OFFICE OF THE STATE ATTORNEY ELEVENTH JUDICIAL CIRCUIT STATE ATTORNEY i INTEROFFICE MEMORANDUM 1 TO: — HOWARD POHL DATE: APRIL 29, 2010 CHIEF ASSISTANT FROM: DAVID. GILBERT ‘TRAFFIC DEATH OF SENIOR TRIAL COUNSEL "TATIANA FURRY oy On January 21, 2009, at approximately 4:00 AM. a collision between two vehicles occurred on Tamiami Trail, approximately four (4) miles west of Krome Avenue. One vehicle, a pickup truck, was driven by Tatiana Furry. ‘The second vehicle was an SUV occupied by four (4) members of the Miccosukee Tribe of Indians, with Kent Billie as driver. The collision was head-on, causing the death of Tatiana Furry. Kent Billie and passenger Jared Tiger were seriously injured, and were airifed to Jackson Memorial Hospital. Passenger Travis Osceola was transported by rescue Kendall Regional Hospital. Passenger Clifton Huggins was treated on the scene by Rescue and was released. The Miccosukee Police Department responded to the scene and conducted the investigation. Florida Highway Patrol was not offically notified of the collision. Jurisdictional issues arising from this circumstance were ironed out and, since this collision; Florida Highway Patrol is the designated investigative agency for collisions on Tarniami Trail in Miami-Dade County. The involvement of the Miccosukee Police Department created investigative problems for this office. The Miccosukee Police took the position that their records, and all evidence collected, were Tribal documents and were not subject to disclosure to this office or anyone else, because of the Tribe's sovereign immunity. T was able to subpoena two of the officers involved in the investigation, only after serving them outside of the Miccosukee Tribal Lands. Their statements were attended by a lawyer for the Miocosukee Tribe of Indians. Neither officer brought any police reports or photographs and claimed that they were not given permission by the appropriate Tribal authorities to bring them. Approximately a week after the collision, Florida Highway Patrol investigators responded to the scene of the collision. They were able to observe sufficient physical evidence on the roadway to do a preliminary reconstruction of the collision events. They were also able to locate the storage facility for Ms. Furry’s vehicle and examine it. In addition, the Miccosukee Police Department allowed the FHP investigators to review their scene photographs, but would not provide them with copies for the FHP files, or for my review. Based on everything they were able to obtain, FHP Corporal Jim Card was able to reconstruct the collision sufficiently to each a conclusion about the collision events. However, since these conclusions were not based on first hand information, the investigation continued in an effort to get the police reports, photographs, etc. The new Chief of the Miccosukee Police Department, Thomas Loughren, agreed that our office was entitled to the reports and evidence. Eventually, the Miccosukee Police file was released to this office along with photographs and access to any physical evidence. It was learned that blood samples taken from Kent Billie were retrieved by the Miccosukee Police Department pursuant to a search warrant for Jackson Memorial Please Recycle soon ee AGHospital issued by the Miccosukee Tribal Court. The tubes of blood were tumed over to the University of ‘Miami Toxicology Laboratory for analysis. i WITNESSES The only known eyewitnesses were the occupants of Kent Billie's vehicle. Those persons, Clifton { Huggins, Travis Osceola, and Jared Tiger, are all members of the Miccosukee Tribe of Indians. As such, they cannot be subpoenaed while on Tribal lands. All three are represented by Guy Lewis, Esq. He offered to present them for testimony provided that the State would grant them immunity for their testimony. I wrote a letter to him requesting a proffer of their testimony so that I could make a determination on a grant of immunity. | | received no response, no proffer was ever made, so they have not been interviewed. According to the Miccosukee Police Report, Clifton Huggins told Office Abner Rodriguez, that Kent Billie was driving eastbound on Tamiami Trail with the intent of getting gas at Dade Comers (located at the } intersection of Krome Avenue and Tamiami Trail). He heard Kent Billie yell, “Hold on!” and Huggins saw headlights coming at him in their lane. Officer Rodriguez noted a strong odor of alcohol coming from Clifton Huggins. Officer Kenneth LeMeur talked to all three passengers of the Billie vehicle. Jared Tiger and Travis Osceola told him the same version of events that Clifton Huggins told Officer Alvarez. Clifton Huggins told Officer LeMeur that he did not know how the collision occurred. Officer LeMeur noted a strong odor alcohol ‘coming from all three men. ALEJANDRO AROCHA ~ Alejandro Arocha is an emergency medical technician with the Miami Dade Fire Rescue Department. He treated Kent Billie after Mr. Billie was removed from his vehicle, Mr. Billie was s the entire time and did not make any statements to him. During the treatment process the contents of Mr. Billie's stomach disgorged and Mr, Arocha smelled a moderate smell of alcohol, He