Carroll v. State, No. 82-2565

CourtCourt of Appeal of Florida (US)
Writing for the CourtNESBITT; BASKIN; FERGUSON; PER CURIAM; SCHWARTZ; DANIEL PEARSON; SCHWARTZ, C.J., and JORGENSON; HUBBART; BASKIN; NESBITT; BASKIN; PER CURIAM; HUBBART
Citation497 So.2d 253,10 Fla. L. Weekly 2724
Parties10 Fla. L. Weekly 2724, 11 Fla. L. Weekly 2423, 12 Fla. L. Weekly 370 John J. CARROLL, Appellant, v. The STATE of Florida, Appellee.
Decision Date10 December 1985
Docket NumberNo. 82-2565

Page 253

497 So.2d 253
10 Fla. L. Weekly 2724, 11 Fla. L. Weekly 2423,
12 Fla. L. Weekly 370
John J. CARROLL, Appellant,
v.
The STATE of Florida, Appellee.
No. 82-2565.
District Court of Appeal of Florida,
Third District.
Dec. 10, 1985.
On Motions for Rehearing Nov. 18, 1986 and Jan. 27, 1987.

Page 254

Bennett H. Brummer, Public Defender, and Elliot H. Scherker, Asst. Public Defender, for appellant.

Jim Smith, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., for appellee.

Before NESBITT, BASKIN and FERGUSON, JJ.

NESBITT, Judge.

The defendant appeals his conviction of third degree murder, armed burglary and armed robbery without a firearm. We reverse.

The first issue raised by the defendant that we will consider is whether the trial court erred in allowing a prior consistent statement of one of the witnesses to be introduced through the testimony of Detective Parmenter, the lead investigator on this case. To fully resolve this issue, we must consider all the evidence and testimony presented while resolving all conflicts in favor of the prevailing party, the state.

Judy Trevino was the manager of a Sambo's restaurant in Naranja Lakes. The body of the homicide victim was discovered by Trevino in the early morning of February 25, 1981, in a trailer which she had shared with the victim. The victim had been a cook at the Sambo's restaurant managed by Trevino. On the night of the incident, Trevino left for the restaurant at about 9:30 p.m. When she returned at 12:30 a.m., Trevino found the trailer in disarray, numerous items missing, and then discovered the victim's body. The victim's automobile, a brown 1969 Cadillac, was missing from the driveway, where it had been when Trevino had left for work.

The victim died as the result of a single gunshot wound to the left side of the neck, probably inflicted while he was sleeping. Metro-Dade detectives determined that the entry into the trailer had been made through a window of the master bedroom. They discovered a ladder leaning against the wall outside the bedroom. A paper bag containing a Sambo's uniform was found at the base of the ladder.

The uniform in the paper bag was identified as belonging to the defendant who had begun working at Sambo's about four days earlier. The defendant had just moved into a trailer with Rudy Martin, another Sambo's employee. Martin's trailer was located about 300 yards from Trevino's trailer.

Martin's testimony indicated that on the night of the homicide, the defendant left their trailer on his way to work at about 9:30 p.m. The defendant left on foot, as the restaurant was only about four blocks away, and he left carrying his Sambo's uniform in a paper bag. The defendant never reported to work that night. At about 11:00 p.m., the defendant returned to Martin's trailer without the bag and he was not wearing his uniform. The defendant informed Martin he was going to live with his brother and proceeded to gather his belongings. The defendant gave Martin the key to the trailer and departed. Martin testified that just prior to the defendant's return to the trailer he had heard a car drive up, and that when the defendant left the trailer, he heard a car door close and a car drive away. Martin described the car as having "long, skinny taillights ... [and] it looked like a Cadillac."

Glenn Brown, a neighbor of Trevino, testified that he heard a gunshot at approximately 10:00 p.m., February 24, 1981. Upon hearing the shot, Brown went outside his trailer and looked up and down the street. While on the street, Brown saw what he described as a small male's hand twice reach out of the doorway of Trevino's trailer and pull the open door closed. Brown returned to his trailer and shortly thereafter he heard the victim's Cadillac crank up. He indicated that he recognized the sound of the car because "[i]t had a loud sound to it. Like a bad muffler...." He also indicated that the car sped off in the direction of Martin's trailer.

