Cloyd v. State

943 So.2d 149

Thomas Porter CLOYD, Appellant, v. The STATE of Florida, Appellee.

No. 3D05-1816.

District Court of Appeal of Florida, Third District.

July 12, 2006.

Rehearing and Rehearing En Banc Denied December 22, 2006.

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William L. Richey; Daniel Foodman and Eugene H. Lindsey, Miami; and James K. Rubin, North Miami Beach, for appellant.

Charles J. Crist, Jr., Attorney General, and Paulette R. Taylor, Assistant Attorney General, for appellees.

Before SUAREZ and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.

ROTHENBERG, Judge.

Christopher Scott Hughes ("Hughes"), a pilot for a commercial airline, and Thomas Porter Cloyd ("Cloyd"), a copilot for the same airline, were criminally prosecuted as codefendants and convicted of operating an aircraft while intoxicated or in a careless or reckless manner, in violation of section 860.13, Florida Statutes (2002). As Hughes and Cloyd have filed separate appeals, we have reviewed each separately. After a careful review of the record and the issues raised by Cloyd, we affirm, and this opinion reflects our findings as to Cloyd.

THE EVIDENCE

A brief review of the evidence is as follows. Hughes and Cloyd were scheduled to fly a commercial aircraft with approximately 125 passengers onboard, from Miami International Airport to Phoenix, Arizona, at 10:38 a.m., on July 1, 2002. Less than forty minutes prior to departure, Cloyd attempted to pass through an airport security checkpoint, carrying a cup of coffee. When security personnel stopped him and informed him that he could not pass through with the coffee, Cloyd became belligerent, demanded to see the regulations which prohibited the conduct, and used profanity. He did eventually dispose of the coffee. Meanwhile, when Hughes passed through the checkpoint, security personnel noticed an odor of an alcoholic beverage coming from Hughes, and asked him if he had been drinking. Hughes denied that he had been drinking. Security personnel allowed the defendants to continue to their gate, but reported their observations to the Transportation Security Administration ("TSA") and the defendants' airline. The TSA notified the Miami-Dade Police Department, and a number of police officers who worked at the airport responded. When they arrived, the defendants were in the cockpit of the aircraft, the jet way had been pulled back from the aircraft, and the aircraft was connected to the tug that pushes it out from the gate. The officers stopped the aircraft by ordering the tug driver to return the aircraft to the gate.

Sergeant Steve Leibowitz, who conducted an examination of the defendants, noticed that each had a flushed face, bloodshot eyes, and the odor of an alcoholic beverage on his breath. Based upon his observations, Sergeant Leibowitz performed a horizontal gaze nystagmus test ("HGN test") on each of the defendants, and testified that the HGN tests indicated that each was impaired, with an estimated breath alcohol level of approximately .10 percent. He, therefore, arranged for the defendants to be transported to the police station for further testing.

Officer Harold Ruffner, who conducted a breath test of the defendants at the station, testified that Cloyd's first breath result was .1091 and his second was .09; while Hughes' readings were .084 and .081. H. Chip Wells, a forensic toxicologist, testified that, based upon the lowest of Cloyd's breathalyzer test results, he calculated through retrograde extrapolation that Cloyd's breath alcohol content was between .121 and .15; and that, based upon Hughes' lowest breathalyzer result, Hughes' breath alcohol content was between .113 and .145, when they were onboard the aircraft.

In addition to the observations of the security personnel and law enforcement, the results of the HGN tests, the breathalyzer results, and the forensic toxicologist's expert opinion regarding the defendants' breath alcohol at the time they were onboard the aircraft, the State introduced the defendants' bar tab from the night before, a videotape of them at the bar being served, and the testimony of witnesses. This evidence corroborated the observations and test results regarding the defendants' consumption of alcohol. The night before this scheduled flight, the defendants shared a bottle of wine with two crew members at dinner, and each of the defendants also drank a martini. From the restaurant, they proceeded to Mr. Moe's Restaurant and Bar ("Moe's") where they opened a bar tab at approximately 10:49 p.m. From 10:49 at night until after 5:00 the next morning, they drank at Moe's, ordering seven 34-ounce mugs of beer, eight 16-ounce mugs of beer, a martini, and a burger. The two crew members, who were with the defendants, consumed one 16-ounce beer, the martini, and the burger, and left before midnight. The videotape showed the defendants continuously drinking throughout the night, and leaving just after 5:00 a.m., with the remainder of their beers, which they poured into a plastic cup carried by Cloyd. The evidence also established that Cloyd, Hughes, and the crew arrived at the airport late because Hughes had overslept.

