whether a confession is voluntary is determined by the trial judge given the totality of the circumstances. Id. Rulings on the admission of evidence are presumptively correct and will not be overturned without a showing of abuse of discretion. Blanco v. State, 452 So. 2d 520, 522 (Fla. 1984).

Appellant first argues that the trial judge improperly restricted cross-examination. Appellant reasons that this question was a proper attempt to impeach prior testimony which established that Appellant had failed to follow the officer’s instructions. Appellee argues, and this court agrees, that the question attempted to elicit testimony which was not probative of any issue below. Appellant next argues that Appellant’s statement was an admission made while in custody and without the benefit of Miranda warnings. The state argues that the facts do not establish that Appellant was in custody. Thus, the statement was voluntary and admissible.

A confession is voluntary if the circumstances show that law enforcement did not assert improper or undue influence over the declarant’s mind. Traylor, 596 So. 2d at 964. In the matter before the court, Appellant was stopped at night on the roadside by a single police officer. He was in the company of two passengers when the officer asked him to step out of the vehicle. The officer had not stated why he made the stop or why he asked Appellant to exit the vehicle. Appellant stumbled while exiting and stood unsteady on his feet as he told the officer first that he drank nothing that evening, and then that he had had two beers. The trial judge concluded that these facts do not establish custodial interrogation giving rise to constitutional protections. Further, Appellant has failed to present facts which establish an abuse of discretion.

Accordingly, it is ORDERED that the rulings of the county court are AFFIRMED.

ORDERED 28 March 2000.

Charles B. Curry

Chief Judge