747 So.2d 1021 (Fla.App. 3 Dist. 1999), 99-339, Diaz v. State

Docket NºCASE No. 99-339
Citation747 So.2d 1021, 24 Fla. L. Weekly D 2802
Opinion JudgeThe opinion of the court was delivered by: Sorondo, J.
Party NameERNESTO DIAZ, APPELLANT, v. THE STATE OF FLORIDA, APPELLEE.
AttorneyBennett Brummer, Public Defender, and Robert Kalter, Assistant
Case DateDecember 15, 1999
CourtFlorida Court of Appeals, Third District

Page 1021

747 So.2d 1021 (Fla.App. 3 Dist. 1999)

24 Fla. L. Weekly D 2802

ERNESTO DIAZ, APPELLANT,

v.

THE STATE OF FLORIDA, APPELLEE.

CASE No. 99-339

Florida Court of Appeals, Third District.

December 15, 1999

Page 1022

Page 1022

Bennett Brummer, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.

Robet A. Butterworth, Attorney General, and Regine Monestime, Assistant Attorney General, for appellee.

Before Nesbitt, Cope and Sorondo, JJ.

Sorondo, J.

Ernesto Diaz (defendant), appeals from a final judgment of guilt of second degree murder and thirty year sentence.

The defendant was charged by information with the second degree murder of Julio Rojas. Before trial, the state moved in limine to preclude the defense from arguing that the victim had a blood alcohol level of .21 at the time he was stabbed, unless the defendant presented evidence that he knew the victim was intoxicated. The defense responded that all of the witnesses would testify that the victim was intoxicated and that he had a reputation for being violent when drunk; that the victim was the aggressor and that the defendant reacted in self-defense. The court granted the state's motion but gave the defense the right to renew the issue during trial.

Luis Guerro, Luis Castro, the defendant, and the victim were at a gas station. Defendant went to buy beer. When he returned, each individual took one of the beers. Having consumed his first beer, the victim reached for his second. As he did, the defendant said, "are you going to drink them all little girl?" The victim responded that he was a man and threw the empty beer bottle at the defendant. A struggle ensued but the men were ultimately separated. Guerro and Castro testified that several minutes passed during which the men returned to their places and remained calm. Thereafter, the defendant approached the victim with a switchblade. Castro testified that the defendant stabbed the victim, then threatened to throw the knife at him (Castro). Guerro and the defendant then left.

During cross-examination, Guerro testified that the victim was a problematic individual and had a reputation for violence when drunk. Castro testified that the defendant and the victim had been drinking and that the latter became obnoxious when drunk.

Page 1023

Dr. Michael Bell testified that the victim's death was caused by a stab wound to the abdomen. At the end of Dr. Bell's direct examination, defense counsel renewed his request to be allowed to inquire about the results of the victim's toxicology report. The motion was denied.

The defendant testified that he knew that the victim had a reputation for violence. He stated that after the victim threw the beer bottle at him, the victim approached him with a red crate, and, fearing for his life, he "hit" the victim with the knife.

Dr. Bell testified on behalf of the defense that the toxicology evaluation performed during the autopsy showed that the victim had a blood alcohol level of .21 at the time of death.

Before closing, defense counsel renewed his objection to the limitation of Dr. Bell's cross-examination during the state's case and argued that he should not be forced to give up the right to have the opening and closing portions of closing argument. The trial court denied the motion. The jury found the defendant guilty as charged.

The defendant argues that the trial court reversibly erred when it improperly denied him the right to cross-examine the medical examiner on the issue of the victim's blood alcohol level, which resulted in his having to call the medical examiner in his own case thus forcing him to waive his right to initial and rebuttal closing arguments. We disagree.

In Steinhorst v. State, 412 So.2d 332 (Fla. 1982), the Florida Supreme Court stated:

The proper purposes of cross-examination are: (1) to weaken, test, or demonstrate the impossibility of the testimony of the witness on direct-examination and, (2) to impeach the credibility of the witness, which may involve, among other things, showing his possible interest in the outcome of the case. Therefore it is held that questions on cross-examination must either relate to credibility or be germane to the matters brought out on direct examination. If the defendant seeks to...