Over defense objection, the State elicited testimony regarding the .08 blood alcohol limitation for operating a motor vehicle contained in section 316.193, Florida Statutes, even though the statute Cloyd and Hughes were charged with violating, section 360.13, contains no such limitation. Also, over defense objection, the State's witnesses were permitted to discuss the .04 civil standard contained in the federal aviation regulations, whereas the defense was precluded from introducing the .10 presumption of impairment contained in the federal criminal code, 18 U.S.C. § 343 (1988).

Whether the defendants were operating the aircraft before the police intervened was a matter hotly disputed at trial. The State's commercial aviation expert testified that he considered the pilots to be operating the aircraft when they activated and checked systems prior to departure, and he testified as to the extensive preflight inspections and systems checks that the pilots were required to complete. The pilots must enter critical data into the aircraft's computer, including the flight plan of the route, performance data, takeoff speeds, fuel load, and radio configurations for the navigation radio. The information entered into the computer is then displayed in the cockpit for the pilots to refer to when flying the aircraft. The aviation expert testified that he would consider it careless and reckless to perform any of these functions while under the influence of alcohol because they are critical for safety. He testified that the captain gives permission to the tug to begin the push back of the aircraft, and that, although the driver of the tug is physically controlling the movement of the aircraft at that point, the captain is in actual control of the aircraft.

The driver of the tug testified that once the aircraft is hooked up to the tug, he has control of the aircraft; to his knowledge the pilot cannot steer the aircraft; and its engines are not on. He did admit, however, on cross-examination, that, when he is operating the tug, he has to wear a headset to communicate with the pilot and copilot, and cannot begin the push back until the pilot instructs him to do so.

The defendants moved for a judgment of acquittal, arguing that the evidence demonstrated that they did not operate or control the aircraft. The trial court denied their motions. The defendants requested a jury instruction on "inoperability," arguing that the evidence established that the aircraft could not be flown while it was attached to the tug. Cloyd, but not Hughes, additionally requested that the court instruct the jury on attempt. Both requests were denied by the trial court. Over the defendants' objections, the court granted the State's request for an instruction on principals.

In closing argument, the State argued, over defense objection, that the defendants could be found guilty of violating section 860.13 under two separate theories: (1) by being under the influence of an alcoholic beverage or (2) by operating the aircraft in a careless or reckless manner. The State told the jury that it could find the defendants guilty even if it did not have unanimity regarding the specific theory of prosecution. The defendants moved for mistrial or, in the alternative, requested a specific instruction, requiring a unanimous verdict as to the theory upon which their verdict was based, and requested that the jury be given a special verdict form in order to identify its verdict as to each of the two theories of prosecution. The trial court denied these motions. The jury returned a guilty verdict, and the defendants were sentenced.

PREEMPTION

The first issue we address in this appeal is whether the trial court erred in denying Cloyd's motion to dismiss for lack of jurisdiction. It is Cloyd's position that the federal government has preempted all state action regarding the physical qualifications and capacity of a federally certified pilot. Prior to trial, the defendants moved to dismiss the charges based upon federal preemption. When the trial court denied the motion, and the defendants sought review with this court by filing a petition for writ of prohibition, this court denied the writ without opinion, and the defendants petitioned the federal court for a writ of habeas corpus. The United States District Court for the Southern District of Florida granted the petition, finding that the state action was preempted. Hughes v. Eleventh Judicial Circuit of Fla., 274 F.Supp.2d 1334 (S.D.Fla.2003). On appeal, the Eleventh Circuit Court of Appeals reversed the district court's opinion, and held that the district court should have abstained from hearing the claim because the defendants' preemption claim was not facially...