remembered there | were Miccosukee Police Officers on the scene, but he cannot provide any names because they were wearing Jackets that covered their name plates. None of the police officers on the scene asked him, or to his knowledge any other EMT, to draw blood. He said there was a period of time when they were waiting for the helicopter to arrive when blood could have been drawn of requested. CAPTAIN MICHELE STEELE — Michele Steele is a captain with the Miami Dade Fire Rescue Department. She responded to the scene. Captain Steele was involved in treating the passengers in the vehicle. One of them told her that he was behind the driver and that the other car came into their lane. She smelled alcohol on this individual's breath. Capt. Steel remembers that there were two Miccosukee Officers on the scene but cannot give me their names. At one point she asked one of them if they wanted blood drawn on anyone and was told that they would get blood at the hospital. (This contradicts the report of Det. Russell Barnes who wrote that he asked Fire/Rescue to drawn blood but was told thatthe patient was critical therefore they could not comply with his request. Det. Bames later testified in a swom statement to me that he did not have blood drawn at the hospital because he did not believe he had legal authority to request blood once the suspect was removed from the scene.) SCENE AND EVIDENCE The photographs, taken by the Miccosukee Police Department, show two severely damaged vehicles in the roadway. One is @ blue Ford Expedition. It is lying on the driver's side, with its rear end resting on the guardrail. The vehicle is lying across the eastbound lane and the emergency lane of Tamiami Trail. The front end is severely damaged. The front driver's side frame is bent downwards. The roof shows evidence that the “Jaw of life” were used to remove someone from the vehicle. The Ford is the easternmost vehicle of the two. oS Please RooyoThe second vehicle is Silver Nissan Frontier pickup truck. It is located in the westbound lane facing, east. Ithas severe front end damage indicative of a virtually dinect front end collision. The front frame is bent upwards. The Nissan is the westemmost vehicle ofthe two. In the photographs, orange and blue paint spots on the road surface can be seen to the south ofthe truck. In addition there is orange and blue paint running down the side of the truck bed on the driver's side, and inside the truck bed. The orange and blue paint on the truck appears to match the paint on the road surface. Open cans of orange and blue paint cans are on the Scene, in and around the pickup truck. ‘The covered body of Tatiana Furry is lying between the two front seats, such that her feet are pointing towards the left front and her head is pointing towards the right rear. Between the two vehicles, the ground is littered with car parts. The road surface is scarred with heavy ‘gouge marks in four places. Three of the gouge marks are in the middle ofthe eastbound lane. One gouge mark is a curving mark in the westbound lane right next tothe yellow lane divider stripe. All ofthe gouge marks are located between the two vehicles. The Miccosukee Police Investigators spray painted the letters “AOI” for “Area of Impact” on the gouge mark near the yellow dividing stripe. Before the Office of the State Attomey was able to obtain possession of the police reports and photographs, FHP Corporal James Card and Sergeant Timothy Brown were able to examine the road surface and the vehicles involved in the collision. ‘Soon thereafter, they met with the Miccasukee Police investigators who showed them the scene photographs, but they were not given copies. Based upon this information, Cpl Card was able to reconstruct the positions of the vehicles atthe time of collision. ‘According to Cpl. Card, the two vehicles struck left headlight to left headlight. ‘The bent frames indicate that the Nissan (frame bent up) rode up on the Ford (frame bent down). This would force the frame of the Ford down onto the road where it would create the most severe gouging from the collision. Therefore, the gouge ‘marks in the center of the eastbound lane place the Ford in that lane, with its left side in the center of the lane. This would be consistent with the beginning of an evasive maneuver towards the shoulder of the road. ‘The evasive maneuver was further buttressed by the fic that post-colision the Ford continued toward the shoulder and wound up partially on the guardrail. The less severe gouge on the inner edge of the westbound lane would ‘come from the right side of the Nissan, which had its left side raised as it rode up onto the Ford. This gouge curves because the Nissan would almost instantly start to spin counterclockwise (as would the Ford). The inescapable conclusion is that the westbound Nissan driven by Tatiana Furry crossed the center line and struck the eastbound Ford Expedition. Physies dictates that the remaining energy after collision would propel the vehicles in their original direction. Since the Ford is east of the gouge marks, and the Nissan is west of the gouge marks we have further indication of their directions of travel prior to