Hawthorne v. State

• Decision Date: 07 June 1985
• Docket Number: No. AN-435,AN-435
• Parties: 10 Fla. L. Weekly 1406 Joyce Bernice HAWTHORNE, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 770

470 So.2d 770

10 Fla. L. Weekly 1406

Joyce Bernice HAWTHORNE, Appellant, v. STATE of Florida, Appellee.

No. AN-435.

District Court of Appeal of Florida,

First District.

June 7, 1985.

Leo A. Thomas, of Levin, Warfield, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A., Pensacola, for appellant.

Jim Smith, Atty. Gen., and Andrew Thomas, Asst. Atty. Gen., Tallahassee, for appellee.

Kit Kinports, Donald N. Bersoff and Bruce J. Ennis, of Ennis, Friedman, Bersoff & Ewing, Washington, D.C.; and Robert Augustus Harper, Jr., Tallahassee, for amicus curiae American Psychological Ass'n.

WIGGINTON, Judge.

This is an appeal from a conviction of manslaughter arising from Joyce Hawthorne's third trial for the murder of her husband. Her first conviction, for first degree murder, was reversed by this Court in Hawthorne v. State, 377 So.2d 780 (Fla. 1st DCA 1979) (Hawthorne I). The opinion in that case contains an adequate presentation of the facts surrounding the shooting of appellant's husband, Aubrey Hawthorne, and those facts will not be reiterated here.

Appellant's second conviction, for second degree murder, was also reversed by this Court in Hawthorne v. State, 408 So.2d 801 (Fla. 1st DCA 1982) (Hawthorne II). For reasons similar to those set forth in Hawthorne I and II, we are again compelled to reverse and remand for a new trial.

In Hawthorne I, the thrust of this Court's opinion was directed toward the admissibility of appellant's statements and confessions made to the police within twenty-four hours of her arrest. We held that the recorded statement was invalid as being coerced and involuntary, and voiced our continuing concern that "the fundamental rights of an individual charged with violation of the law be observed and protected by law enforcement officials and by the courts." 377 So.2d at 785. Accordingly, we admonished the state that "[o]n retrial of defendant, her statements and confessions, or any evidence relating thereto, are inadmissible." Id.

In Hawthorne II this Court reversed the conviction of second degree murder for several reasons, one being that the trial court erred in allowing the state to impeach Mrs. Hawthorne's testimony using her testimony from the first trial, because the state failed to show that the prior testimony used for impeachment purposes "was not the product of the illegally obtained and unreliable statement." 408 So.2d at 804. In addition, we found these references at the second trial to the contents of the illegally obtained statement "ignored this court's admonition in the first Hawthorne opinion ...." Id.

In the instant case, we are presented with a slightly different twist of the same issue. During the third trial the prosecution attempted to impeach Mrs. Hawthorne's testimony, that the next thing she remembered after firing the shotgun was calling the Sheriff's Department for an ambulance, by asking her whether she didn't call her lawyer first. Notwithstanding strenuous objections made by defense counsel, the trial court permitted the prosecution to continue questioning Mrs. Hawthorne along this line. ¹ In so doing the court committed reversible error.

After carefully reviewing the record, we are convinced that the impeachment effort had as its source the illegally obtained statement. ² The state would argue that this situation differs from the circumstances on which our two prior Hawthorne decisions are based in that it did not make reference to the previously suppressed statements or the prior trial testimony before the jury. However, the state is attempting to do indirectly what it was prohibited from doing directly by this Court's admonition in Hawthorne I. The state's utilizing the illegally obtained statement without direct reference to it is no less damaging to Mrs. Hawthorne's fundamental rights than is its introducing the statement itself. Hence, in Hawthorne I we prohibited not only the use of her "statements and confessions," but "any evidence relating thereto." [Emphasis added]. Such admonition contemplates any use of the involuntary statements either directly or indirectly, and the state's action here constituted nothing less than subtle treachery.

