Diaz v. State
| Decision Date | 01 December 1992 |
| Docket Number | No. 90-1694,90-1694 |
| Citation | 609 So.2d 1337 |
| Parties | 17 Fla. L. Week. D2665 Alberto DIAZ, Appellant, v. The STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Bennett H. Brummer, Public Defender, and Louis Campbell, Asst. Public Defender, for appellant.
Robert A. Butterworth, Atty. Gen. and Charles M. Fahlbusch, Asst. Atty. Gen., for appellee.
Before HUBBART, BASKIN and COPE, JJ.
Albert Diaz appeals his conviction and sentence for official misconduct. We affirm.
In September, 1989, Diaz, a City of Miami Police officer, was charged with battery and official misconduct. The charges stemmed from an incident which occurred in July, 1989.
Diaz was assigned to an area of Coconut Grove which included Kennedy Park. Diaz and his fellow officers were told to clear out the park at sundown because the police department was receiving complaints from area residents about activities in the park after the park was supposed to be closed. Anyone in the park after sunset, when the park closed, was in violation of a city ordinance and could be arrested.
On July 31, 1989, Diaz and another officer, Alejandro Macias, went to the park at closing time and began clearing it out. Diaz requested identification from each person and then asked Officer Macias to run a computer check for outstanding warrants while the person waited in the parking lot. While several people were standing in the parking lot, they observed Diaz approach Dr. Leonard Frank, who had been jogging in the park. Witnesses claimed that Diaz called Dr. Frank over and that Dr. Frank replied, "Why?" Diaz then asked Dr. Frank if he was deaf and approached him. Dr. Frank again inquired as to why he was being questioned. Several witnesses said they saw Diaz strike Dr. Frank or push him. Diaz and Dr. Frank then began to walk quickly toward the police vehicles in the parking lot. When officer Macias noticed that Diaz seemed to be having problems with Dr. Frank, Macias met Diaz and Dr. Frank as they arrived in the parking lot. Both officers then "took down" Dr. Frank, handcuffed him, and placed him in a police car. Several witnesses were disturbed by what they perceived as unnecessary roughness by the police officers and one person called the police department and asked for a supervisor to come to the park to investigate. A supervisor arrived at the park and questioned the witnesses. Diaz was also questioned at the police station. Dr. Frank was charged with violating the city ordinance, resisting arrest without violence, and disorderly conduct. Diaz wrote on the arrest report that Dr. Frank used obscene language, tried to jog away from Diaz and that Diaz had to chase him before he could arrest him. According to Diaz, the disorderly conduct arose from Dr. Frank's belligerence in the parking lot, which made a crowd gather. The resisting arrest charge arose from Dr. Frank's refusal to be handcuffed.
During the first trial, the state called several people who witnessed the incident. Their testimony differed as to the details of what occurred. They stated that Diaz hit or pushed Dr. Frank and then angrily walked him to the parking lot. The witnesses were not sure how Dr. Frank ended up on the ground, but they said that after Dr. Frank was handcuffed or during the handcuffing, Diaz kicked Dr. Frank several times and hit him with his police flashlight.
Diaz' lieutenant was called by both the state and by Diaz. Lieutenant Ronald Bentley stated that Dr. Frank complained Diaz had beaten him up unnecessarily. The lieutenant observed injuries to Dr. Frank and questioned Diaz about them. Diaz said he did not know how the injuries occurred, but suggested they might have occurred during the arrest.
Dr. Frank testified he never used obscene language or tried to run away from Diaz. He said that he merely wanted to know why he was being questioned by the police officer. He said that Diaz hit him in the chest and then told him to go to the parking lot. Dr. Frank said Diaz never told him he was under arrest or the nature of the charges until he was in the police car. Dr. Frank testified that he was kicked in the side and hit in the head with an object he assumes was a flashlight because he heard the "sound of plastic."
Diaz called Officer Macias to testify. Macias said he first observed Diaz and Dr. Frank when they were walking to the police car. Officer Macias said Dr. Frank was "waving his arms violently." When Officer Macias reached the two men, Diaz told Macias they had to "take down" Dr. Frank. The two officers then threw Dr. Frank to the ground and attempted to handcuff him. Officer Macias said Dr. Frank appeared to be laying on his left arm and would not let Officer Macias handcuff him. Dr. Frank kept asking, "What is going on?" Officer Macias said while he was handcuffing Dr. Frank he could not see if Diaz kicked Dr. Frank. Officer Macias also said he never heard Dr. Frank use obscene language or Diaz tell Dr. Frank he was under arrest.
