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Two drunken drivers. Two dead pedestrians. Opposite outcomes.
One driver is doing 12 years in prison, the other is free. Justice is done.
By RICHARD BOCKMAN
Published July 25, 2004
TAMPA - Mario Zertuche killed a pedestrian who wore tennis shoes. Nicole Bailey killed a pedestrian who was barefoot.
In each crash, the driver's blood alcohol exceeded 0.08, the level at which state law presumes intoxication. Both drivers were charged with DUI manslaughter.
Zertuche's blood alcohol was estimated at 0.13, his first DUI; Bailey's blood alcohol registered 0.27, her second DUI.
Guess which driver got 10 days in jail and which got 12 years in prison. Guess again.
When a drunken driver kills somebody, Florida cracks tougher than most states. But no matter how legislators craft law, they cannot foresee every variable. Justice, ethereal and confounding, can turn on something as unpredictable as whether the victim wore shoes.
* * *
Deep into a Friday night, Aug. 31, 2001, Nicole Marie Bailey was getting drunk at Barnacles, a restaurant and bar in Brandon. With a friend, she ran two tabs and paid both by Visa. Bailey, who weighed 130 pounds, closed the first tab - six mixed drinks and a shot - just after midnight. The second tab - three drinks and a shot - she closed at 1:45 a.m.
Minutes later and less than a mile down unlit Lumsden Road, Bailey's Honda Accord blew through a man on foot. She didn't brake; she didn't see anything amiss until his head and torso crashed through her windshield and landed on her floorboard.
Bailey drove another quarter-mile before pulling off into a lighted drive.
Motorist Brian Ziegler, with his 6-month-old asleep in a car seat, stopped to help.
Bailey was hysterical, covered in so much of the pedestrian's blood that Ziegler couldn't tell the color of her clothes. He called 911. Bailey kept saying, "He just walked out in front of me," Ziegler said, and told him she was in trouble; she already had one DUI and had just come from a bar.
Before deputies cordoned off the road, Ziegler said at least a half-dozen vehicles drove through the pedestrian's severed body parts, underwear and shorts, scattered some 500 feet along Lumsden.
A deputy from the DUI squad noted signs that Bailey was impaired: "Bloodshot eyes, slurred speech, strong odor of alcoholic beverage. Admitted to drinking alcohol." Bailey volunteered that she had been drinking rum and Diet Cokes.
An hour late getting off work, Gisella Nessler passed the police cars and commotion on Lumsden, a few blocks from home. The lights were on but her husband, body shop repairman George Nessler, was gone. On the kitchen counter, a glass of water, the ice not melted. Asleep in her room, home alone, their 14-month-old, Tiffany Marie.
In a previous life, George Nessler briefly starred in the soap opera that was the Amy Fisher case. Nessler helped send body shop owner Joey Buttafuoco to jail a decade ago, telling how his boss bragged on his sexual exploits with the underage girl.
Now, far from the bright lights of the Geraldo show, George Nessler was missing. Mrs. Nessler called her mother-in-law to come watch the baby and went searching for her husband. She figured he had gone looking for her: Not only was she late, she had not returned the message he left on her cell phone about 1:30 a.m.; she had turned it off, the battery was low.
Mrs. Nessler brought a photo of her husband to the corner of Lumsden and Heather Lakes Boulevard. Deputies suggested she go home; they would be in touch if it turned out he was the dead pedestrian.
They came to her door at 4:15 a.m.
Traffic homicide detective Fred Ward interviewed the bartenders at Barnacles who served Bailey - they remembered her, she was a regular - and collected the receipts detailing the drinks she paid for. Ward's 50-page report concluded:
"There are no issues involving road design or vehicle design. No view obstructions exist. The only issue to take into consideration is the fact that Nicole Marie Bailey had been drinking alcoholic beverages just before the crash and her blood alcohol level was .270."
For killing 43-year-old George Nessler, Bailey was charged with DUI manslaughter.
* * *
Mario Luna Zertuche started his Sunday evening drinking Coors Lights at a wet T-shirt contest at Shephard's, on Clearwater Beach. He drove back to his apartment near the University of South Florida, changed clothes and headed down well-lit Fowler Avenue for some Chinese food. It was about 8:45 p.m., Aug. 18, 2002.
Approaching 17th Street, Zertuche noticed a woman pushing a baby stroller across the four westbound lanes of Fowler, toward a Texaco. She wasn't crossing at an intersection or crosswalk.
In the antiseptic language of the police report, an officer wrote, "The pedestrian walked into the path of oncoming traffic and was struck by veh. #1."
The right front of Zertuche's Toyota Supra hurled Lynda Cenatus some 80 feet down Fowler. The stroller ended up on its side near the drive of the gas station, her 7-month-old strapped in, crying but unhurt. A few minutes later, Zertuche walked up, told witnesses he was the driver, and said he was sorry.
A police officer noted Zertuche's glassy eyes and the odor of alcohol; he could not keep his balance walking a line. Experts estimated his blood alcohol at 0.13 when he hit Cenatus.
