Allah v. State

• Decision Date: 04 June 1985
• Docket Number: No. 83-2825,83-2825
• Citation: 10 Fla. L. Weekly 1366,471 So.2d 121
• Parties: 10 Fla. L. Weekly 1366 Allahzar God ALLAH, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 121

471 So.2d 121

10 Fla. L. Weekly 1366

Allahzar God ALLAH, Appellant, v. The STATE of Florida, Appellee.

No. 83-2825.

District Court of Appeal of Florida,

Third District.

June 4, 1985.

Rehearing Denied July 8, 1985.

Bennett H. Brummer, Public Defender and Susan J. Silverman, Sp. Asst. Public Defender, for appellant.

Jim Smith, Atty. Gen., and Richard L. Polin, Asst. Atty. Gen., for appellee.

Before BARKDULL, BASKIN and DANIEL S. PEARSON, JJ.

PER CURIAM.

The defendant was convicted of first-degree murder. He was seen in broad daylight at an intersection of two main thoroughfares repeatedly stabbing another man whom he had never met before. The killing was without apparent motive. Although the defendant and the victim had never spoken to one another, the defendant, purportedly suffering from a delusion, believed the victim had insulted and threatened him and meant to kill him. Upon his arrest, the defendant told the police that God told him to kill the victim. He was otherwise quiet and unemotional. When advised of his right to an attorney, the defendant requested one. Predictably, the defense was insanity.

The defendant contends that the trial court erred in admitting over the defendant's timely objection rebuttal testimony that he requested an attorney after his arrest. Relying on State v. Burwick, 442 So.2d 944 (Fla.1983), cert. denied, 466 U.S. 931, 104 S.Ct. 1719, 80 L.Ed.2d 191 (1984), he correctly asserts that this testimony, inadmissible as an improper comment on the defendant's exercise of a Miranda-protected right, is not made admissible because offered to rebut the defendant's insanity defense. The defendant is incorrect, however, in his assertion that he preserved this point for appeal, as he must, see Clark v. State, 363 So.2d 331 (Fla.1978), ¹ by timely objection.

While it is true that the defendant objected at the time the State's rebuttal testimony was introduced, that objection was meaningless under the well-recognized rule that "[i]f evidence theretofore has been admitted without objection, a subsequent objection to admission of evidence of the same import is waived." Ingle v. Ingle, 42 N.C.App. 365, 368, 256 S.E.2d 532, 535 (1979). See Star Realty v. Strahl, 261 Iowa 362, 154 N.W.2d 143, 145 (1967) (failure to object to testimony waives right to object to further questions on the same subject matter); Breiner v. Olson, 195 Neb. 120, 126, 237 N.W.2d 118, 124 (1975) ("Error cannot be predicated on the admission of testimony when testimony of the same nature was previously admitted without objection." ); State v. Rogers, 275 N.C. 411, 432, 168 S.E.2d 345, 358 (1969), cert. denied, 396 U.S. 1024, 90 S.Ct. 599, 24 L.Ed.2d 518 (1970) ("It is the well established rule ... that when incompetent evidence is admitted over objection, but the same evidence has theretofore or thereafter been admitted without objection, the benefit of the objection is ordinarily lost." ); Wright v. American General Life Insurance Co., 59 N.C.App. 591, 598, 297 S.E.2d 910, 915 (1982), rev. denied, 307 N.C. 583, 299 S.E.2d 653 (1983) (same). See also Rowles v. Woronwitch, 369 So.2d 362 (Fla. 4th DCA), cert. denied, 379 So.2d 208 (Fla.1979); National Car Rental System, Inc. v. Holland, 269 So.2d 407 (Fla. 4th DCA 1972), cert. denied, 273 So.2d 768 (Fla.1973). In the case before us, the evidence which was admitted without objection was not merely of the same import or the same nature but was identical.

The defendant called three psychiatrists to testify on his behalf. Each of them expressed his expert opinion that the defendant did not know the difference between right and wrong at the time of the crime. On cross-examination, the prosecutor asked each of three psychiatrists the following hypothetical question, which without objection by the defendant, ² included as an operative fact that the defendant requested a lawyer upon being apprehended by the police:

"Assume the following facts were true: Number one, a witness sees the Defendant chasing a white male across the street. The witness is a passenger in a van driving down the same street. As the Defendant chases the white male across the street he is stabbing the white male in the back with a knife. The van pulls up next to the two men. The white man runs around the front of the van to the passenger door and tries to get into the van, still being pursued and stabbed by the Defendant. The witness opens the door and sticks out a gun which she's holding in her hand. The Defendant looks up and sees the gun. His face showing surprise as he sees it and he runs back across the street. The witness who is an off-duty police officer chases the Defendant and shouts, 'Stop. Police.' As she finishes saying this, the Defendant stops and turns around to look at her.

