Green v. State, 83003

• Decision Date: 27 November 1996
• Docket Number: No. 83003,83003
• Citation: 688 So.2d 301
• Parties: 21 Fla. L. Weekly S513 Joseph Nahume GREEN, Jr., Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 301

688 So.2d 301

21 Fla. L. Weekly S513

Joseph Nahume GREEN, Jr., Appellant, v. STATE of Florida, Appellee.

No. 83003.

Supreme Court of Florida.

Nov. 27, 1996.

Rehearing Denied Feb. 19, 1997.

Nancy A. Daniels, Public Defender and David A. Davis, Assistant Public Defender, Second Judicial Circuit, Tallahassee, for Appellant.

Robert A. Butterworth, Attorney General and Curtis M. French, Assistant Attorney General, Tallahassee, for Appellee.

PER CURIAM.

We have on appeal the judgment and sentence of the trial court imposing the death penalty upon Joseph Nahume Green, Jr. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. We find that the trial court erred in two respects: allowing cross-examination of a defense witness's prior alcohol use; and admitting evidence seized pursuant to an overbroad warrant. After reviewing the entire record in this case, we are unable to find that these errors did not affect the jury's verdict beyond a reasonable doubt. Accordingly, we reverse and remand the case for a new trial.

The facts of this case follow. At about 10:10 p.m. on December 8, 1992, Judy Miscally drove to a Mapco convenience store in Starke, Florida, to use a public telephone. While standing in front of the telephone, she was approached by a man who demanded money. When she refused and screamed, the man told her to shut up. When she again screamed, he grabbed her and shot her. The man then fled the scene and Miscally died.

Four people witnessed the shooting: the victim, John Goolsby, Katrina Kintner, and Lonnie Thompson. The victim described the shooter only as a skinny black man in his mid-twenties and described the gun as small, semiautomatic pistol which looked like a "Glock." Goolsby, who was in his car at a stoplight when he heard the shot, saw two people in front of the Mapco. However, because he was not wearing his glasses, Goolsby could not determine either the sex or race of either person. Kintner was sitting in her car in the parking lot of a convenience store across the street from the Mapco when she heard the shot. From her car, Kintner saw three black men surrounding a white woman at the Mapco; however, she could not describe any of the people she saw in greater detail than that the woman was short with dark hair, and one of the men was taller than the other two. Although she was not looking at the Mapco when she heard the shot, when she looked up, Kintner saw two men running away from the store but did not see where the third one went.

The other eyewitness to the shooting was Lonnie Thompson. Like Kintner, Thompson was near the convenience store across the street from the Mapco, about two hundred and sixty feet away from Miscally. Thompson has an IQ of 67 and had previously suffered three head traumas which caused him headaches, dizziness, head spins, and reading and memory problems. Also, Thompson testified that while working for a steel company, he was hit in the right eye by a piece of steel. Before the shooting, Thompson had drunk eight sixteen-ounce cans of beer, and he ultimately drank at least twelve sixteen-ounce beers that night. When first asked by police if he saw anything, he denied that he did. Later that night, Thompson told police that he had seen a white male shoot Miscally. Finally, early the next morning, Thompson told police that he saw Green and Miscally struggle in front of the Mapco over Miscally's purse. He testified that during the struggle, Green held the purse in one hand and Miscally's wrist with his other hand, and throughout the struggle he had a gun pointed at her. Additionally, Thompson testified that even though Green was wearing a trench coat which was buttoned, he could see that Green wore a holster on his hip. Thompson then testified he saw Green shoot Miscally and run behind the store.

Aside from Thompson's identification, there was no other physical evidence linking Green to the crime. The State attempted to bolster its case against Green by presenting circumstantial evidence that Green had the opportunity to kill Miscally.

In defense, Green presented Kintner's account of the murder and tried to rebut the State's case. Testimony showed that on the night of the murder, Green was walking around Starke with his girlfriend, Gwen Coleman. Coleman testified that sometime after 9 p.m., the two went to the back of a local bar, where they asked three men outside for money or cigarettes. She further testified that she and Green eventually walked from the bar to a Pizza Hut where Donald Laverly and David Padgett were trying to take the muffler off of Laverly's car. Green offered to help and retrieved a saw from his friend's house while Coleman returned to the motel where she and Green were staying. Green helped the men and then asked Laverly for money or cigarettes. After getting cigarettes, Green returned to the motel sometime after 11 p.m., when the motel owner saw Green outside and again reminded him that his rent was due the next day. Coleman's testimony about the time that they arrived at the Pizza Hut was essentially corroborated by testimony from Laverly and Padgett.