Police reconstructed the point of impact by using eyewitness accounts, Cenatus' shoes and hairpiece in the road and where the stroller ended up. Tampa police Detective Dave Rochelle concluded:
"The defendant had 394.64 feet to react to the already perceived problem ahead. This is one and one third football fields to make a decision. There must be some reason that the defendant made a poor decision and was very slow to react. ALCOHOL IMPAIRMENT!!!"
For killing 27-year-old Lynda Cenatus, Zertuche was charged with DUI manslaughter.
* * *
Used to be, an intoxicated driver involved in a fatal traffic accident was presumed guilty of DUI manslaughter - even if he wasn't at fault. He could be stopped at a red light, get rear-ended and go to prison for the death of the sober driver who caused the crash.
No more. The Legislature changed the law to require proof that the intoxicated driver "caused or contributed to" the accident. In 1989, the Florida Supreme Court interpreted the new standard:
The state doesn't have to prove the driver's drinking caused the accident; it's enough to show that "any deviation or lack of care on the part of a driver under the influence" contributed.
A sober victim could be 99 percent to blame and the intoxicated driver still could be called to account.
* * *
Prosecuting Zertuche was straightforward. Assistant State Attorney John Rogers called eyewitnesses, officers who related Zertuche's admissions and Detective Rochelle. The stroller, pushed clear in a mother's dying act, spoke for itself.
Defense attorney Harvey Hyman hired Rick Galdos, a mechanical engineer, who opined that even had Zertuche been sober, he could not have avoided the pedestrian because she darted in front of him. It was all her fault.
The prosecutor reminded Galdos that Zertuche was intoxicated, his reflexes slowed, and asked if a sober driver might have reacted better: "You're saying there is no way in the world that he still could not have avoided this crash?" Rogers asked.
"That's right," Galdos said.
Jurors didn't believe it. They convicted Zertuche in less than two hours.
"I had to convince the jury it was 100 percent the woman's fault," Hyman said. "Come on. How can anybody be 100 percent at fault when there are two people involved, and one of them is driving a car and the other is pushing a baby carriage across the street?
"I think the jury believed my client was less at fault than the woman . . . but you have to convict him if you find any percentage of fault at all."
With previous convictions for burglary and aggravated battery, Zertuche's sentencing guidelines called for 12 to 15 years for DUI manslaughter. On March 22, Circuit Judge Anthony Black sentenced him to 12 years in prison, plus three years probation.
* * *
Assistant State Attorney Donna Hanes was in a box. In Nicole Bailey, she had a driver more than triple the legal limit, but she couldn't prove Bailey did anything to contribute to the accident.
Had she exceeded the 45 mph speed limit? Holes in the evidence kept investigators from approximating the point of impact and estimating Bailey's speed.
Pedestrians hit by fast-moving cars typically are blown out of their shoes; Nessler was barefoot. There were no scuff marks in the road. Bailey didn't see him, didn't brake and left no skid marks.
Investigators sometimes estimate vehicle speed by considering how far the body was thrown. Nessler's body ended up inside Bailey's car.
Prosecutor Hanes consulted Burton Eno, a mechanical engineer and accident reconstruction expert. He declined to offer an opinion.
"There wasn't enough evidence to work into the science," Eno said. "My experience tells me we're talking about high speed, we're talking about truly highway speed. She had to be going better than 55 mph. But can I prove it? No, I'm at a loss to prove it.
"I was very disappointed. My gut still tells me the lady was not only DUI, but going fast, speeding. And surely speed contributed."
Though Eno said he couldn't offer an opinion without more evidence, two other state experts tried.
Based on a single study of five pedestrians hit on interstates, a University of Indiana forensic pathologist said Bailey was doing at least 55 mph. Hanes didn't think that opinion would hold up in court.
William Lee, director of the USF's biomedical engineering program, calculated the force required to break Bailey's windshield and offered this opinion: "Mr. Nessler was struck by a vehicle traveling in the range 55 to 85 mph, with the speed more likely in the higher end of this range."
Bailey's attorneys, Lyann Goudie and Steve Romine, objected to letting Lee testify, on grounds that he had not used accepted scientific principles and testing procedures. Hanes said there was a "substantial likelihood" a judge would agree.
Lee wished the state had let the judge decide. "I would have tried to argue, on my behalf, that I'm using methodology other experts would have used. . . . There was nothing unscientific in what I was doing."
Bailey had a track record for speeding, but under state law prosecutors couldn't use it to suggest guilt this time. She had driven 83 mph in a 55 mph zone, 53 in a 35, 95 in a 65. In a prior DUI in 1999, she ran a red light and did 70-75 in a 45 mph zone on Dale Mabry Highway. She blew a 0.15.
The defense theory was that Nessler committed suicide by stepping in front of Bailey's Honda. It was inexplicable that he was out on a dark road at 1:45 a.m., the defense wrote, "having left his infant child home alone and for no apparent reason. Ms. Bailey, unfortunately, just happened to be the driver coming along at the time."
Taking pretrial testimony from Deputy Ward, who ran the investigation, Romine asked why he charged Bailey with DUI manslaughter without knowing how the accident happened.