In addition to this testimony, the state introduced into evidence a pocketknife seized from the defendant when he was

Page 255

arrested in New York. 1 This knife was identified as belonging to the victim and was last seen in the possession of the victim on the afternoon of February 24, 1981. Fingerprints had been lifted during the initial investigation but none matched the defendant's fingerprints. None of the property stolen the night of the homicide was ever recovered. The jury returned verdicts against the defendant finding him guilty of third degree murder, armed burglary and robbery without a firearm.

It is obvious that Rudy Martin's testimony was crucial to the state's case. It was his testimony which indicated that the defendant had left that evening with his uniform in a paper bag; that he had returned later that night without his uniform to gather his belongings and vacate the trailer; and that he left in a car that "looked like a Cadillac." Martin's testimony tied together several elements of the state's case and was an important link in the chain of circumstantial evidence upon which the case against the defendant was based. Martin's testimony at trial, however, was far from consistent.

Martin suffers from a learning disability. He testified at trial that he sometimes has trouble remembering things and expressing himself. At a competency hearing held outside the presence of the jury, the court determined that Martin was competent to testify and could give truthful testimony. The court, however, called Martin as a court witness "in the interest of justice" to allow both sides some latitude in asking leading questions because of Martin's problems with expressing himself.

It is clear from our reading of Martin's testimony that he was highly susceptible to suggestion. On direct examination, Martin testified that he "saw [the defendant] put the uniform in the bag" just prior to the defendant leaving for work with the paper bag on February 24, 1981. In addition, Martin testified that the car outside his trailer when the defendant later returned "looked like it was a Cadillac" because "[i]t had long, skinny taillights." On cross-examination, Martin testified that the defendant "walked out with a paper bag and I saw him put something in it. I don't know what he put in it. It could have been the uniform. It could have been something else." With regard to the car, Martin testified on cross-examination as follows:

Q. Isn't it true that you told the police that you didn't know what type of car it was?

A. I didn't know at the time, no.

Q. So at that time you didn't know what type of car it was?

A. I knew it was a Cadillac that [the victim] had.

Q. But you didn't know what type of car you thought [the defendant] might have driven away in; did you?

A. No.

....

Q. You testified a minute ago that you know--knew for a fact that it was a Cadillac; right?

A. Yes, it was a Cadillac.

Q. But you just testified that you didn't know what type of car it was; right?

A. Yeah.

Q. So you don't know; do you?

A. No.

On re-direct, the following colloquy took place:

Q. Did you see [the defendant] pick up a brown uniform and put it in a bag?

A. Yes.

....

Q. Okay, Rudy, my question is: Did you see [the defendant]?

A. Yes, I saw him. I don't know if he put the top or bottom in the bag.

Q. But you saw him put the uniform in the bag?

A. Yes.

Q. You're sure about that?

A. Yes.

Q. Positive?

Page 256

A. Yeah.

Q. Were you mistaken a few moments ago when you told [defense counsel] that you weren't sure what was in the bag?

A. Yes, sir.

Q. You're sure now?

A. Yes, sir.

On re-cross-examination:

Q. But you don't know what he put in that bag?

A. I think it was a uniform.

Q. But you don't know; do you?

A. I think it was a uniform.

Because of Martin's obvious susceptibility to suggestion, defense counsel during cross-examination raised an implication that the police, when initially questioning Martin, may have unwittingly planted certain information in Martin's mind which at trial he remembered as fact.

In an attempt to bolster Martin's credibility, therefore, the state called Detective Parmenter as a witness immediately after Martin and elicited from the detective statements Martin had given to him on the morning following the homicide. Over the defendant's objection, Parmenter testified that he had spoken with Martin on the morning after the homicide and Martin had told him that the defendant had picked up his uniform and put it in a plain paper bag and left with the bag for work the evening before. In addition, Parmenter testified that Martin had told him that on the defendant's second departure from the trailer that night, the defendant had left in a car with long taillights like a Cadillac.

