Coco v. State

• Decision Date: 20 January 1953
• Parties: COCO v. STATE.
• Court: Florida Supreme Court

Page 892

62 So.2d 892

COCO v. STATE.

Supreme Court of Florida, en Banc.

Jan. 20, 1953.

Whitaker Brothers, Tampa, and Hubbard & Carr, Miami, for appellant.

Richard W. Ervin, Atty., Gen., and William A. O'Bryan, Asst. Atty. Gen., for appellee.

HOBSON, Chief Justice.

Appellant (defendant below) was charged with first degree murder in and by an indictment returned by the Grand Jury of Dade County, Florida, on March 29, 1951. He entered a plea of not guilty and the case was then tried before a jury which trial began on June 8, 1951. At the conclusion of the trial the jury returned a verdict of guilty of murder in the second degree. Counsel for appellant in due course filed a motion for a new trial, which motion was denied. On the 18th day of June, 1951, the trial judge entered an order adjudging the defendant guilty of the offense of murder in the second degree and pronounced judgment and sentence in the following language:

'It Is, Therefore, the judgment of the law and the sentence of this Court that you, Edward Coco, also known as Eddie Coco, be, and you are hereby sentenced to confinement in the State Prison at hard labor for and during the term or period of your natural life.'

Notice of appeal was filed on June 19, 1951.

Numerous assignments of error were filed by the appellant and predicated upon said assignments of error counsel for appellant posed several questions. We shall deal with but two of these questions, namely questions numbered 1 and 5. These questions read respectively as follows:

1. 'Where the testimony utterly fails to show any motive of any kind on the part of the defendant to take the life of deceased or to do him any bodily harm at all; and where the testimony of only one witness purported to place the defendant at the scene of the homicide at the time of the fatal shooting, and this witness was a long-time friend and employee of the deceased, and the testimony of this witness identifying the defendant is not only uncorroborated, but is weak, uncertain and unconvincing, and shows it is based upon guesswork and conjecture and bears the earmarks of falsity and is thoroughly impeached by the testimony of a white lady, testifying as a State witness, is not such evidence legally insufficient to support a verdict of guilty and do not the ends of justice require the granting of a new trial?'

5. 'Where the State places upon the stand a finger-print expert who testifies upon direct examination minutely and in detail to lifting finger-prints from the pistol which was admitted in evidence upon the theory that it was the murder weapon, and who testified as to comparison of finger-prints which had been admitted in evidence, is it not prejudicial error for the trial judge to deny defendant's counsel the right on cross examination, to ask said expert if he did not, immediately after lifting said finger-prints from said weapon, compare the same with the finger-prints of defendant, and from such comparison at said time find that the same did not correspond, and if he did not at said time, from such comparison, find such difference and divergence in said finger-prints as to cause him, as such expert, to conclude that the finger-prints which he had lifted from said weapon were not defendant's and had not been made by defendant?'

It is the contention of counsel for appellant that both of these questions which were answered in the negative by the trial judge should have been answered in the affirmative. It is the position of counsel for the State that if errors were committed in the trial of this case no one of the alleged errors was harmful or prejudicial to appellant and that he did receive a fair and impartial trial. However, upon a careful consideration of the record as a whole, we are forced to a contrary view.

The Attorney General takes the position that Question No. 1 as posed by counsel for appellant is not supported by the record except insofar as it states that there was no showing of motive for the crime and that there was apparently only one witness who could place the appellant at the scene of the homicide at the time of the fatal shooting. It is the contention of the Attorney General with reference to Question No. 5 that the witness Lieut. Bruce Simmons, although he was supervisor of the Identification Bureau, Miami Beach Police Department, was placed upon the stand and gave direct testimony for the sole purpose of supplying a clear, definite and certain identification of State's Exhibit No. 8 and of showing that State's Exhibit No. 8 and State's Exhibit No. 3 had been sent to the Federal Bureau of Indentification in Washington, D. C., and that Lieut. Simmons' testimony was given as a predicate for the subsequent testimony of the fingerprint expert or examiner Ronald G. Wittmus, who was an employee of the Federal Bureau of Identification. Counsel for the State argues that witness Simmons 'in no way testified about a comparison made by himself of the finger-prints on State's Exhibit 3 and State's Exhibit 8, nor did he testify as to any opinion he might have reached from such a comparison.'

A careful and studied examination of the transcript of record discloses that State's Exhibit No. 1-L for identification was the file copy of the Miami Beach Police Department's State's Exhibit No. 8. Said Exhibit was a copy of fingerprints taken from the pistol by witness Bruce Simmons, according to his own testimony, while State's Exhibit No. 3 was the Washington copy of alleged fingerprints of Coco taken by Officer Gorham on February 1st following the homicide.

Witness Simmons not only testified in detail on direct examination as to the manner in which he lifted the fingerprints from the revolver but he also testified as to what he did with them and he further testified to a comparison between the two exhibits. I quote from the record:

'Q. (By Mr. DuVal) I show you State's Exhibit No. 1-L for identification, and State's Exhibit No. 3, and ask you what comparison there is in the two? A. Well, those are both finger-print cards containing the finger-prints of the same person, Eddie Coco.'

Counsel for appellant, at the beginning of his cross-examination of Lieut. Simmons, started to ask a question but got no further than the utterance of the following words: 'You made a comparison * * *', when the State's attorney interposed an objection. Whereupon the court excused the jury from the court room and after argument of counsel sustained the objection made by the State's attorney on the ground that counsel for appellant did not have the right to cross-examine the witness as he was preparing to do because it was improper cross-examination. He obviously held that there was no direct testimony given by the witness which would justify the proposed cross-examination and that counsel might use Lieut. Simmons as appellant's own witness in order to present to the jury the testimony which he sought to elicit upon cross-examination. At this juncture it is deemed appropriate to state just what counsel for appellant intended to bring out by his cross-examination. Counsel proffered 'to show, if permitted to examine the witness, that under date of February 1, 1951, Lieut. Bruce Simmons wrote a communication, directed to the Chief of Police as follows: 'At 9 o'clock a. m. this date, Detective William Murray brought a white kitchen-type garbage can to the identification bureau which contained a blue steel Colt pocket positive revolver with a 32 caliber 2 1/2 inch barrel, No. 75611. I have photographed same, as it lay in the garbage can. I checked it for latent prints and found two legible whirls with left delta shown on the cylinder. These were lifted and they do not compare with those of Eddie Coco, our No. A-17210. Further examination of the revolver showed that there were no cartridges in the cylinder and that the physical condition of the inside of the barrel, lack of burnt powder smell, absence of burnt power (sic) at the muzzle, breech or face of the cylinder, indicates that the revolver has not been fired since last cleaning. However, a ballistics test will establish whether it was used in this case. The lifted prints do not compare with those of Rosalie Coco, alias Plass, our No. A-17212. Respectfully submitted, Lt. Bruce Simmons.' (Italics supplied.)

It is our conclusion that the trial judge committed error in not allowing the cross-examination because we are convinced that it was proper cross-examination and that the direct testimony of Lieut. Simmons in which he sketched in part but not in toto what he did with--what use he made of--the fingerprints and his testimony hereinabove delineated in which he did make a comparison and testified that both fingerprint cards contained the fingerprints of the same person, Eddie Coco, justified the proposed cross-examination.

It is too well settled to need citation of authority that a fair and full cross-examination of a witness upon the subjects opened by the direct examination is an absolute right, as distinguished from a privilege which must always be accorded to the person against whom the witness is called and this is particularly true in a criminal case such as this wherein the defendant is charged with the crime of murder in the first degree. For the sake of emphasis we make the...