Hawthorne v. State, No. VV-307

CourtCourt of Appeal of Florida (US)
Writing for the CourtPER CURIAM
Citation408 So.2d 801
Decision Date18 January 1982
Docket NumberNo. VV-307
PartiesJoyce Bernice HAWTHORNE, Appellant, v. STATE of Florida, Appellee.

Page 801

408 So.2d 801
Joyce Bernice HAWTHORNE, Appellant,
v.
STATE of Florida, Appellee.
No. VV-307.
District Court of Appeal of Florida, First District.
Jan. 18, 1982.

Page 802

Leo A. Thomas of Levin, Warfield, Middlebrooks, Mabie & Magie, Pensacola, for appellant.

Jim Smith, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., Tallahassee, for appellee.

PER CURIAM.

This is an appeal from a conviction of second degree murder. Finding merit in several points on appeal, we reverse and remand for a new trial.

This was appellant's second trial for the murder of her husband. Her first conviction, for first degree murder, was reversed by this court in Hawthorne v. State, 377 So.2d 780 (Fla. 1st DCA 1979). The opinion in that case contains an adequate presentation of the facts surrounding the shooting of appellant's husband, Aubrey Hawthorne, and those facts will not be reiterated here.

One of the points raised in this appeal is that the prosecution should not have been permitted to impeach Mrs. Hawthorne's testimony at this second trial using

Page 803

her testimony from the first trial because her first trial testimony was arguably the product of an illegally obtained statement which was improperly introduced at the first trial. Appellant contends that the decision in Harrison v. United States, 392 U.S. 219, 88 S.Ct. 2008, 20 L.Ed.2d 1047 (1968), is directly applicable in this case and that the State failed to demonstrate that the statement procured through its illegal action did not induce her first trial testimony which was used for impeachment at the second trial. Defense counsel objected and moved for a mistrial when the alleged improper impeachment occurred. The State contends that the principle of Harrison v. United States, supra, prohibiting impeachment with prior testimony which is a product of an illegally obtained confession, has been eroded by subsequent decisions in a series of cases beginning with Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971). 1 Alternatively, the State argues that Harrison v. United States, supra, does not apply to the instant situation, and that the appellant would have testified at the first trial in support of her claim of self-defense regardless of the introduction of the illegally obtained statement.

We agree with appellant that Harrison v. United States is applicable in the instant situation and that the State failed to respond to its burden of showing that its illegal action did not induce the testimony at the first trial which was used to impeach at the second trial. Therefore, the first trial testimony was inadmissible for impeachment purposes. We accordingly reverse on this point.

As to the argument that the principle of Harrison v. United States has been overruled by Harris v. New York and subsequent cases, we disagree. The ruling in Harris v. New York permits the use of a confession obtained without warning the defendant of his right to counsel to impeach the defendant's credibility, even though such a confession could not be used in the prosecution's case-in-chief. Significantly, the court in Harris pointed out that the "(p) etitioner makes no claim that the statements made to the police were coerced or involuntary" 2 and that even though the evidence was not admissible in the prosecution's case-in-chief, it would not necessarily follow that the evidence should be "barred for all purposes, provided of course that the trustworthiness of the evidence satisfies legal standards." 401 U.S. at 224, 91 S.Ct. at 645. The Florida Supreme Court noted in Nowlin v. State, 346 So.2d 1020 (Fla.1977), in commenting on Harris, that in order for the trustworthiness of a statement used for impeachment to satisfy legal standards, the statement must at least be shown to have been voluntarily given, the State having the burden to show voluntariness. The premise for the decision in Harris, the reliability of the statements used to impeach, would not necessarily be satisfied in every case which presents a situation similar to that of Harrison. Accord, Ibn-Tamas v. United States, 407 A.2d 626, 641-642 (D.C.App.1979). In the instant case, the rationale for Harris, that testimony which is unquestionably reliable ought not to be barred for all purposes, is without a doubt not applicable. The precise reason why Mrs. Hawthorne's statement was determined by this court to have been improperly admitted at the first trial was its coerced and involuntary nature. 377 So.2d at 784. Therefore, in our opinion, as to the instant situation the Harrison decision remains viable.

The State argues that Harrison and the instant case are distinguishable and that appellant would have taken the stand at the first trial in order to establish self-defense even if the illegally obtained statement had not been admitted. As to these contentions, we note that a similar possibility was addressed in Harrison:

Page 804

But even if the petitioner would have decided to testify whether or not his confessions had been used, it does not follow that he would have admitted being at the scene of the crime and holding the gun when the fatal shot was fired. On the contrary, the more natural inference is that no testimonial admission so damaging would have been made if the prosecutor had not already spread the petitioner's confessions before the jury. That is an inference the Government has not dispelled. 392 U.S. at 225-226, 88 S.Ct. at 2011-2012.

