Robertson v. State

• Decision Date: 12 April 2000
• Docket Number: No. 3D98-2383.,3D98-2383.
• Parties: Floyd Thomas ROBERTSON, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

780 So.2d 94

Floyd Thomas ROBERTSON, Appellant, v. The STATE of Florida, Appellee.

No. 3D98-2383.

District Court of Appeal of Florida, Third District.

April 12, 2000.

Bennett H. Brummer, Public Defender, and Manuel Alvarez, Assistant Public Defender, for appellant.

Robert A. Butterworth, Attorney General, and Margaret A. Brenan, Assistant Attorney General, for appellee.

Before GERSTEN, FLETCHER, and SORONDO, JJ.

FLETCHER, Judge.

Floyd Thomas Robertson appeals his judgment and sentence, rendered after a jury trial, for second degree murder arising out of the shooting death of his girlfriend. We agree with the defendant that the trial court reversibly erred when it allowed the prosecutor to introduce inadmissible testimonial evidence of a prior uncharged incident of threatening behavior by the defendant.

Robertson was charged with second degree murder after he reported that his girlfriend had been shot. Police arrived at the scene to find the girlfriend expiring in the bedroom with a chest wound, and the defendant claiming that the .40 caliber Ruger with which she was shot accidentally went off as he took it from the bedroom closet to clean it. At trial, the court allowed the prosecutor on cross-examination to ask the defendant, after defense objection that the question was outside the scope of direct examination, if he had ever threatened anyone with a weapon. The defendant stated he had not. The trial court then allowed the State to call the defendant's ex-wife as a rebuttal witness to impeach that testimony, again over defense objection. The ex-wife testified that six years earlier, the defendant had become angry with her and brandished a loaded AK-47 at her and their daughter.¹ The jury subsequently found the defendant guilty of shooting his girlfriend.

Section 90.404(2)(a), Florida Statutes (1998) provides that evidence of collateral crimes, wrongs, or acts committed by the defendant is admissible if it is relevant to a material fact in issue; such evidence is not admissible where its sole relevance is to prove the character or propensity of the accused. See Czubak v. State, 570 So.2d 925, 928 (Fla.1990)

("It is improper for the prosecution to inquire about collateral crimes committed by the defendant that are unconnected with the crime for which the defendant is on trial and are not relevant to a material fact in issue."), review denied, 652 So.2d 816 (Fla.1995); Castro v. State, 547 So.2d 111, 114-15 (Fla.1989); Williams v. State, 110 So.2d 654 (Fla.),

cert. denied, 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86 (1959). In this instance, the evidence of the incident occurring six years earlier was not relevant to any material fact in issue in the current charge against the defendant.²

Section 90.405, Florida Statutes (1998), provides that character may be proved by reputation or by specific instances of conduct, but only when that evidence is admissible or when character is an essential element of a charge, claim, or defense. The comments to section 90.405 explain that,

"The section [§ 90.405, Methods of proving character] confines the use of specific instances of conduct to cases in which character is in issue; that is, when character is one of the facts necessary to establish a liability or defense or is a factor in the measurement of damages.

When character is used circumstantially and hence occupies a lesser status in the case, proof may be only by reputation and opinion. Of the three methods of proving character provided by this section, evidence of specific instances of conduct is the most convincing. At the same time it possesses the greatest capacity to arouse prejudice, confuse, surprise, or consume time. Consequently, the use of evidence of this kind is confined to cases in which character is, in the strict sense, in issue, and hence deserving of a searching inquiry. This treatment of specific instance of conduct, as well as the treatment of reputation, follows conventional contemporary common-law doctrine." [emphasis supplied]

In this instance, Robertson's character was not, in the strict sense, at issue: character was neither an essential element of the offense of second degree murder, nor was it an essential element of the defense where Robertson maintained that the shooting was accidental. The question by the prosecutor was solely relevant to establish the defendant's bad character, and erroneous admission of the ex-wife's testimony "is presumed harmful error because of the danger that a jury will take the bad character or propensity for crime thus demonstrated as evidence of guilt of the crime charged." Straight v. State, 397 So.2d 903, 908 (Fla.), cert. denied, 454 U.S. 1022, 102 S.Ct. 556, 70 L.Ed.2d 418 (1981); see Williams at 662-63; Gonzalez v. State, 559 So.2d 748 (Fla. 3d DCA 1990); Castro at 114; State v. Lee, 531 So.2d 133 (Fla. 1988); Harris v. State, 427 So.2d 234 (Fla. 3d DCA 1983).