"The witness, while pointing the gun at the Defendant, tells him to drop the knife which he does. As the witness is picking up the knife the Defendant walks to a nearby bench and sits down. The witness holds him there at gunpoint and tells him not to move or she will shoot him. The Defendant does not attempt to move from the bench. As she holds the Defendant at gunpoint the Defendant asks her, 'Why are you holding that gun on me?'

"The witness says, 'Because if you move I will kill you.' To this the Defendant responds, 'I want my attorney.'

"My first question is this: Based on the facts that I just related to you, do you have an opinion as to whether the actions of the Defendant are more consistent or less consistent with the Defendant being in touch with reality at the time of these acts?" (emphasis supplied).

Dr. Corwin, the first psychiatrist, responded this way:

"I think it would be consistent with either position. Here's a man who is being observed by people, yet continues to stab at a man.

"A woman points a gun at him and he walks away from her. It may be a rational, sensible man would not have walked away. On the other hand, the fact that he said, 'I want an attorney,' might indicate some awareness of his being in trouble. It could be either way.

"My feeling would be that in totality his actions would indicate lack of awareness completely of the reality he was in."

The prosecutor then attempted to impeach Dr. Corwin by confronting him with an answer he had given in a pretrial deposition to a question which also probed the significance of the defendant's post-arrest request for an attorney:

"Q What significance, if any, do you attach to the fact that he asked for an attorney?

"A Well, I think that was an awareness--of course that makes one wonder that he must have known he was going to be charged with a crime and he wanted an attorney to protect him.

"Q Those facts ... would you find [them] more consistent with being in touch with reality or more consistent with reacting to some sort of delusion?

"A More consistent with his being in touch with reality. He was aware that there was a gun being pointed at him. He dropped the knife on command and he asked for a lawyer."

Again, defense counsel did not object.

The second psychiatrist, Dr. Castiello, saw little significance in the defendant's request for a lawyer. To emphasize this point, the defendant's attorney, on redirect examination of the doctor, pursued this line of questioning:

"Q Now, in the hypothet that was read to you by the prosecution, taking that out of context, could that be consistent as well as inconsistent with mental illness?

"A It could be looked at any way you want to because as you very well pointed out, any kind of fact or isolated event taken out of context can be looked at in whatever way you want.

"Q So if he, in fact, after asking the witness why was she pointing the gun at him, I want my lawyer, does that mean he recognized the legal difficulties or could it mean something else?

"A I think it could mean anything. By that I mean just because somebody who, of course, is not wearing a uniform is pointing a gun and threatening to shoot you, your response is, 'I want a lawyer', that's kind of--not too relevant to the situation. You may decide you need a lawyer at one point in time when somebody is pointing a gun at you. I think that to just call for an attorney doesn't necessarily to me at least mean that the person was exercising good judgment at all."

The prosecution then conducted a brief recross-examination focused on the defendant's request for an attorney:

"Q Doctor, is it your testimony that if an off-duty police officer chased the Defendant, showed him a badge and a gun and yelled, 'Police', after he had just stabbed the man to death, when he made the statement, 'I want an attorney' that wasn't relevant to the situation?

"A No, I don't believe I said that. I said that in my opinion it was kind of inappropriate at the time.

"Q It was inappropriate?

"A Yes, sir."

As before, the defendant did not object.

Dr. Jaslow, the third psychiatrist called by the defendant, was also cross-examined by the prosecutor on the psychological import of the defendant's post-arrest request for an attorney:

"A On the basis of just what you gave me in the hypothet, that would be more consistent with his knowing what had occurred was wrong, there could be some type of punishment.

"Q .... Is it more consistent with him knowing what he was doing at the time of those facts?

"A Solely based on what you described to me, yes.

"Q And also more consistent with the fact that he knew what the results of his actions were?

"A Asking for an attorney would suggest that, yes."

Not only did the defendant not object to this latest request-for-an-attorney reference, but, indeed, on redirect examination of the doctor, counsel for the defendant included the defendant's request for an attorney as a fact in a hypothetical posed to the doctor:

"Q Doctor, let me read the following hypothet, assume, just assume these facts are true, then I will ask you follow-up questions.

"A person sitting on a bench gets up and begins to stab a man with a knife. ...