After a jury trial, Green was found guilty of the charge of first-degree murder. Thereafter, a penalty phase hearing was held, after which the jury recommended death by vote of nine to three. Weighing the aggravating factors ¹ against the mitigating factors, ² the trial court followed the recommendation and imposed the death penalty.

On appeal, Green raises twelve issues. ³ We agree with Green that the trial court erred with respect to issue 4, allowing the State to cross-examine a defense witness about her prior alcohol abuse, and with respect to issue 8, admitting evidence seized pursuant to an overbroad warrant. Because we do not find beyond a reasonable doubt that these errors did not affect the guilty verdict, we reverse this case and remand for a new trial.

In issue 4, Green claims that the trial court erred when, over objection, it allowed the State to ask defense witness, Katrina Kintner, if she was a recovering alcoholic. Relying on Edwards v. State, 548 So.2d 656, 658 (Fla.1989), Green asserts that since there was no evidence presented that the witness drank on the night of the murder, the trial court should not have allowed this impeachment. We agree.

As noted above, Kintner testified for the defense that she saw three black men surrounding a white woman at the Mapco, and just after hearing the shots, she saw two men running back behind the dumpster but did not see where the third one went. At the end of direct examination, the defense asked Kintner if she had anything to drink that night, to which she responded "no." On cross-examination, the State asked if she had "previously been someone who drank alcoholic beverages." After the trial court overruled the defense objection, she answered that she was a recovering alcoholic for the past three years, and just prior to being in the parking lot at the convenience store on the night of the murder, she had been at an Alcoholics Anonymous meeting. On redirect, she stated that she had run the meeting and that this would not have been possible if she had been drinking.

Cross-examination of a witness is limited to the subject matter on direct examination and matters affecting the credibility of the witness. See § 90.612(2), Fla. Stat. (1993). Thus, as a general rule, the questions on cross-examination must be no more broad in scope than those on direct. See McCrae v. State, 395 So.2d 1145 (Fla.1980), cert. denied, 454 U.S. 1041, 102 S.Ct. 583, 70 L.Ed.2d 486 (1981). Here, the question on direct was limited to Kintner's drinking on the night of the murder. Asking the witness about her alcohol use at other times thus went beyond the permissible scope of cross-examination.

Moreover, we have previously held that evidence of drug use for impeachment purposes is inadmissible unless it is shown that: the witness was using the intoxicant ⁴ at or about the time of the incident about which the witness is testifying; the witness is using the intoxicant at or about the time of testimony; or it is expressly shown by other relevant evidence that the prior use of the intoxicant affects the witness's ability to observe, remember, and recount. Id. at 658. In this case, there was no showing that any of these bases for the introduction of this evidence existed prior to the questioning. Therefore, this questioning was error.

The State asserts that if error, in light of the rehabilitation on redirect and the prosecution not mentioning her prior alcoholism in closing arguments, this error was harmless beyond a reasonable doubt. See State v. DiGuilio, 491 So.2d 1129 (Fla.1986). In the absence of other error, we would agree. However, our review of the entire record in this case causes us to conclude that we must analyze the effect of this error with the effect of the error in admitting evidence pursuant to an invalid search warrant.

In issue 8, Green challenges the admission of the clothes he was wearing on the night of the murder, which were seized pursuant to a search warrant. The events giving rise to the issuance of the search warrant are as follows. The day after Thompson identified Green as the shooter, he described the clothing Green was wearing to officer William Reno. Later that day, Reno made several trips to the motel room where Green was staying with his girlfriend, Gwen Coleman. During one of these visits, Coleman let the officers into the room and pointed to the clothing Green wore the night before. Reno then went to the state attorney's office where an affidavit in support of a search warrant was drafted.

At the time the police executed the affidavit, they knew that Green was wearing a black, pinstriped suit, a white shirt, and a brown trench coat that night. Also, the police recovered a .32-caliber casing from the scene of the murder and had Miscally's description of the gun as a small, semi-automatic gun which looked like a...