Barr v. State

• Decision Date: 19 May 1987
• Docket Number: Nos. 86-281,86-361,s. 86-281
• Parties: 12 Fla. L. Weekly 1284 Gene BARR and Reginald McQueen, Appellants, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 175

507 So.2d 175

12 Fla. L. Weekly 1284

Gene BARR and Reginald McQueen, Appellants, v. The STATE of Florida, Appellee.

Nos. 86-281, 86-361.

District Court of Appeal of Florida Third District.

May 19, 1987.

Panza, Maurer, Maynard & Platow and Thomas Panza, Fort Lauderdale, Bennett H. Brummer, Public Defender and Susan S. Lerner, Special Asst. Public Defender, for appellants.

Robert A. Butterworth, Atty. Gen., and Richard L. Kaplan, Asst. Atty. Gen., for appellee.

Before BARKDULL, HENDRY, and NESBITT, JJ.

NESBITT, Judge.

Barr and McQueen, codefendants below, appeal from their convictions of official misconduct as defined in section 839.25(1)(b), Florida Statutes (1983). ¹ We find that the trial court correctly denied the defendants the right to employ the defense of recantation to the charge of official misconduct and affirm.

Barr and McQueen were charged with official misconduct for falsifying the police reports they filed concerning a burglary investigation. The reports indicated that McQueen had discovered a gun case, allegedly stolen during the burglary, in the back of his patrol car after transporting the burglary suspect to the station in the car. In truth, the gun was not discovered until the following day by another officer making a routine search of the vehicle. The reports were falsified at the suggestion of yet another officer in an attempt to avoid any reprimand or penalty, since McQueen had neglected to search the car at the end of his shift as required by regulation. The following morning, after another officer had reported that false reports had been filed in this matter, the defendant's supervisor initiated an investigation. Only after being questioned about the reports did Barr and McQueen orally recant the untruthful statements they had made in their reports, although it was not apparent that they had knowledge that an investigation had begun.

At the conclusion of the trial, the trial court denied the defendants' motion for a judgment of acquittal based upon the defense of recantation. The trial court also denied their request to instruct the jury on the defense of recantation. The jury then returned guilty verdicts for both defendants of the charge of official misconduct. Barr and McQueen subsequently brought these appeals, which have been consolidated, challenging the trial court's denial of their motion for a judgment of acquittal and their motion to instruct the jury on the defense of recantation.

The common law defense of recantation has previously been held applicable only to the crimes of perjury and obstructing justice. We decline to extend it to the statutory offense of official misconduct.

The defense of recantation is a non-exculpatory defense which is offered to a defendant as a matter of public policy in order to aid the search for truth in the judicial process. See Carter v. State, 384 So.2d 1255, 1257 (Fla.1980); Brannen v. State, 94 Fla. 656, 114 So. 429 (1927); State v. Bielecki, 196 N.J.Super. 332, 482 A.2d 527 (App.Div.), cert. denied, 99 N.J. 216, 491 A.2d 710 (1984). See generally Robinson, Criminal Law Defenses: A Systematic Analysis, 82 Colum.L.Rev. 199, 230-31 (1982) (defining various non-exculpatory public policy defenses). This policy is effected by encouraging the defendant to reveal the truth without fear of criminal prosecution for perjury. Since the decision to allow this defense is one of public policy, the decision to extend its applicability to an offense entirely different from that of perjury must also be a question of public policy. It is the legislature which is entrusted with, and better equipped to handle, decisions concerning public policy matters. See Zorzos v. Rosen, 467 So.2d 305 (Fla.1985); Shands Teaching Hosp. & Clinics, Inc. v. Smith, 480 So.2d 1366, 1367 (Fla. 1st DCA 1985) (Barfield, J., concurring), aff'd, 497 So.2d 644 (Fla.1986); see also Keaton v. Kroger Co., 143 Ga.App. 23, 237 S.E.2d 443 (1977). Therefore, the decision to extend the common law defense of recantation to the offense of official misconduct is a public policy matter which should be left to the legislature. Cf. Zorzos, 467 So.2d at 305 (decision to create a cause of action for loss of parental consortium best left to legislature with its greater ability to study and circumscribe the cause); Illinois v. Gray, 146 Ill.App.3d 714, 100 Ill.Dec. 204, 496 N.E.2d 1269 (1986) (court refused to extend recantation, a statutory defense to perjury, to the offense of obstructing justice). But cf. P.P. v. State, 466 So.2d 1140 (Fla. 3d DCA 1985) (extending defense of recantation to offense of obstructing justice by giving false information, finding that the underlying policy of both that offense and perjury to be the same).

Second, even assuming that we may properly decide this issue, public policy does not favor the extension of the defense of recantation to the offense of official misconduct. This court previously held that recantation was an applicable defense to the offense of obstructing justice by giving false information because the underlying policy in both cases is the same, that is, to encourage witnesses to tell the truth and correct previous falsehoods without fear of criminal prosecution, if corrected before any harm is done. P.P., 466 So.2d at 1141. This same policy is not applicable to the offense of official misconduct.

Section 839.25 requires that an offending act be committed with a corrupt intent. By definition, the corruption element seeks to prohibit any act which would be inconsistent with the proper performance of a public duty. See § 838.014, Fla.Stat. (1985). Though this element may not be sufficiently defined by chapter 838 to cure an otherwise constitutionally infirm statute, see State v. DeLeo, 356 So.2d 306 (Fla.1978) (holding that the element of corruption does not cure the susceptibility of section 839.25(1)(c) to arbitrary application), it sufficiently demonstrates that the legislature, in enacting section 839.25, originally enacted as part of chapter 838, intended more than...