Eberhardt v. State

• Decision Date: 26 September 1989
• Docket Number: No. 88-891,88-891
• Parties: 14 Fla. L. Weekly 2272 Kennedy EBERHARDT, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 102

550 So.2d 102

14 Fla. L. Weekly 2272

Kennedy EBERHARDT, Appellant, v. STATE of Florida, Appellee.

No. 88-891.

District Court of Appeal of Florida,

First District.

Sept. 26, 1989.

Michael E. Allen, Public Defender, and Phil Patterson, Asst. Public Defender, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen., and Edward C. Hill, Jr., Asst. Atty. Gen., Tallahassee, for appellee.

ZEHMER, Judge.

Appellant, Kennedy Eberhardt, was charged with unlawfully entering a structure located in Tallahassee on the night of September 20, 1987, with the intent to commit an offense therein, contrary to section 810.02, Florida Statutes. Eberhardt pleaded not guilty, was tried, and was adjudicated guilty of burglary of a structure as charged pursuant to the jury verdict. He appeals the judgment on numerous grounds. Because several errors deprived him of a fair trial, we reverse and remand for a new trial.

Briefly stating the context of the case, Douglas Cooksey, the owner of the subject premises, found Eberhardt asleep or passed out in an office chair at a desk on a Sunday morning. Eberhardt's shirt had been taken off and was found in another office. A key to the office, a pocket knife, and a monogrammed money clip bearing Cooksey's name, all normally kept in his desk drawer, were found in Eberhardt's pockets. Whether Eberhardt was merely asleep or passed out due to overindulgence of alcohol or drugs and unable to form the requisite intent to commit an offense upon entering the building was critical to the defense at trial.

I.

We first address the defendant's argument that the trial court erred in denying his motion for a new trial because he was brought in prison clothing before the venire. It appears that prior to jury selection and while clad in readily recognizable jail clothes, Eberhardt was brought into the courtroom and apparently observed by the venire. At that point defense counsel moved without success for a continuance so that a jury could be chosen from a venire that had not observed appellant so dressed. Before sentencing, counsel moved unsuccessfully for a new trial on the same ground.

Eberhardt had requested that the state allow him to dress for trial in normal clothing. His family were supposed to bring clothes to the jail before the trial, but they did not arrive in time, and he was moved to the courtroom in jail clothes. Shortly thereafter Eberhardt's family arrived with his clothes and he changed clothes prior to the jury panel's being seated in the jury box and examined on voir dire. Citing Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126, reh'g denied 426 U.S. 954, 96 S.Ct. 3182, 49 L.Ed.2d 1194 (1976), Eberhardt argues that it was reversible error for the state and the court to compel him to appear before the venire in jail clothes rather than to provide him with appropriate clothing, even though his family failed to timely arrive, and that the court proceedings should have been delayed temporarily to provide him with appropriate clothing.

The state argues that no violation of Estelle occurred because the failure of Eberhardt's family to bring his clothes in a timely manner was not the fault of the state; and furthermore, when the voir dire of the jury took place, defendant was dressed in the clothes they had brought. Therefore, the state argues, any problem with Eberhardt's dress in the courtroom was his own fault and is a matter concerning which he should not be heard to complain. The state further contends that Eberhardt has failed to demonstrate prejudice and preserve this issue for appellate review because he is required by law to show affirmatively on the record that the venire actually saw the prison clothes and that the viewing was more than incidental and resulted in prejudicial identification. The state cites, in support of this contention, Maxwell v. Wainwright, 490 So.2d 927 (Fla.), cert. denied 479 U.S. 972, 107 S.Ct. 474, 93 L.Ed.2d 418 (1986); Elledge v. State, 408 So.2d 1021 (Fla.1981), cert. denied 459 U.S. 981, 103 S.Ct. 316, 74 L.Ed.2d 293 (1982), reh'g denied 459 U.S. 1137, 103 S.Ct. 771, 74 L.Ed.2d 984 (1983); and Gates v. Zant, 863 F.2d 1492 (11th Cir.), reh'g denied 880 F.2d 293 (1989). Pointing out that Eberhardt's counsel did not ask any potential juror whether he or she saw the defendant in prison clothes and failed to establish the requisite prejudice, the state argues it would be pure speculation to conclude that the defendant was prejudiced within the meaning of Estelle.

