Bailey v. State, 80-1402

• Citation: 411 So.2d 1377
• Decision Date: 07 April 1982
• Docket Number: No. 80-1402,80-1402
• Court: Court of Appeal of Florida (US)
• Parties: Robert Lee BAILEY, Appellant/Cross-Appellee, v. STATE of Florida, Appellee/Cross-Appellant.

Page 1377

411 So.2d 1377

Robert Lee BAILEY, Appellant/Cross-Appellee, v. STATE of Florida, Appellee/Cross-Appellant.

No. 80-1402.

District Court of Appeal of Florida, Fourth District.

April 7, 1982.

Rehearing Denied April 21, 1982.

Richard L. Jorandby, Public Defender, and Jon May, Asst. Public Defender, West Palm Beach, for appellant/cross-appellee.

Jim Smith, Atty. Gen., Tallahassee, and Robert L. Bogen and Trela J. White, Asst. Attys. Gen., West Palm Beach, for appellee/cross-appellant.

GLICKSTEIN, Judge.

Appellant seeks reversal of his conviction and sentence for manslaughter, basing error upon the trial court's refusal to allow impeachment of a state witness. ¹ Finding the trial judge did not abuse his discretion by limiting the scope of cross-examination, we affirm the lower court's decision.

Appellant shot and killed his six-year-old daughter Pamela. The question presented at trial was whether he accidentally shot her or whether he intended to kill his wife but shot his daughter inadvertently.

Three eyewitnesses to the crime, among others, testified on behalf of the state. The first was appellant's thirteen-year-old daughter, the second was his wife, and the third was their older son. All three testified that on the night of the fatal shooting appellant threatened to kill his wife. Testimony was also given that appellant held the gun with both hands before the shot was fired.

At trial counsel attempted to set up the defense that appellant's wife was testifying falsely because she was having an affair with another man and wanted her husband out of the way. Outside the jury's presence, the court prohibited defense counsel from attempting to discredit the wife, ruling that her alleged extramarital relationship was irrelevant. Subsequent to this proffer, Elizabeth Stewart, appellant's sister, testified that after the shooting another man moved in with appellant's wife. Upon motion by the state, the court ordered this testimony stricken from the record. Appellant was found guilty of manslaughter and sentenced to nine years in prison.

Appellant argues the trial court's refusal to allow cross-examination of his wife concerning her infidelity violated his sixth amendment right ² to confront his accusers. We agree the exposure of a witness's motivation in testifying is a constitutionally protected right. Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). But that right has always been subject to a trial court's discretion in limiting and controlling cross-examination. Demps v. State, 395 So.2d 501 (Fla.1981). Based upon our examination of the record, we conclude no abuse of discretion occurred.

Appellant testified in his own defense that on January 4, 1980, he and his wife had been drinking at Jack's Place in Belle Glade. He left there to go to the Blue Bell, another drinking spot, and his wife walked home. He then explained:

I was walking down the street, so I had seen her, she wasn't even much home, I had seen her, I was looking right at her. She was walking, there was a guy walking with her. He was a little taller than me.

So I caught her with-after she left the house where I live at, we walked to the yard together. That is when I started asking, I said "Ann, who that guy walking with you?" She said "Nobody."

So we get up on the porch, I was opening the door, I said "All right, now," like that there. So I opened the door and she said something, I probably sweared at her, or something. I probably did.

Ann went on in the house, she was bending down taking-I don't know, she was taking something out of the socks or putting something in it, I don't know. She was fooling around with her socks down there. So I throwed the keys on the coffee table, I said "Let me take this gun out the car." I took the gun out the car, locked the door, come back in. I was-there was a song I was humming. So after I had the gun, I started turning it like that. But the gun was already cocked, I didn't even look at the gun or check it, or anything. I started playing with the gun. And all of the kids and all was in the room. And I walked up there, and in my dining room, that is where the girl's bedroom was, I walked up in the door, I was still fooling around with the gun. And my son said "Daddy"-the one, Robert, he sat up and looked at me he was smiling because he liked to see me do all kinds of stuff like that, you know. And the gun went off. He jumped up, he hollered "Daddy."

The testimony of the wife and two of appellant's other children painted an entirely different picture of the tragic shooting. The thirteen-year-old daughter testified that when her parents came home, her father told her mother he was going to shoot her brains out. After making this threat, appellant went to his bedroom, got his gun from the dresser, walked to the door of the other bedroom where the four children and their mother were gathered, held the gun with two hands and fired, striking the witness's younger sister.

Appellant's wife testified that after leaving Jack's Place, the couple went to a restaurant where they separated because she had to work the next morning. She walked home and sat on the porch, eating the food she had bought. When appellant arrived, he accused her of lying by telling him she had walked home alone. He then threatened to blow her brains out. She went to the children's bedroom to check on them and was hugging the youngest child on the bed when appellant appeared, holding a gun, and fired the fatal shot. Appellant's son, then a fourth-grade student, corroborated the testimony his mother and sister had given.

Were that all of the record, we might be inclined to give more credence to appellant's argument. After all, the shooting occurred in January and the trial in June, giving the alleged errant wife several months to weave a false story for herself and the children.

But the trial judge had other proof before him. One of the detectives investigating the incident testified, without objection, that two and one-half hours after the shooting appellant's wife, distraught over the plight of her husband and the death of her child, had told him the following:

We left Jack's Place, I told him I had to get up for work. When he...