Cruz v. State

• Decision Date: 14 April 1983
• Docket Number: No. AJ-349,AJ-349
• Citation: 437 So.2d 692
• Parties: Roberto CRUZ, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 692

437 So.2d 692

Roberto CRUZ, Appellant, v. STATE of Florida, Appellee.

No. AJ-349.

District Court of Appeal of Florida First District.

April 14, 1983.

Rehearing and Rehearing En Banc Denied

Sept. 19, 1983.

Neal L. Betancourt, Jacksonville, for appellant.

Jim Smith, Atty. Gen., Tallahassee, Kathryn L. Sands, Asst. Atty. Gen., Jacksonville, for appellee.

ERVIN, Judge.

Cruz appeals his convictions for the offenses of conspiracy to commit robbery with a firearm and of robbery with a firearm. Because we find that the lower court unduly restricted appellant's right of cross-examination of the state's key witness, we reverse and remand this cause for a new trial.

Due to our disposition of this case, we will not address at length appellant's other points, i.e., that the lower court abused its discretion in refusing to reopen the evidence to allow the defendant to take the stand in his own behalf; that the lower court erred in denying defendant's motion for new trial on the ground that the court permitted a prosecution witness to testify that he had received certain money from the defendant as payment for his part in the robbery; that the lower court erred in denying the motions for judgment of acquittal on the ground that there was insufficient evidence to go to the jury on the question of whether defendant had participated either in the planning of the robbery or in the actual robbery itself; that the court erred in permitting a prosecution witness to testify on the ground that the state violated the rule of discovery by failing to notify defendant until just before the trial that the witness would appear on behalf of the state; that the court erred in giving to the jury an instruction on the law of principals, because the state had failed to request such an instruction at the time of the charging conference, and that the court erred in denying a motion for mistrial due to leading questions asked by the state of its own witnesses as to the date of the offense after a statement of particulars had been filed by the defense.

None of the above alleged errors constitutes reversible error. It also appears from our examination of the record that there was sufficient evidence to go before the jury. In our view many of the rulings alleged as errors involve a proper exercise of discretion which we find was not abused. Moreover, since this case must be retried for the reasons stated infra, certain of the assigned errors, particularly those relating to inadequate notice to the defense, will probably not recur on retrial.

The state's evidence against the defendants Cruz and Gilley, whose case was consolidated with that of Cruz for trial, consisted primarily of the testimony of Michael Smith, who was also charged with the same offenses for which Cruz and Gilley were then on trial. Smith, who on July 27, 1981 was an employee of McDonald's Fast-Food Restaurant located in Jacksonville, Florida, testified that early that same evening he, Cruz, Gilley, and one Roundtree had discussed a plan to rob McDonald's. The plan, which was successfully carried out, required Smith to leave the back door to the establishment unlatched, Gilley and Roundtree to enter and commit the robbery, and Cruz to drive the "getaway" car.

None of the robbers was identified as each wore stocking masks. There was additional circumstantial evidence from another employee, who had known Cruz when he had been employed at McDonald's, as having seen Smith and Cruz together some time before the robbery in an automobile, a white Vega, which was similar to a car she had seen parked at McDonald's lot the evening of the robbery. Finally, a detective produced two wigs and some tennis shoes that he had removed from the home of co-defendant Roundtree. According to the victims, these items appeared to resemble those worn by the two robbers during the offense. Both Gilley and Cruz presented alibi testimony placing them at other places at the time the robbery was committed.

Following the robbery, Smith gave a statement admitting his complicity in the scheme. Later, Smith entered into extensive plea negotiations with the state, which were unsuccessful in that eventually Smith went to trial, but, after verdicts of guilt were returned against him, he agreed shortly before the trial of Cruz and Gilley to give state's evidence. On the same day that Smith's testimony was submitted to the jury, the state filed a motion in limine, seeking to restrict the defense from cross-examining Smith concerning his "alleged drug use and-mental problems ... on dates other than the date of the crime, Smith's arrest or Smith's deposition or courtroom testimony," as well as "any offers or negotiations made to [him] prior to or during his trial." In seeking exclusion of the latter material, the state's motion cited Section 90.410, Florida Statutes (1979). ¹

I. The Motion in Limine as it Relates to the Request to Restrict Cross-Examination of Smith Concerning His Drug Use.

In addressing this part of the state's motion, the court ruled it would grant it, with the exception of any questions relating to Smith's competency, loss of memory and "things flowing from the mental condition", but denied the defense the right to cross-examine Smith as to any involvement he may have had with drugs either before or during the offense. Defense counsel was allowed to and did ask the witness if he was nervous, if he considered that he was emotionally unstable and whether he felt that he had mental problems, to all of which Smith responded affirmatively.

