Ackerman v. State, KK-372

• Decision Date: 29 June 1979
• Docket Number: No. KK-372,KK-372
• Citation: 372 So.2d 215
• Parties: William F. ACKERMAN, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 215

372 So.2d 215

William F. ACKERMAN, Appellant, v. STATE of Florida, Appellee.

No. KK-372.

District Court of Appeal of Florida, First District.

June 29, 1979.

Appeal from Circuit Court, Alachua County; John J. Crews, Judge.

Michael J. Minerva, Public Defender, and Thomas S. Keith, Asst. Public Defender, for appellant.

Jim Smith, Atty. Gen., and Miguel A. Olivella, Jr., Asst. Atty. Gen., for appellee.

PER CURIAM.

AFFIRMED.

MELVIN, Acting C. J., and BOOTH, J., concur.

LARRY G. SMITH, specially concurs.

LARRY G. SMITH, Judge, specially concurring.

Defendant appeals his conviction and sentence for first degree murder. He seeks reversal contending that the trial court erred in sustaining the State's objection to certain questions propounded by defense counsel to a State's witness on cross-examination.

The witness, Ken Killian, who had known defendant for several years, testified that he received three or four telephone calls from defendant while defendant was awaiting trial in the case. He testified that defendant admitted to him in these phone conversations that he had hit the victim in the head with a club and an owl statue. On cross-examination, defense counsel asked Killian three questions concerning whether or not defendant told Killian who had done the stabbing. The State objected to the questions on the grounds that they called for self-serving declarations by defendant which were inadmissible as hearsay. The prosecuting attorney acknowledged to the court out of the presence of the jury that the witness, if permitted to answer, would have testified that defendant had stated in the conversations that Wendy Raduns was the one who did the stabbing. The trial court sustained the objections to the three questions.

I agree that it was error for the trial court to sustain objections to the questions.

Where the State calls a witness to prove an incriminating statement made by the accused in a conversation, the accused is entitled to have the remainder of the conversation admitted into evidence even though favorable to him. Burch v. State, 360 So.2d 462 (Fla. 3rd DCA 1978); Bennett v. State, 96 Fla. 237, 118 So. 18 (1928); Thalheim v. State, 38 Fla. 169, 20 So. 938 (1896); West v. State, 53 Fla. 77, 43 So. 445 (1907).

Since the right to cross-examination stems from the constitutional right of the accused to be confronted by his accusers, Coco v. State, 62 So.2d 892 (Fla.1953), improper curtailment of cross-examination constitutes constitutional error. Such error may not be regarded as harmless if there is a reasonable possibility that the erroneous evidentiary ruling may have contributed to the defendant's conviction or if the error may not be found harmless beyond a reasonable doubt or if prejudice is demonstrated. Nowlin v. State, 346 So.2d 1020, 1024 (Fla.1977) citing Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Coxwell v. State, 361 So.2d 148, 152 (Fla.1978).

Accordingly, it is necessary to consider the entire evidence in the case to determine whether the harmless error doctrine applies. Briefly, the evidence discloses that the defendant and the victim were long-time friends and had, in fact, a homosexual relationship. Wendy Raduns, an alleged accomplice, who had plead guilty as an accessory after the fact, testified at defendant's trial that she and defendant went to the victim's apartment on the evening of January 22 where the victim was beaten and stabbed by the defendant after he was forced to write out a check payable to defendant. The next day, she testified defendant cashed the check, they bought two coats, defendant bought bus tickets for the two of them, and they departed for New York City. Upon arrival, they were arrested and various items of property in their joint possession were taken from them, which at the trial were identified as...