Prior to the admission of this testimony, defense counsel objected, apparently on the unstated ground of hearsay. The objection was initially sustained and counsel for both the state and the defendant went into a discussion with the court at side-bar. During this side-bar conference, the state argued to the trial court that the testimony was admissible as a prior consistent statement under section 90.801(2)(b), Florida Statutes (1979). The trial court apparently agreed and overruled the objection allowing the testimony into evidence. On appeal, the defendant claims the admission of this testimony improperly permitted the state to bolster the testimony of a critical witness with his prior consistent statement. The state's only colorable argument on appeal in support of the admission of the testimony is that it was admissible under section 90.801(2)(b), Florida Statutes (1979).

The well established rule in Florida is that a witness' trial testimony may not be corroborated by his own prior consistent statement. Van Gallon v. State, 50 So.2d 882 (Fla.1951); McElveen v. State, 415 So.2d 746 (Fla. 1st DCA 1982); Holliday v. State, 389 So.2d 679 (Fla. 3d DCA 1980); Perez v. State, 371 So.2d 714 (Fla. 2d DCA 1979);...

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22 practice notes
  • Francis v. State, No. SC94385.
    • United States
    • United States State Supreme Court of Florida
    • 20 Diciembre 2001
    ...regarding his activities around the time of the murders, inter alia, sufficient to establish probable cause to arrest); Carroll v. State, 497 So.2d 253 (Fla. 3d DCA 1985) (determining that officers had probable cause where the defendant's roommate informed police, inter alia, that the defen......
  • Smith v. State, No. 97-339
    • United States
    • Court of Appeal of Florida (US)
    • 4 Noviembre 1998
    ...Page 1022 arresting officer is not required to have sufficient firsthand knowledge to constitute probable cause. See Carroll v. State, 497 So.2d 253 (Fla. 3d DCA 1985). It is enough that the police officer initiating the chain of communication either had first-hand knowledge or received his......
  • State v. Peterson, No. 92,692.
    • United States
    • United States State Supreme Court of Florida
    • 17 Junio 1999
    ...of the rule are not entirely clear. Florida courts have tended to frame this doctrine in very sweeping terms, e.g., Carroll v. State, 497 So.2d 253 (Fla. 3d DCA 1985), review denied, 511 So.2d 297 (Fla. 1987), though we obviously are bound by any contrary federal law in the Fourth Amendment......
  • Voorhees v. State, No. 83380
    • United States
    • United States State Supreme Court of Florida
    • 19 Junio 1997
    ...virtually the same position as the authorities in Pasco County, Florida based upon the "fellow officer" rule. Carroll v. State, 497 So.2d 253 (Fla. 3rd DCA 1985). Although it is clear that the standing of the officers in Wayne County, Mississippi rises or falls with the standing o......
  • Request a trial to view additional results
22 cases
  • Francis v. State, No. SC94385.
    • United States
    • United States State Supreme Court of Florida
    • 20 Diciembre 2001
    ...regarding his activities around the time of the murders, inter alia, sufficient to establish probable cause to arrest); Carroll v. State, 497 So.2d 253 (Fla. 3d DCA 1985) (determining that officers had probable cause where the defendant's roommate informed police, inter alia, that the defen......
  • Smith v. State, No. 97-339
    • United States
    • Court of Appeal of Florida (US)
    • 4 Noviembre 1998
    ...Page 1022 arresting officer is not required to have sufficient firsthand knowledge to constitute probable cause. See Carroll v. State, 497 So.2d 253 (Fla. 3d DCA 1985). It is enough that the police officer initiating the chain of communication either had first-hand knowledge or received his......
  • State v. Peterson, No. 92,692.
    • United States
    • United States State Supreme Court of Florida
    • 17 Junio 1999
    ...of the rule are not entirely clear. Florida courts have tended to frame this doctrine in very sweeping terms, e.g., Carroll v. State, 497 So.2d 253 (Fla. 3d DCA 1985), review denied, 511 So.2d 297 (Fla. 1987), though we obviously are bound by any contrary federal law in the Fourth Amendment......
  • Voorhees v. State, No. 83380
    • United States
    • United States State Supreme Court of Florida
    • 19 Junio 1997
    ...stood in virtually the same position as the authorities in Pasco County, Florida based upon the "fellow officer" rule. Carroll v. State, 497 So.2d 253 (Fla. 3rd DCA 1985). Although it is clear that the standing of the officers in Wayne County, Mississippi rises or falls with the standing of......
  • Request a trial to view additional results

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