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  • 138 So.3d 1064 (Fla.App. 4 Dist. 2014), 4D11-2105, Antoine v. State
    • United States
    • Florida Florida Court of Appeals Fourth District
    • May 7, 2014
    ...accused were reasonable." Ehrhardt, supra, § 404.6; see also Arias v. State, 20 So.3d 980, 983 (Fla. 3d DCA 2009); Diaz v. State, 747 So.2d 1021, 1024-25 (Fla. 3d DCA 1999). When the evidence is offered for this purpose, " there must be evidence that the accused knew of the victim......
  • 972 So.2d 941 (Fla.App. 5 Dist. 2007), 5D06-2994, Salas v. State
    • United States
    • Florida Florida Court of Appeals Fifth District
    • December 14, 2007
    ...victims was not part of the medical examiner's direct testimony and thus was not a proper subject for cross-examination. Diaz v. State, 747 So.2d 1021 (Fla. 3d DCA 1999), is illustrative. In Diaz, the appellate court found no abuse of discretion Page 957 in the trial court's refusal to allo......
  • FL Bar v. Carlon Jr, 100401 FLSC, 95339
    • United States
    • October 4, 2001
    ...to demonstrate that Woodburn was not deceived by Carlon. A party is permitted wide latitude in cross-examination. See Diaz v. State, 747 So. 2d 1021 (Fla. 3d DCA 1999). While a trial court may place reasonable limits on cross examination, those limits are reviewed by an appellate court for ......
  • 942 So.2d 433 (Fla.App. 4 Dist. 2006), 4D05-1498, State v. Hamner
    • United States
    • Florida Florida Court of Appeals Fourth District
    • October 25, 2006
    ...within the sound discretion of the trial court and is not subject to review except for a clear abuse of discretion." Diaz v. State, 747 So.2d 1021, 1023 (Fla. 3d DCA 1999) (quoting Tompkins v. State, 502 So.2d 415, 419 (Fla.1986)). The record reflects that on direct examination by the ......
  • Request a trial to view additional results
30 cases
  • 138 So.3d 1064 (Fla.App. 4 Dist. 2014), 4D11-2105, Antoine v. State
    • United States
    • Florida Florida Court of Appeals Fourth District
    • May 7, 2014
    ...accused were reasonable." Ehrhardt, supra, § 404.6; see also Arias v. State, 20 So.3d 980, 983 (Fla. 3d DCA 2009); Diaz v. State, 747 So.2d 1021, 1024-25 (Fla. 3d DCA 1999). When the evidence is offered for this purpose, " there must be evidence that the accused knew of the victim......
  • 972 So.2d 941 (Fla.App. 5 Dist. 2007), 5D06-2994, Salas v. State
    • United States
    • Florida Florida Court of Appeals Fifth District
    • December 14, 2007
    ...victims was not part of the medical examiner's direct testimony and thus was not a proper subject for cross-examination. Diaz v. State, 747 So.2d 1021 (Fla. 3d DCA 1999), is illustrative. In Diaz, the appellate court found no abuse of discretion Page 957 in the trial court's refusal to allo......
  • FL Bar v. Carlon Jr, 100401 FLSC, 95339
    • United States
    • October 4, 2001
    ...to demonstrate that Woodburn was not deceived by Carlon. A party is permitted wide latitude in cross-examination. See Diaz v. State, 747 So. 2d 1021 (Fla. 3d DCA 1999). While a trial court may place reasonable limits on cross examination, those limits are reviewed by an appellate court for ......
  • 942 So.2d 433 (Fla.App. 4 Dist. 2006), 4D05-1498, State v. Hamner
    • United States
    • Florida Florida Court of Appeals Fourth District
    • October 25, 2006
    ...within the sound discretion of the trial court and is not subject to review except for a clear abuse of discretion." Diaz v. State, 747 So.2d 1021, 1023 (Fla. 3d DCA 1999) (quoting Tompkins v. State, 502 So.2d 415, 419 (Fla.1986)). The record reflects that on direct examination by the ......
  • Request a trial to view additional results