Diaz also testified. He said Dr. Frank used obscene language on the jogging path and on the way back to the parking lot. He said that although he wrote in the arrest report that Dr. Frank jogged away, Dr. Frank actually walked quickly away from Diaz toward the parking lot. Diaz also said although he wrote he had to "chase" Dr. Frank, he actually had to hurry up to catch him as Dr. Frank walked away and the chase covered a space of about 10 to 15 feet. Diaz said he never hit or kicked Dr. Frank and he assumed the injuries occurred while Dr. Frank was struggling on the ground.
During closing argument, the state argued that Diaz was guilty of battery because he hit and kicked Dr. Frank without justification. The state also argued that Diaz was guilty of official misconduct because he lied on the arrest report. The state claimed Diaz wrote three lies: 1) Dr. Frank used obscene language, 2) Dr. Frank jogged away, and 3) Diaz had to give chase. The state further argued that Diaz lied because he knew he used excessive force in arresting Dr. Frank and he wanted to avoid a criminal prosecution and a reprimand or worse from his police department.
Diaz argued that Diaz only used the force necessary to arrest Dr. Frank. Diaz argued that the witnesses stories varied significantly and their testimony was not credible. He said that Dr. Frank refused to cooperate and therefore Diaz was justified in arresting him.
The trial judge instructed the jury on the elements of battery and official misconduct. 1 The trial judge also instructed the jury on justifiable use of a force by a law enforcement officer. 2 The jury acquitted the police officer of the battery charge and was hung as to the official misconduct charge. The trial judge declared a mistrial as to the latter charge.
The state tried Diaz again on the official misconduct charge. Diaz never moved to dismiss the charge on double jeopardy grounds. The state moved in limine to prevent Diaz from making any mention of the acquittal in the first trial. Diaz agreed that there should be no mention of the acquittal and only requested that the parties determine a way to refer to the sworn testimony offered during the first trial without mentioning that the trial took place. Diaz also asked the trial court to give the jury limiting instructions telling them that Diaz was only on trial for the charges alleged in the information. The court gave the jury such a limiting instruction at the beginning of the trial and again at the end of the trial.
During the second trial, the state called several of the same witnesses it called during the first trial. The state also called Diaz' sergeant and the officer who questioned witnesses at the scene on the night of the incident. Diaz called the same witnesses. The state argued that Diaz used excessive force during the arrest of Dr. Frank and that he lied on the police report in order to justify the use of force and thereby avoid being reprimanded by his superiors. The state did not argue during the second trial that Diaz was also trying to avoid criminal prosecution. The trial judge instructed the jury only on the elements of official misconduct and on the justifiable use of force by a law enforcement officer. The jury convicted Diaz.
Diaz appeals his conviction, claiming that the second trial violated his right against double jeopardy as guaranteed by the United States and Florida Constitutions because the state offered evidence of a crime, battery, for which Diaz had been acquitted. Diaz claims that although he never objected to the evidence, and, in fact, acquiesced to its admission, the error was fundamental and his conviction for official misconduct should be vacated. We disagree and affirm.
During the second trial, the state offered the evidence of Diaz' excessive use of force not to prove he committed a battery on Dr. Frank, as in the first trial, but to show why Diaz lied on his arrest report. If Diaz used excessive force, he would have been subject to disciplinary proceedings by his department. Diaz' superiors could have disciplined Diaz without determining beyond a reasonable doubt that Diaz was guilty of battery. The events which occurred in the park were also inseparable from the events which led to the written police report. The state could not have proven the official misconduct charge without putting on evidence of the events leading up to the writing of the police report. The trial court cautioned the jury several times about the nature of the charge Diaz was being tried for.
The Fifth Amendment of the United States Constitution protects a person from being placed twice in jeopardy for the same crime. The Supreme Court has established a two-prong test for determining if a subsequent prosecution violates the double jeopardy clause. Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990).
The first prong of the analysis is application of the Blockburger [3 test.7 Under Blockburger, a subsequent pro...
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