Gonzalez v. City of Tampa

• Decision Date: 06 December 2000
• Docket Number: No. 99-1919.,99-1919.
• Citation: 776 So.2d 290
• Parties: Dennis GONZALEZ and Cinda Gonzalez, his wife, and Dennis Gonzalez and Cinda Gonzalez, as parents, natural guardians, and next friends of Michelle E. Gonzalez, a minor, Leslie N. Gonzalez, a minor, Jennifer C. Gonzalez, a minor, and Michael H. Gonzalez, a minor, Appellants, v. CITY OF TAMPA, Appellee.
• Court: Florida District Court of Appeals

776 So.2d 290

Dennis GONZALEZ and Cinda Gonzalez, his wife, and Dennis Gonzalez and Cinda Gonzalez, as parents, natural guardians, and next friends of Michelle E. Gonzalez, a minor, Leslie N. Gonzalez, a minor, Jennifer C. Gonzalez, a minor, and Michael H. Gonzalez, a minor, Appellants, v. CITY OF TAMPA, Appellee.

No. 99-1919.

District Court of Appeal of Florida, Second District.

December 6, 2000.

Rehearing Denied January 26, 2001.

Miriam J. Fisher, Pinellas Park, for Appellants.

Peter M. Walsh of Marino & Walsh, St. Petersburg, for Appellee.

PER CURIAM.

Dennis and Cinda Gonzalez appeal an adverse jury verdict on their claim of false arrest against the City of Tampa. First, Mr. and Mrs. Gonzalez assert that the trial court erred in denying their motion for directed verdict on the issue of probable cause to search their rental residence. We conclude that this issue is without merit and affirm the trial court's determination. Mr. and Mrs. Gonzalez also assert that the trial court erred in permitting the City to cross-examine several witnesses as to the criminal arrest history of Mr. Gonzalez. We find that segments of the cross-examination were improper and prejudicial, but their effect was limited to the issue of damages allegedly sustained by the Gonzalezes.

On the evening of June 15, 1993, Mr. and Mrs. Gonzalez were arrested for the crime of misdemeanor child neglect. The couple was in the process of relocating to a new residence when they left their home to look for a friend who had promised assistance. While they were absent, City of Tampa police officers arrived at the residence and found their four minor children left in the custody of their daughter, Michelle, who was then thirteen years old. When Mr. and Mrs. Gonzalez were located outside a neighborhood bar by the police officers, each was arrested and charged with child neglect. After thirty-eight hours of incarceration, Mrs. Gonzalez was able to post bond for her pretrial release; Mr. Gonzalez was able to obtain his pretrial release forty-eight days after his arrest. After both Mr. and Mrs. Gonzalez were acquitted of the charges of misdemeanor child neglect, they commenced this civil action.

As their first point on appeal the Gonzalezes raised the issue of the legality of the search of their home. Their thirteen-year-old daughter allowed the officers to enter the residence, where officers found conditions that led them to believe that the Gonzalez children were being neglected. As their only ground that there was no probable cause for the arrest of Mr. and Mrs. Gonzalez for child neglect, the plaintiffs contended that Michelle could not legally consent to entry by the officers. We find no error in the trial court's determination that Michelle's consent was valid or the jury's finding that probable cause for arrest was present.

Because the police had probable cause to arrest Mr. and Mrs. Gonzalez, the City established its defense to this action; thus, the issues concerning cross-examination have relevance only to the extent that they might have otherwise clouded the jury's decision on probable cause. Mr. and Mrs. Gonzalez and their children sought to recover not only their out-of-pocket expenses but also damages for "great shame, indignity, mortification, humiliation, public ridicule, loss of liberty, loss of personal reputation, loss of filial consortium with other family members, pain and suffering, and mental anguish." It is thus apparent that Mr. and Mrs. Gonzalez claimed wide-ranging effects from this false arrest. For example, in this instance consortium encompasses more than mere sexual relations. It includes affection, fellowship, society, and the assistance necessary for a successful marriage. See City of St. Petersburg v. Hackman, 672 So.2d 42, 45 (Fla. 2d DCA 1996). The broad nature of these claims created a concomitantly expansive sphere of admissible probative evidence; a more narrowly drawn damage claim would have correspondingly diminished this expanse. Cross-examination is appropriate when germane to matters elicited on direct examination. See Steinhorst v. State, 412 So.2d 332, 337 (Fla.1982). Nevertheless, the trial court should have circumscribed the City's cross-examination of the plaintiffs.

Over objection, the City's attorney cross-examined Michelle regarding her father's arrest record. The inquiry was not limited to eliciting the number of his arrests but included questions about a recent arrest for which Mr. Gonzalez remained in custody awaiting trial. The fact that Mr. Gonzalez was in jail awaiting trial on nonrelated charges was irrelevant. Similarly, during Mrs. Gonzalez's testimony, the City forced her, over objection, to identify not only the number of occasions on which her husband had been arrested but also the nature of his alleged crimes. The City conducted a comparable cross-examination of Mr. Gonzalez, again over objection. The plaintiffs' testimony established that Mr. Gonzalez had not been convicted of all the crimes for which he had been arrested.

The City contended that the frequency and the length of Mr. Gonzalez's absences from his family were relevant to his damage claims. Although this information might have been probative, we conclude that identification of the specific offenses for which he had been arrested was, in this unique instance, not relevant.

The tension between the probative value and prejudice inherent in evidence of collateral crimes was deftly illustrated by the Fourth District in Trees v. K-Mart Corp., 467 So.2d 401 (Fla. 4th DCA 1985). In Trees both the trial judge and the appellate court struggled with the relevance/prejudice balancing test because Mart attempted to introduce evidence that the plaintiff in that false arrest and malicious prosecution action had been arrested two years previously for a similar offense. At trial K-Mart sought to introduce evidence that Ms. Trees, as a fifteen-year-old, had been arrested for shoplifting a pair of pants from a J. Byrons store. On that...