Corley v. State, 90-1560

• Citation: 586 So.2d 432
• Decision Date: 12 September 1991
• Docket Number: No. 90-1560,90-1560
• Parties: 16 Fla. L. Weekly D2411 Darryl Wayne CORLEY, Appellant, v. STATE of Florida, Appellee.
• Court: Court of Appeal of Florida (US)

Page 432

586 So.2d 432

16 Fla. L. Weekly D2411

Darryl Wayne CORLEY, Appellant, v. STATE of Florida, Appellee.

No. 90-1560.

District Court of Appeal of Florida,

First District.

Sept. 12, 1991.

Rehearing Denied Oct. 28, 1991.

Daniel S. Brim, Fernandina Beach, for appellant.

Robert A. Butterworth, Atty. Gen., Gypsy Bailey, and Charles T. Faircloth, Jr., Asst. Attys. Gen., Tallahassee, for appellee.

ZEHMER, Judge.

Darryl Wayne Corley appeals a final judgment adjudicating him guilty of resisting an officer with violence and battery on a law enforcement officer, and sentencing him as a habitual violent felony offender to two consecutive ten-year terms of imprisonment. Corley raises three issues on this appeal. We reverse and remand for a new trial.

The state filed an information charging Corley with one count of resisting an officer with violence and one count of battery on a law enforcement officer. During cross-examination of the arresting officer, Officer Schwab, at trial, the defense counsel asked the following question:

Q: Officer, are you aware of the procedures and discipline that you would face if you used excessive force on an arrestee in the future; Isn't that correct?

The prosecutor objected to the relevancy of the question, and the trial judge sustained the objection. During a side-bar conference, the defense counsel argued that the question was proper because the officer had a motive to be untruthful if a truthful admission would subject him to civil or criminal discipline. The defense counsel also stated that he was entitled to "establish that the witness' knowledge of these factors is contained in the witness' mental processes," and that he intended to introduce evidence that excessive force was used in the case, "although I do not believe it's a necessary predicate to be asking these questions." The prosecutor responded that in order for the defense to be permitted to ask the question, it was required first to show that there was some kind of complaint filed against the officer, that the officer needed to use excessive force, or that the officer was in jeopardy of some kind of discipline. Otherwise, the question was irrelevant. The trial judge then ruled that:

To lay the predicate you have to lay the predicate there was excessive force, or even an allegation of excessive force before you can show that. So far it is not relevant to anything that has come up yet.

The defense counsel then stated that he would like to reserve the right to recall the officer, and the judge granted the request.

The defense subsequently presented Corley's testimony, which included allegations that the officer used excessive force in arresting him. Then the defense rested. After conferring with Corley, the defense counsel stated that he would like to recall Officer Schwab. The trial judge found that the defense had "laid a predicate that is sufficient to get in the officer's testimony about his knowledge regarding disciplinary actions and all that if you want to offer that." The judge then allowed the defense to recall the officer, over the state's objection that there should be a proffer and that it was prejudiced by the defense's failure to give the state prior notice of the defense of excessive force. The defense then questioned the officer about his knowledge of disciplinary procedures that could be taken against him if he used excessive force in making an arrest. The officer testified that he was aware of a procedure and discipline that he would face if he used excessive force in making an arrest. The officer also testified that other than suspension by the police department, he was unaware of any other procedures and discipline that could be taken against him for the use of excessive force. The defense subsequently made a motion for a mistrial based on the judge's limitation of defense cross-examination of the officer, arguing that as a result of the judge's ruling, the defense was forced to make a strategic decision to call the officer as its own witness and, thereby, have only one closing argument instead of the right to open and have rebuttal during summation. After the trial judge denied the motion, the state was permitted to open the closing arguments and rebut the defense's argument. During its argument, the prosecutor stated:

Ladies and gentlemen, the defendant's story in this case was so weak that he had to put on the officer who arrested him. He had to put him on the stand and try to make him testify about claims and lawsuits and things that don't even exist.

That's how weak his story is, ladies and gentlemen.

The jury verdict found Corley guilty as charged, and the circuit court entered judgment in accordance with the verdict and sentenced Corley as a habitual violent felony offender to two consecutive ten-year terms of imprisonment. In a separate written sentence in which the circuit court found that Corley was a habitual violent felony offender, the court also ordered that Corley "shall not be eligible for gain-time granted by the Department of Corrections."

Corley first contends that the circuit court erred in limiting the defense counsel's cross-examination of the key state witness, Officer Schwab. Corley argues that during cross-examination of the officer, the defense had an absolute right to elicit facts showing the officer's bias, motive, or self interest, and that the defense was not required to lay any predicate prior to conducting this line of questioning. Corley also argues that the trial judge's allowing the defense to recall the officer as its own witness to elicit the evidence did not remedy the error, because the defense was then forced to give up the important procedural right of opening and rebuttal during summation and because the officer's testimony on recall was so far removed from his key testimony in the state's case as to be ineffective.

It is widely recognized that a defendant has the right to fully cross-examine an adverse witness to reveal any bias, prejudice, or improper motive that the witness may have in testifying against the defendant. Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974); Lewis v. State, 570 So.2d 412 (Fla. 1st DCA 1990); Yolman v. State, 469 So.2d 842 (Fla. 2d DCA 1985); McDuffie v. State, 341 So.2d 840 (Fla. 2d DCA 1977). This right "becomes an important right to a defendant in a criminal case where the jury must know of any improper motives of a prosecuting witness in determining that witness' credibility." McDuffie v. State, 341 So.2d at 841. The matters tending to show bias or prejudice that the defendant wishes to elicit on cross-examination do not have to be within scope of direct examination. Nor is the defendant required to lay any other predicate prior to eliciting the information on cross-examination. Yolman v. State, 469 So.2d at 843; McDuffie v. State, 341 So.2d at 841.

In this case, the circuit court improperly limited...