We note in passing that subsumed under this point was appellant's argument that the state violated Mrs. Hawthorne's rights under the Sixth and Fourteenth Amendments of the United States Constitution, and under article I, section 16, of the Florida Constitution by making reference in its closing argument to Mrs. Hawthorne's contacting an attorney on the night of the murder and inferring therefrom a guilty motive. For the edification of the parties, as our above holding relieves us of further discussion under this point, we find that the defense opened the door for the prosecution's closing remarks. This is not to say, however, that we condone the prosecution's implying to the jury that Mrs. Hawthorne could not have acted in self-defense if she had called a lawyer before calling an ambulance; and we instruct the prosecution, and the defense, to avoid such prejudicial statements on retrial. See generally United States ex rel. Macon v. Yeager, 476 F.2d 613 (3d Cir.1973), cert. denied, 414 U.S. 855, 94 S.Ct. 154, 38 L.Ed.2d 104 (1973); and United States v. McDonald, 620 F.2d 559 (5th Cir.1980).

The next argument by appellant is that the trial court erred in failing to admit the expert testimony of Dr. Lorraine Walker that appellant was a battered woman. In Hawthorne II we considered the admissibility of expert testimony regarding the battered woman syndrome and concluded that the subject matter of the expert opinion would provide the jury with an interpretation of the facts not ordinarily available to them or within their understanding. However, we stated that our determination in that regard "is subject to the trial court determining that Dr. Walker is qualified and that the subject is sufficiently developed and can support an expert opinion." 408 So.2d at 806. [Emphasis added]. Our placing this ultimate determination with the trial court recognizes a trial court's broad discretion in determining the range of subjects on which an expert may be allowed to testify, and, unless there is a clear showing of error, its decision will not be disturbed on appeal. Rivers v. State, 425 So.2d 101 (Fla. 1st DCA 1982); Johnson v. State, 393 So.2d 1069 (Fla.1980); Buchman v. Seaboard Coast Line Railroad Company, 381 So.2d 229 (Fla.1980); Fotianos v. State, 329 So.2d 397 (Fla. 1st DCA 1976); Johnson v. State, 314 So.2d 248 (Fla. 1st DCA 1975).

In the instant case, pursuant to our mandate in Hawthorne II, the trial court presided over three days of hearings to determine the adequacy of Dr. Walker's qualifications as an expert witness in the field of study known as the "battered woman syndrome," and to determine the extent to which her methodology is generally accepted. The latter determination would indicate the subject matter could support a reasonable expert opinion. Although it does not conclusively appear from the order whether the trial court made a determination as to the adequacy of Dr. Walker's qualifications, the ambiguity in that regard appears to be largely a result of the trial court's devoting its order to the ultimate conclusion that, based on Dr. Walker's research, "the court is not convinced that she has knowledge necessary to give such testimony...." The court so concluded due to its finding that the "depth of study in this field has not yet reached the point where an expert witness can give testimony with any degree of assurance that the state of the art will support an expert opinion," and that "Dr. Walker's research will not permit her to draw any conclusions from the facts of this case." A careful reading of the transcript persuades us that the trial court did not abuse its discretion. Although the witnesses tendered by both the defense and the state generally agreed that Dr. Walker is eminently qualified as a "battered woman syndrome" expert, and that the syndrome is a subject sufficiently developed and able to support an expert opinion, their ostensibly earnest attestation in that regard was belied by their equally earnest criticism levied against Dr. Walker's study.

Our determination that the trial court did not abuse its discretion in failing to permit Dr. Walker to testify as an expert witness does not, of course, preclude the defense on retrial to reoffer this witness or any other witness as an expert on this subject. Again, the trial court has the discretion to determine the qualifications of the expert and whether the subject can support an expert's opinion.

We have fully considered the remaining points and arguments raised in appellant's brief and affirm. However, in view of our reversal on the first point, one of the remaining points will be discussed, briefly, for guidance during retrial. Appellant argues that the trial court erred in refusing to instruct the jury on circumstantial evidence. Although appellant recognizes that the Florida Supreme Court approved the elimination of this jury instruction, ³ she argues that when a case rests solely upon circumstantial evidence, as does this case, it is an abuse of discretion for the trial court to refuse to give the instruction on circumstantial evidence. Apart from our disagreement with appellant's premise that her case is wholly circumstantial, we disagree that the trial court abused its discretion. It instructed the jury on reasonable doubt and burden of proof. Those instructions were sufficient.

For the reasons hereinabove set forth, this cause is AFFIRMED in part, REVERSED in part, and the case REMANDED for a new trial.

THOMPSON, J., concurs.

ERVIN, C.J., concurs in part and dissents in part with written opinion.

ERVIN, Chief Judge, concurring in part and dissenting in part.

I fully agree with the majority as to its reversal of the first point raised. I disagree, however, with its affirmance of the trial court's order...