It is well established that great latitude is allowed the defense in the cross-examination of a witness to determine his interest, his opportunities for observation, his disposition to speak truthfully, and his ability to speak accurately. Killingsworth v. State, 90 Fla. 200, 105 So. 834 (1925). Indeed, the Florida Evidence Code codifies existing case law by permitting a party to attack the credibility of a witness by "[s]howing a defect of capacity, ability, or opportunity in the witness to observe, remember, or recount the matters about which he testified." § 90.608(1)(d), Fla.Stat. (1981). Florida jurisprudence has long sanctioned the admissibility of evidence disclosing that the witness took drugs either at the time he was testifying, or at the time of the occurrence of facts about which he has testified, for the purpose of impeaching his credibility. Eldridge v. State, 27 Fla. 162, 9 So. 448 (1891); Nelson v. State, 99 Fla. 1032, 128 So. 1 (1930). Our court has gone further, by permitting evidence of the witness's drug-taking at times other than during the occurrence of the offense. Morrell v. State, 335 So.2d 836 (Fla. 1st DCA 1976) (prosecuting witness's lengthy addiction to narcotics relevant for testing her credibility). In a somewhat analogous situation, we recently stated that evidence relating to a defendant's consumption of alcohol or narcotics at times other than during or immediately before the commission of an offense might be material in determining his mental capacity to form the specific intent necessary to commit the crime. Rivers v. State, 425 So.2d 101 (Fla. 1st DCA 1982).

What was at issue below was not the witness's competency to testify, but whether, as a result of his involvement with drugs, his ability to remember accurately the facts which were the subject of his testimony was affected. We conclude that the lower court's limitation on the defense's cross-examination of a key government witness was an abuse of discretion.

II. The Order Granting the Motion In Limine as it Related to Restricting Inquiries of Any Offers or Statements of Plea Negotiations Made to Witness Smith Prior to or During His Trial.

The court granted the motion, permitting only testimony relating to any offers or negotiations that occurred following witness Smith's trial, at which he was found guilty of "simple" robbery and conspiracy to commit robbery. The court was of the opinion that any plea negotiations which occurred before Smith's decision to go to trial had been effectively revoked, and therefore such evidence was immaterial. The court also refused to allow the defense to make a proffer of its proposed questions, but it did state for the record outside the jury's presence that the proffer which the defense wished to make related to (1) an offer made before trial for Smith to receive a ten-year maximum sentence, and (2) certain discussions for Smith's possible eligibility for probation were he to plead guilty and testify against his co-defendants.

The defense was permitted to ask Smith whether, by changing his story and implicating himself and other persons, he expected to receive any leniency in exchange for such testimony. He replied that he did. The leniency he referred to was a lighter sentence. No details of the plea negotiations, however, were permitted.

In restricting the defense from inquiring into matters which were the subject of plea negotiations, the lower court may have been influenced by the state's reliance upon section 90.410, excluding statements relating to plea bargaining into evidence. From a superficial reading of the statute, one might conclude that evidence of any offers made in connection with plea negotiations is inadmissible at any proceeding. If this were the legislature's purpose in enacting section 90.410, it would constitute a serious infringement upon a defendant's sixth amendment right to examine his accusers. We are not convinced, however, that the statute was meant to be read so expansively. We consider, rather, that section 90.410 was intended to preclude evidence of thwarted plea negotiations only if such evidence is introduced at a later proceeding against the person who withdrew the plea or refused to accept the offer, provided he is a party to the proceeding. Moreover, we are persuaded that section 90.410 was never intended to bar evidence of plea negotiations for the purpose of impeaching a...