Answered Ward: "I thought it was more probable that a person with a .27 blood alcohol level would have been driving improperly down a street than a person who was not impaired in any way who left a 14-month-old baby in bed and a cold glass of water on the counter would be to jump in front of a car."
In the following exchange, Romine drew answers he wanted from Ward, who had put the average reaction time of an unimpaired driver at 1.6 seconds.
Q. "If she was stone-cold drunk, high, you know, completely out of her mind and she didn't have 1.6 seconds to react, that accident was unavoidable, correct?"
A. "This is correct."
Q. "If she was completely sober and had the best faculties and had the best reaction and completely focused on what was going on and she didn't have 1.6 seconds to react, the accident is equally unavoidable, correct?"
A. "According to the studies in average, yes."
Unable to prove Bailey was speeding and not wanting to risk having the judge throw out the case, the state dismissed the felony DUI manslaughter charge. In exchange, Bailey pleaded guilty to her second misdemeanor DUI, for the mandatory minimum 10 days in jail; she pleaded no contest to leaving the scene of a fatal accident, with no formal finding of guilt, and got five years' probation with special conditions:
A five-year suspension of her driver's license; no business purposes license allowed for two years.
No drinking, no visiting bars. She must attend advanced DUI school, Alcoholics Anonymous meetings twice a week and MADD-sponsored victim impact meetings twice a year.
Community service, 250 hours.
Bailey agreed to pay $9,895.40 to cover George Nessler's funeral expenses.
* * *
The baby in the stroller, Sergeley Pierre, is 2 now. The relative raising him, Minette St. Fleur, says Sergeley loves cartoons and playing on the computer with her boys.
St. Fleur came from Haiti late in 1992. She and her husband own a Caribbean/Haitian market on 15th Street, south of Dr. Martin Luther King Jr. Boulevard. She says her cousin Lynda came from Haiti four months before she was killed crossing Fowler. She doesn't think Sergeley knows anything about the accident that narrowly missed him.
Zertuche, 37, is at Sumter Correctional Institution; his scheduled release date is April 5, 2016.
Last year, Gisella Nessler sued Nicole Bailey and Barnacles for her husband's wrongful death. The lawsuit, filed by attorney Tony Cunningham, says that bartenders served Bailey liquor after an "ordinary, reasonable person" could tell she was impaired, and that Bailey drove in "a negligent and improper manner as to cause" George Nessler's death.
Again, that word, cause. In criminal court, the state could not prove Bailey caused the accident. Will that hurt Cunningham in civil court?
He says not. A prosecutor must prove a criminal case beyond a reasonable doubt, but in civil court the standard is the greater weight of the evidence: What most likely happened?
"Compare the two," Cunningham said. "You have a sober man who left his child for a few minutes because he thought his wife was in trouble, as compared to Nicole Bailey, who was .27 . . . thoroughly drunk. Now which is more likely, that she caught him on the side of the road or that he was out in the middle of the road?"
Bailey did her jail time in March - seven days instead of 10, with two days credit for good behavior and one for the day she was arrested. A 32-year-old single mother, she says she's trying to keep what happened from affecting her two young children.
"I've always thought of myself as a good person," she said. "There's so many things I wish I had answers to. I don't know why he was there, what he was doing out in the road in the middle of the night, leaving his baby at home alone. That's what I want to know. I wish I had the answers.
"It's crushed me as a person, living with it. I'll go through it the rest of my life."
* * *
George Nessler's boss for seven years at Scott's Automotive in Brandon doesn't buy the suicide theory. The evening Nessler was killed, Rob Hight said, "He was sitting in the office, joking. He left here in perfect form, happy as a lark."
Nor does he accept that Bailey's week in jail is any kind of justice. Hight knows Gisella Nessler and baby Tiffany; his perspective is close and personal.
John Kwasnoski's perspective is distant and analytical. He conducts accident reconstruction seminars across the country, for prosecutors, for police, for personal injury attorneys. His topic at a recent seminar in Orlando: the peculiar difficulties that hinder prosecution of pedestrian/vehicle accidents.
Florida makes it easier than most states to prosecute a drunken driver for someone's death, he said. Some states require proof that drinking was the "proximate cause" or that "gross negligence" caused the accident.
Given the lack of evidence in Bailey's case, Kwasnoski said, justice was done. "A little girl darts out from between two cars and she's hit by a sober driver. It was an unavoidable accident. A little girl darts out from between two cars and she's hit by a drunk driver. It was unavoidable. Why should that driver be treated any differently because he's drunk?"
Lee, the USF engineer, said Bailey's 10-day sentence doesn't sit well. "The fact that she was driving that drunk, regardless of whether she caused the accident, was just a bad thing. It was really stupid. What should she get for being stupid?"
Deputy Ward, was justice done? "I would say we did all we could. I would say the law was upheld."
- Times researcher Cathy Wos contributed to this report. Richard Bockman can be reached at bockman@sptimes.com or 727 893-8320.
[Last modified July 24, 2004, 23:58:05]
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