Brown v. State, AK-264

• Decision Date: 09 May 1983
• Docket Number: No. AK-264,AK-264
• Citation: 431 So.2d 247
• Parties: Robert BROWN, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 247

431 So.2d 247

Robert BROWN, Appellant, v. STATE of Florida, Appellee.

No. AK-264.

District Court of Appeal of Florida First District.

May 9, 1983.

David J. Busch, Asst. Public Defender, Tallahassee, for appellant.

Jim Smith, Atty. Gen., and Barbara Ann Butler, Asst. Atty. Gen., Jacksonville, for appellee.

JOANOS, Judge.

Appellant was found guilty of and sentenced for attempted manslaughter. He contends that the trial court erred in refusing to allow a proffer of testimony and in refusing to give a requested jury instruction, and that there is no crime of attempted manslaughter under the Florida Statutes. We affirm, but certify the question raised by the third point as one of great public importance.

Appellant was charged with attempted murder of Officer Rein, a ten year veteran of the sheriff's department who also worked after hours as a security officer at the Greyhound bus station. The charges resulted from an incident in which Officer Rein chased appellant through the bus station and a neighboring restaurant before apprehending him, at which time during a struggle, Officer Rein's revolver was fired. The testimony differed primarily regarding the events which preceded the chase and the circumstances of the firing of the gun. Appellant testified at trial and his version of the facts preceding the chase was essentially that after he had purchased a bus ticket and asked Officer Rein where he could buy a sandwich, Rein began acting strangely and, for no apparent reason, drew his revolver and began cocking the hammer back and forth and told appellant to "Get down before I blow your f... brains out," and when appellant attempted to show that he was not armed and asked Rein what was wrong, Rein merely continued this behavior, so appellant ran and the chase ensued.

During cross-examination of Officer Rein, the defense attempted to inquire into Rein's alleged domestic difficulties which supposedly occurred just a few days prior to the incident giving rise to the charges against appellant. After extensive argument by counsel regarding what she expected Officer Rein's testimony to include and the relevancy thereof, the trial judge declined to allow even a proffer of that testimony based on his determination that it was not relevant. It is error to refuse to allow a proffer of evidence, which is necessary to ensure full and effective appellate review, see Hawthorne v. State, 408 So.2d 801 (Fla. 1st DCA 1982); Piccirrillo v. State, 329 So.2d 46 (Fla. 1st DCA 1976); Francis v. State, 308 So.2d 174 (Fla. 1st DCA 1975). This court has also held, however, that the error in failing to permit a proffer can be harmless, see Johnson v. State, 338 So.2d 252 (Fla. 1st DCA 1976), in which, "[f]rom the statements made on the record by appellant's counsel, it appears that he desired to show that because appellant's mother had accused Davis of stealing her silver, Davis was giving false testimony against appellant. This is rather remote, as the trial judge pointed out and, in addition, appellant when he took the stand testified to it. Thus the jury had the inference before it for such weight as it considered should be given to it."

The primary purpose of a proffer is to include the proposed answer and expected proof in the...