Evanco v. State, EE-465
| Citation | 350 So.2d 780 |
| Decision Date | 18 August 1977 |
| Docket Number | No. EE-465,EE-465 |
| Parties | Michael EVANCO, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Selig I. Goldin of Goldin & Cates, Gainesville, for appellant.
Robert L. Shevin, Atty. Gen., Richard W. Prospect, Asst. Atty. Gen., for appellee.
Appellant was convicted of two counts of an information charging possession of cocaine and two counts of delivery of cocaine. He appeals the judgments and sentences. The sole question raised is whether or not the trial court erred in denying appellant's motion to compel discovery.
Responding to appellant's demand for discovery, appellee submitted its answer in which it listed as a witness J. M. Hoover, a police officer, and gave his address as "Gainesville Police Department." Appellant took the discovery deposition of Hoover, and at the deposition hearing, the following questions were asked by appellant's attorney to which Officer Hoover gave the following answers:
"Q. State your name and address, please.
A. My name is James Michael Hoover, I reside at Alachua County.
Q. What is your residence address?
A. I don't feel that that is necessary.
Q. I want to look into his background, see his family, talk to his neighbors, find out what kind of a guy he is, so I am asking you again, what is your residence address?
A. I refuse to answer that question.
Q. Why?
A. For protection of myself and my family, I feel it is not pertinent to the trial or the hand at issue.
Q. Are you married?
A. I don't feel that is anyone's business but mine.
Q. Do you have children?
A. I don't feel that has anything to do with anything."
Appellant subsequently filed a motion to compel discovery requesting that the court order Hoover to answer the three questions (1) What is your residence address? (2) Are you married? (3) Do you have any children? The court, after hearing argument of counsel for both parties, entered an order denying the motion. There is no indication that testimony was taken on the motion.
Appellant's counsel validly contends that one of his responsibilities is to investigate not only the facts of the case but the reputation and background of the state's witnesses so that upon cross-examination, or in the defendant's case in chief, the credibility of such witnesses can be determined by the jury; that he needs to determine the reputation of the witness in the community, whether he is law abiding, and his day-to-day conduct with his family and neighbors; that in order to properly carry out this function, it is necessary to know the home address of a witness so his investigator can properly make such a background investigation.
The information sought by the above three questions which Officer Hoover refused to answer appear reasonably calculated to lead to the discovery of admissible evidence. The officer's refusal to answer them hinders appellant in the investigation of the case and preparation of his defense. Answers to them should have been required unless privileged.
We have been cited no case on point on this question nor has our research uncovered such a case. We do consider, however, that the answer is provided by the somewhat analogous recent opinion of the Supreme Court in State v. Hassberger, and State v. Grimes, 350 So.2d 1, opinion filed May 26, 1977. That case involved a confidential informant rather than a police officer. There the respondents were observed delivering cannabis to the confidential informant. After charges were filed, defense counsel moved for disclosure of the informant's identity, and the motion was granted. On the state's ex parte motion for a protective order and without notice to the co-defendants, the court held an in-camera hearing at which the state presented evidence of danger to the safety of the informant should his real identity be disclosed. At the conclusion of the hearing, the court entered a protective order relieving the state from the requirement that it furnish the defense with the true name and address of the informant but requiring that the informant be present at trial and available for depositions. The state called the witness at trial, and the defense cross-examined him to the extent possible without knowing his real name or address. Both were convicted and on their appeals, the District Court of Appeal, Fourth District, reversed the convictions because of denial of right to cross-examination by failure of the trial court to require disclosure of the informant-witness' true name and address. The Supreme Court accepted jurisdiction of the Grimes decision through the following certified question:
"Can the identity (actual name and address) of a confidential informant be kept secret when the trial court finds (by means of an in-camera proceeding on the subject), that the informant's personal safety is at stake when that informant appears as a witness in the criminal proceeding?"
The state sought conflict certiorari as to the Hassberger decision, but the Supreme Court found no conflict between that decision and other decisions of Florida appellate courts and therefore discharged the petition in Hassberger.
While police officer Hoover was not a confidential informant, any claim he may have of privilege to not reveal his home address, his marital status, and the number of his children on deposition should rest upon the same rules the Supreme Court has established in Hassberger and Grimes for revealing vel non such information by confidential informers or other state witnesses on cross-examination. The Supreme Court said:
"Where the state produces the informer at trial, and attempts to prevent the witness from giving certain testimony on cross examination, the sixth amendment right of an accused to confront the witnesses against him, made obligatory on the states by the fourteenth amendment, places severe restrictions on the privilege of non-disclosure."
Then quoting from Smith v....
To continue reading
Request your trial
-
Ivester v. State
...relevant matter or information that appears reasonably calculated to lead to the discovery of admissible evidence. Evanco v. State, 350 So.2d 780, 781 (Fla. 1st DCA 1977) rev'd. for new trial 352 So.2d The denial of the motion to compel discovery was based on the Public Records Act, as set ......
-
Garcia v. State
...77 S.Ct. 623, 628, 1 L.Ed.2d 639, 646 (1957); and Spataro v. State, 179 So.2d 876, 878-879 (Fla. 2d DCA 1965); also cf. Evanco v. State, 350 So.2d 780 (Fla. 1st DCA 1977). That was not done in this We reverse the judgment and the sentence and remand the cause with directions to grant the de......
-
State v. Carr, 62972
...be resolved in favor of the accused's right to confront witnesses. See State v. Hassberger, 350 So.2d 1 (Fla.1977), and Evanco v. State, 350 So.2d 780 (Fla. 1st DCA 1977). In this instance, the record does not support the granting of such privilege. There was no evidence or allegation that ......
-
Evanco v. State
...Richard W. Prospect, Asst. Atty. Gen., for appellee. McCORD, Chief Judge. On August 18, 1977, our opinion was filed in the above appeal, 350 So.2d 780. In the final paragraph thereof, we relinquished jurisdiction to the trial court with directions that a hearing be held to determine whether......