impact. When the Nissan started it counterclockwise spin, the contents of the truck bed would have been violently thrown against the driver’s side of the truck bed. Paint cans in the bed of the truck could easily explode open, throwing paint against the driver’s side of the truck bed and, if sufficient quantity existed, outside the truck and onto the road surface. This would account for the paint described previously. Kent Billic was removed by Fire Rescue from the driver's seat where he was trapped. Miccosukee Police did not draw blood, despite the smell of alcohol emanating from him. Blood was drawn by the hospital for medical purposes. The Miccosukee Police obtained a search warrant for the blood from the Miccosukee Tribal Court. A Miccosukee Tribal Court search warrant has no legal efficacy outside the Miccosukee Tribal Court's jurisdiction. Therefore, the bfood was seized in violation of Kent Billie's Fourth Amendment rights and would not be admissible in court. The Micosukee Police submitted one of the several tubes of blood to Labcorp for analysis. ‘The results from that analysis showed no alcohol present. However there was a metabolite for ‘Marijuana present. A metabolite is the remnant of substance that has been processed by the body and is no longer psychoactive. Therefore, it cannot be said that Kent Billie was under the influence of Marijuana at the time of the crash. Also present was Alprazolam which isthe chemical name for Xanax.‘The Miccosukeo Police Department, at my request, brought the blood, for analysis to the University of Miami Toxicology lab run by Chip Walls.” This happened earlier this year after I leamed of their existence through the police reports. The toxicology results from two (2) separate tubes of blood showed no alcohol present. A third blood tube labeled “Unknown White Male”, with the same patient number as Kent Billie, but a different date of birth revealed a blood alcohol concentration (BAC) of 0.04. (Pictures of the blood tubes are in the file). That tube was the earliest one drawn at the hospital, which could explain the lack of name, but does not explain the th. Presumptive tests for cocaine and marijuana were positive. Confirmatory tests were not conducted because it would be an added expense for no purpose. Again, the blood was seized in violation of Kent Billie's Fourth Amendment Rights and would not be admissible in court ‘The autopsy of Tatiana Furry found a BAC of 0.32, four (4) times the legal limit. ‘The Miccosukee Police removed data from the control module in Kent Billie's vehicle. This is ‘computer information that is recorded by a vehicle, from the monitoring of various functions (depending on manufacturer) but can include speed, braking, acceleration, etc. The computer chip keeps the last several seconds of motor operation. It continually rewrites over the previous information, but stops that process when the airbag is deployed. Ifthe engine is not restarted after collision, the last several seconds will be aveilable for download. This device is called ether an Event Data Recorder (EDR), Computer Data Recorder (CDR), Restraint Control Module (RCM), or Airbag Control Module (ACM) depending upon manufacturer. An analysis of the module in Mr. Billie’s vehicle showed that he was speeding in excess of 80 MPH just before the coll CONCLUSION It is my opinion that we cannot file any criminal charges against Kent Billie for the death of Tatiana Fury. As stated previously, the manner in which the search warrant was issued would render Mr. Billie's blood useless as evidence because it was seized illegally. However, even if usable as evidence we would still not be able to file homicide charges. DUI Homicide, based upon the drugs found in his system, would require that the State prove beyond a reasonable doubt that some negligence on the part of Kent Billie contributed to the cause of the collision that took Tatiana Furry’s life. Magaw v. State, 537 So.2d 564 (Fla. 1989), Smalridge v ‘State, 904 So.2d 601 (I" DCA Fla. 2005), Although he was speeding, we cannot demonstrate that his speeding ‘contributed to the collision, because Ms. Furry was within his lane of travel at the time of the collision. We can speculate as to the reasons she was there, or for how long, but that would not constitute proof. There is no physical evidence to address these issues. Al! doubts must be resolved in the defendant's favor; therefore, for iminal legal purposes it must be assumed she came into his lane with insufficient time for him to avoid the collision. A caso of Vehicular Homicide could be argued because Kent Billio was driving at an excessive speed with intoxicating drugs in his system, couching such conduct as recklessness. However, it is a defense to the charge of Vehicular Homicide if the victim was the sole cause of the collision. Reaves v State, 979 So.2d 1066 (DCA Fla, 2008) We ean prove no other cause forthe clison other than Ms. Fury’s presence in te wrong ‘A misdemeanor charge of reckless driving or a traffic infraction for Speeding cannot be filed as the statue of limitations for each of those charges is one year. Therefore, [recommend that no charges be filed against Kent Billie.