Gamez v. State

• Decision Date: 24 August 1994
• Docket Number: No. 93-1238,93-1238
• Parties: 19 Fla. L. Weekly D1778 Alvaro GAMEZ, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1105

643 So.2d 1105

19 Fla. L. Weekly D1778

Alvaro GAMEZ, Appellant, v. STATE of Florida, Appellee.

No. 93-1238.

District Court of Appeal of Florida,

Fourth District.

Aug. 24, 1994.

Rehearing and Rehearing En Banc Denied Nov. 8, 1994.

Robert L. Bogen of Law Offices of Jay Braverman, P.A., Boynton Beach, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and William A. Spillias, Asst. Atty. Gen., West Palm Beach, for appellee.

PER CURIAM.

We reverse and remand for a new trial because of the trial court's error in preventing a witness from testifying in the appellant's defense.

In United States v. Johnson, 488 F.2d 1206 (1st Cir.1973), the First Circuit explained when a trial court should exclude the testimony of a defense witness because he or she intends to invoke the fifth amendment. The court stated:

If it appears that a witness intends to claim the privilege as to essentially all questions, the court may, in its discretion, refuse to allow him to take the stand. Neither side has the right to benefit from any inferences the jury may draw simply from the witness' assertion of the privilege either alone or in conjunction with questions that have been put to him. Obviously, before excluding a witness, the court must first establish reliably that the witness will claim the privilege and the extent and validity of the claim. Here the court wisely held a voir dire at which Johnson's counsel was invited to question the proposed witness under oath and on the record. Only after Perry had testified that he would claim the privilege comprehensively did the court rule to exclude him. The court indicated that it would reconsider whenever counsel could show a reasonable likelihood that Perry would or must answer some or all questions.

Id. at 1211 (citations omitted) (emphasis added). See also United States v. Kaplan, 832 F.2d 676 (1st Cir.1987) (holding if the witness intends to claim the privilege as to essentially all questions, the court may, in its discretion, refuse to allow him to take the stand), cert. denied, 485 U.S. 907, 108 S.Ct. 1080, 99 L.Ed.2d 239 (1988); United States v. Deutsch, 987 F.2d 878 (2d Cir.1993) (holding the trial court has the discretion to prevent a party from calling a witness solely to have him or her invoke the fifth amendment).

In this case the appellant called a witness and made a proffer of the witness' testimony. That testimony was relevant to appellant's defense. At no time during the appellant's proffer on direct examination did the witness invoke the privilege not to incriminate himself. Subsequently, on a proffer of the state's cross-examination the witness did invoke the privilege when the state asked questions directly...