The law now recognizes that once the defendant has requested to appear in court in other than prison clothes, the state must make appropriate provisions to this end. We conclude that even though Eberhardt had asked his family to bring the necessary clothing, the state was not necessarily relieved of its obligation by the family's undertaking should the clothing not arrive on a timely basis. However, a defendant desiring to establish that he was prejudiced because forced to stand trial in prison clothing must make a timely objection and establish on the record that he was identified by a juror as being a prisoner by reason of his wearing the prison uniform. Torres-Arboledo v. State, 524 So.2d 403 (Fla.), cert. denied 488 U.S. 901, 109 S.Ct. 250, 102 L.Ed.2d 239 (1988). Although Eberhardt's counsel made a timely objection, counsel did not thereafter question the jury to establish on the record that at least one member saw him so attired and recognized his status as a prisoner. Nor did she undertake to challenge any of the jurors for cause on this ground. Where a defendant has so established his objection, prejudice is shown and the defendant is held to be denied a fair trial. Although we conclude that it was error for the court to permit the venire to see Eberhardt in the courtroom in prison clothes, defense counsel did not properly preserve this objection as a basis for reversal. See Torres-Arboledo v. State, supra; Hildwin v. State, 531 So.2d 124 (Fla.1988), aff'd 490 U.S. 638, 109 S.Ct. 2055, 104 L.Ed.2d 728, reh'g denied 492 U.S. 927, 109 S.Ct. 3268, 106 L.Ed.2d 612 (1989).

II.

Eberhardt next contends that he was erroneously prevented from adducing evidence establishing that he was too intoxicated and "high" on drugs to form the requisite criminal intent to commit an offense upon entering the building. He argues that he was denied due process of law and the assistance of counsel because counsel was prohibited from eliciting testimony from witnesses that Eberhardt appeared to them to be passed out; that is, in a state or condition of severe intoxication.

On direct examination by the prosecutor, two witnesses testified that the defendant was found asleep in a desk chair. On cross-examination, counsel for defendant was prohibited from asking whether the defendant appeared to be under the influence of drugs or alcohol. A lay witness may testify to physical appearance or observable intoxication. Ehrhardt, Florida Evidence § 701.1, n. 18 (2d ed. 1984). The questions on cross-examination did not go beyond the scope of the questions asked on direct examination. Once the state asked about the defendant's condition and appearance when found in the building, the defense had a right to question and explore all the facts relevant to defendant's state or condition, including intoxication, when discovered there. Steinhorst v. State, 412 So.2d 332, 337 (Fla.1982). One of the fundamental purposes of cross-examination is to test, weaken, or demonstrate the impossibility of the testimony on direct examination, and the scope of cross-examination cannot be unduly limited so as to prevent counsel from carrying out this purpose.

Moreover, Eberhardt contends that the trial court reversibly erred in not allowing his counsel to cross-examine Officer Glisson regarding all the statements Eberhardt made to him after arrest. The following question was asked on cross-examination by the defense counsel:

Q. Mr. Poitinger asked you what the Defendant said about the shirt. What else did Mr. Eberhardt tell you?

MR. POITINGER: Your Honor, I'm going to object. Can we approach the bench?

(R. 164). The state's objection was sustained. Despite the state's argument that the officer was being asked to recite conversations other than the one he mentioned on direct examination that involved exculpatory statements, that is not manifest from this question and no proffer of the answer from the witness was made. Once direct testimony of a conversation between Glisson and defendant had been admitted, the defense became entitled to cross-examine the witness concerning the whole of the conversation. Guerrerro v. State, 532 So.2d 75, 77 (Fla. 3d DCA 1988). Because portions of the defendant's conversation with the officer were admitted on direct examination, the rule of completeness generally allows admission of the balance of the conversation as well as other related conversations that in fairness are necessary for the jury to accurately perceive the whole context of what has transpired between the two. Ehrhardt, Florida Evidence, § 108.1 (2d Ed.1984). Once the officer testified in the state's case-in-chief about one portion of Eberhardt's statements to him, the court erred in sustaining the state's hearsay objection for the reason that his statements he was "high" or intoxicated were self serving. Heathcoat v. State, 430 So.2d 945 (Fla. 2d DCA), aff'd, 442 So.2d 955 (Fla.1983).

III.

Defendant next contends that the trial court erred in failing to instruct the jury on his defense of voluntary intoxication as requested. Voluntary intoxication is recognized as a valid defense in Florida to specific intent crimes....