Bolin v. State, 78468
| Decision Date | 21 April 1994 |
| Docket Number | No. 78468,78468 |
| Citation | 642 So.2d 540 |
| Parties | 19 Fla. L. Weekly S208 Oscar Ray BOLIN, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida Supreme Court |
James Marion Moorman, Public Defender, and Douglas S. Connor, Asst. Public Defender, Bartow, for appellant.
Robert A. Butterworth, Atty. Gen., and Candance M. Sabella, Asst. Atty. Gen., Tampa, for appellee.
Oscar Ray Bolin, Jr., appeals his conviction of first-degree murder and sentence of death. We have jurisdiction pursuant to article V, section 3(b)(1), Florida Constitution. Because of reversible error in the admission of evidence, we remand for a new trial.
On the morning of January 25, 1986, a jogger found the body of a Tampa restaurant worker in the woods near his home. The woman's abandoned car was found more than five miles from the body. A deputy ran a license tag check on one of two cars parked on the same corner the previous evening and discovered the car was registered to Oscar and Cheryl Bolin. The murder investigation stalled, however, until July 1990. Then, on a tip from Danny Coby, Indiana police interviewed his wife, the former Cheryl Bolin, about the killing. After that interview, the state indicted and tried Bolin for first-degree murder, armed robbery, and kidnapping.
Over objection Cheryl Coby testified that she was with Bolin when he "scoped out" the restaurant, that they returned home where she fell asleep, that Bolin awakened her around 2 a.m. to tell her that he had abducted and killed the victim, and that she went with him to clean up the victim's car, after which he threw away his blood-stained tennis shoes and the victim's purse. The jury convicted Bolin as charged and recommended that he be sentenced to death, which the trial court did.
As his first point on appeal, Bolin argues that the trial court erred in admitting into evidence statements made by Bolin to his wife predicated on a ruling that Bolin waived his spousal privilege by taking his ex-wife's discovery deposition. We agree with Bolin. 1
The spousal privilege is codified in section 90.504, Florida Statutes (1991), and provides, in pertinent part, as follows:
(1) A spouse has a privilege during and after the marital relationship to refuse to disclose, and to prevent another from disclosing, communications which were intended to be made in confidence between the spouses while they were husband and wife.
Cheryl Coby disclosed statements Bolin made to her in her interviews with police, during her discovery deposition taken by Bolin and her deposition to perpetuate testimony taken by the state, 2 and at trial. The defense objected both before and at trial that Mrs. Coby could not relate Bolin's statements because the spousal privilege had not been waived. The trial court, however, agreed with the state that questioning her about Bolin's statements during the discovery deposition, even though that deposition was kept confidential, constituted a waiver and allowed the state to introduce those statements through his ex-wife's testimony at trial.
This issue appears to be one of first impression because neither we nor the parties have found any caselaw that is directly on point. An analogous situation exists, however, with the testimonial privilege set out in the deadman's statute, section 90.602, Florida Statutes (1991). 3 Numerous Florida courts have considered the effect of taking and using discovery depositions on the privilege in the deadman's statute and have uniformly concluded that, while using a discovery deposition waives the privilege, merely taking such a deposition does not. E.g., Small v. Shure, 94 So.2d 371, 374 (Fla.1957) (); In re Estate of McCoy, 445 So.2d 680 (Fla. 2d DCA 1984); Harrell v. Florida First National Bank, 354 So.2d 420 (Fla. 1st DCA 1978); In re Estate of Bechtel, 348 So.2d 927 (Fla. 2d DCA 1977), cert....
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Bolin v. State
...those charges, but his convictions were overturned by the Florida Supreme Court. Bolin v. State, 796 So.2d 511 (Fla.2001); Bolin v. State, 642 So.2d 540 (Fla.1994). Before this third trial, the State entered a nolle prosequi on the kidnapping and robbery charges and proceeded only on the ch......
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Bolin v. State
...jurisdiction pursuant to article V, section 3(b)(1) of the Florida Constitution. In accord with our decision in Bolin v. State, 642 So.2d 540 (Fla.1994) (hereinafter Bolin I ), we hold that evidence protected by the spousal privilege was improperly admitted in this case. As in Bolin I, the ......
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State v. Bolin
...therefore, his former wife's testimony was inadmissible to the extent that it was based on privileged communications. See Bolin v. State, 642 So.2d 540, 541 (Fla.1994). The supreme court further concluded that the former wife's observations of incriminating evidence were admissible in a new......
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Bolin v. State
...reasoning that once the privilege was waived, the privilege could not be asserted in this subsequent proceeding. However, in Bolin v. State, 642 So.2d 540 (Fla.1994), we reversed the Circuit Court of Hillsborough County and held that the trial court erred in its ruling that the discovery de......