The state's argument that the evidence was for impeachment purposes must fail where that impeachment could not have occurred without the defendant first affirmatively putting his character at issue, which the record indicates did not occur. See Bates v. State, 422 So.2d 1033 (Fla. 3d DCA 1982)

(It is fundamental that the prosecution may not impugn the character of an accused unless the accused first puts character into issue at trial.) Contrary to the State's contention, the record shows that the defendant did not "open the door" to such questioning because the defendant did not voluntarily put the nature of his character at issue prior to the prosecutor's cross-examination. Those instances where courts have allowed impeachment through evidence of prior bad conduct involve situations where the defendant affirmatively offered deceptive testimony. The defendant here did not offer testimony about his good character, or make any claims of being nonviolent, and his claim that the shooting was accidental did not implicate any character trait on the defendant's part. It is well settled that

"[t]he prosecution in a criminal case cannot call witnesses to impeach the character of the defendant, unless the defendant puts it in issue. Nor can the prosecution accomplish the same forbidden end by indirection through pursuing a method of questioning defendant and his witness on cross examination that is principally designed, by means of innuendo and suggestions of general criminality on accused's part, to lead the jury to believe that the accused should be found guilty of the particular crime charged, because of his being suspected or accused of other offenses, or because of his connections or association with other accused persons under indictment for different crimes not constituting part of the charge on trial."

Foy v. State, 115 Fla. 245, 155 So. 657 (1934). The prosecutor committed the very error denounced in Foy.

We have conducted a harmless error analysis in this case and cannot conclude that the improperly admitted evidence was harmless beyond a reasonable doubt. As a result, we find that the defendant is entitled to a new trial.

Reversed and remanded for new trial.

SORONDO, J. (concurring).

I agree with Judge Fletcher's opinion and write separately only to address the dissent and the issues raised therein.

The dissent begins by praising the "struggle" of our trial judges and asserts that "their difficult discretionary decisions should be commended in the absence of a showing of abuse—not reproved." The word reproof is defined as "the act, an instance, or an expression of reproving; a rebuke." THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE 1532 (3d ed. 1996). Having read Judge Fletcher's opinion carefully, I can find nothing therein which in any way "reproves" the trial judge in this case. Nor am I willing to accept the premise that a reversal of a lower court's rulings constitutes such a rebuke. In Whipple v. State, 431 So.2d 1011, 1014 (Fla. 2d DCA 1983), the Court defined our role as follows:

Under our present constitutional scheme, the district courts of appeal engage primarily in the so-called error-correcting function to insure that every litigant receives a fair trial.

If such is this Court's purpose, and I agree that it is, then a reversal based upon the commission of a perceived error, absent a specific admonishment of the trial judge, cannot possibly be interpreted as a rebuke of the lower court. Likewise, a reversal of a District Court's decision by the Florida Supreme Court does not constitute a rebuke of the judges on the District Court panel.

Next, the dissent states: "[The victim's] life was senselessly ended and now she will never have the chance to see her friends or family again or to know her grandchildren." In a footnote to this sentence, the dissent sets forth the victim's daughter's emotional statements to the trial judge at sentencing. The senselessness of the victim's death, like the death of all homicide victims, whether the killing occurred in a domestic setting or not, is apodictic. Neither the defense nor the state has challenged the enormity of the suffering endured by victims of violent crimes and their families. This tragic reality, however, is not relevant to the issue of the admissibility of the evidence in question. Likewise, the victim's daughter's emotionally moving statement at the sentencing hearing, although clearly permissible, see Art. I, § 16(b), Fla. Const.; § 921.143, Fla. Stat. (1997), and definitely relevant to sentencing, is not relevant to the issue presently before this Court.

Moving now to the substantive issue before the Court, section 90.404(2)(b), Florida Statutes (1997), requires that the state provide the defense with notice of intent to rely on similar fact evidence of other crimes, wrongs or acts, ten days before trial. The state provided no such notice in this case. A fact which, given the state's usual aggressive pursuit of this type of evidence, suggests that it did not believe the evidence in question was admissible...