Arbogast v. State, 71--1373

Decision Date13 June 1972
Docket NumberNo. 71--1373,71--1373
Citation266 So.2d 161
PartiesWalter L. ARBOGAST, Appellant, v. The STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

Phillip A. Hubbart, Public Defender, and Bennett H. Brummer, Asst. Public Defender, for appellant.

Robert L. Shevin, Atty. Gen., and J. Robert Olian, Asst. Atty. Gen., for appellee.

Before CHARLES CARROLL, HENDRY and HAVERFIELD, JJ.

PER CURIAM.

The appellant was charged and tried before a jury which convicted him of possession of a stolen motor vehicle and resisting an arrest without violence. He has appealed, but of the points presented only one merits discussion as the evidence was ample to sustain the conviction. That point concerns the trial court's requiring a witness to stand and face the jury while testifying.

'It is ordinarily for the judge presiding at the trial to determine, in his discretion, whether acts or conduct of a party, a witness, a court attendant, or other person is of such a nature as to preclude the proper and impartial consideration of the case by a jury.' 88 C.J.S., Trial § 52, p. 139.

The court below broke away from a long-recognized practice in Florida courts--other than municipal courts--of having the witness sit in a chair while testifying. The practice employed below of requiring a witness to stand and face the jury while testifying carries an unnecessary potential for prejudice. Usually a witness is not tired when first called on direct examination; so standing to testify should create no problem. However, in the event that the witness should be required to stand for direct examination longer than a few minutes that person would be likely to become tired and at a disadvantage by the time he is turned over for cross-examination.

Extended questioning of an obviously fatigued witness would engender in the jury otherwise unwarranted sympathy for the witness and antipathy toward counsel conducting the examination. On the other hand, a cross-examination which is not searching but only long, may without justification destroy a witness' credibility, where the person under oath seems ill at ease or inattentive. Additionally, the witness may be more circumspect in his answers to shorten his appearance 'at center stage.'

The physical location of counsel's table may prevent the attorney from observing the facial expressions or hearing intonations of a witness standing and facing towards the jury box. Prejudice could also occur by reason of the inability of some witnesses to think on their feet as well as when sitting. Our Supreme Court said in Hahn v. State, Fla.1952, 58 So.2d 188, 191 (en banc):

'. . . This Court has always recognized that a trial Court has wide latitude in regulating the conduct of trials in order that the administration of justice be speedily and fairly achieved in an orderly, dignified manner and befitting...

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6 cases
  • Watts v. State, 72--1124
    • United States
    • Florida District Court of Appeals
    • May 15, 1973
    ...242 So.2d 763; McKissack v. State, Fla.App.1971, 243 So.2d 14; Williams v. State, Fla.App.1971, 243 So.2d 215; Arbogast v. State, Fla.App.1972, 266 So.2d 161. ...
  • Brown v. State
    • United States
    • Florida District Court of Appeals
    • December 22, 2010
    ...of justice may be fairly achieved in an orderly manner.1 See Hahn v. State, 58 So.2d 188, 191 (Fla.1952); Arbogast v. State, 266 So.2d 161, 162 (Fla. 3d DCA 1972). Defendant was given the appropriate warnings about the consequences of testifying, and knowingly and voluntarily waived his rig......
  • Arbogast v. State, s. 75--621 and 75--1682
    • United States
    • Florida District Court of Appeals
    • November 23, 1976
    ...and resisting an officer without violence to his person. On direct appeal to this court, his conviction was affirmed. Arbogast v. State, 266 So.2d 161 (Fla.3d DCA 1972). On August 25, 1975 defendant, pursuant to Fla.R.Crim.P. 3.850, filed a motion to vacate judgment and sentence on the grou......
  • Ford v. State, 47059
    • United States
    • Florida Supreme Court
    • July 18, 1979
    ... ... See generally Rose v. Yuille, 88 So.2d 318 (Fla.1956); Arbogast ... Page 499 ... v. State, 266 So.2d 161 (Fla.3d DCA 1972); Bowen v. Manuel, 144 So.2d 341 (Fla.2d DCA 1962). Finally, the appellant was not ... ...
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