Similarly, in the instant case even if appellant might have taken the stand at the first trial regardless of the admission of the statement, it does not follow that she would have admitted placing a shotgun under her daughter's bed on the night of the shooting, for example. 3 We conclude that the State failed to show that the prior testimony used for impeachment purposes and complained of here was not the product of the illegally obtained and unreliable statement. In addition, these references at the second trial to the contents of the illegally obtained statement ignored this court's admonition in the first Hawthorne opinion that "(o)n retrial of defendant, her statements and confessions, or any evidence relating thereto, are inadmissible." 377 So.2d at 785.

We think the trial court also erred in refusing to allow a proffer of testimony by a witness, appellant's daughter America Hawthorne, as to alleged sexual misconduct by the deceased towards her. There was some confusion as to precisely when the proffer would be made, 4 however, the trial court clearly indicated...

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57 practice notes
  • Tourlakis v. Morris, No. C-2-89-314
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • May 30, 1990
    ...Ibn-Tamas v. United States, 407 A.2d 626 (D.C.1979) (cf. Ibn-Tamas v. United States, 455 A.2d 893 (D.C.1983)); Hawthorne v. State, 408 So.2d 801 (Fla.Ct.App.1982); Chapman v. State, 258 Ga. 214, 367 S.E.2d 541 (1988); Smith v. State, 247 Ga. 612, 277 S.E.2d 678 (1981); People v. Minnis, 118......
  • Com. v. Dillon
    • United States
    • Pennsylvania Supreme Court
    • October 31, 1991
    ...Terry v. State, 467 So.2d 761 (Fla.Dist.Ct.App.1985); Borders v. State, 433 So.2d 1325 (Fla.Dist.Ct.App.1983); Hawthorne v. State, 408 So.2d 801 (Fla.Dist.Ct.App.1982); Strong v. State, 251 Ga. 540, 307 S.E.2d 912 (1983); Smith v. State, 247 Ga. 612, 277 S.E.2d 678 (1981); People v. Minnis,......
  • State v. Kelly
    • United States
    • United States State Supreme Court (New Jersey)
    • July 24, 1984
    ...of the testimony, holding that the trial court was not compelled to admit the evidence; 455 A.2d 893 (D.C.1983)); Hawthorne v. State, 408 So.2d 801 (Fla.Dist.Ct.App.1982), petition for review denied, 415 So.2d 1361 (Fla.1982); Smith v. State, 247 Ga. 612, 277 S.E.2d 678 (1981); State v. Ana......
  • Flanagan v. State, No. 87-871
    • United States
    • Court of Appeal of Florida (US)
    • July 19, 1991
    ...facts and conclude that the child was sexually abused. My conclusion is further supported by this court's decision in Hawthorne v. State, 408 So.2d 801 (Fla. 1st DCA), review denied, 415 So.2d 1361 (Fla.1982), in which we approved application of the Frye test to the battered-woman syndrome,......
  • Request a trial to view additional results
57 cases
  • Tourlakis v. Morris, No. C-2-89-314
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • May 30, 1990
    ...Ibn-Tamas v. United States, 407 A.2d 626 (D.C.1979) (cf. Ibn-Tamas v. United States, 455 A.2d 893 (D.C.1983)); Hawthorne v. State, 408 So.2d 801 (Fla.Ct.App.1982); Chapman v. State, 258 Ga. 214, 367 S.E.2d 541 (1988); Smith v. State, 247 Ga. 612, 277 S.E.2d 678 (1981); People v. Minnis, 118......
  • Com. v. Dillon
    • United States
    • Pennsylvania Supreme Court
    • October 31, 1991
    ...Terry v. State, 467 So.2d 761 (Fla.Dist.Ct.App.1985); Borders v. State, 433 So.2d 1325 (Fla.Dist.Ct.App.1983); Hawthorne v. State, 408 So.2d 801 (Fla.Dist.Ct.App.1982); Strong v. State, 251 Ga. 540, 307 S.E.2d 912 (1983); Smith v. State, 247 Ga. 612, 277 S.E.2d 678 (1981); People v. Minnis,......
  • State v. Kelly
    • United States
    • United States State Supreme Court (New Jersey)
    • July 24, 1984
    ...of the testimony, holding that the trial court was not compelled to admit the evidence; 455 A.2d 893 (D.C.1983)); Hawthorne v. State, 408 So.2d 801 (Fla.Dist.Ct.App.1982), petition for review denied, 415 So.2d 1361 (Fla.1982); Smith v. State, 247 Ga. 612, 277 S.E.2d 678 (1981); State v. Ana......
  • Flanagan v. State, No. 87-871
    • United States
    • Court of Appeal of Florida (US)
    • July 19, 1991
    ...facts and conclude that the child was sexually abused. My conclusion is further supported by this court's decision in Hawthorne v. State, 408 So.2d 801 (Fla. 1st DCA), review denied, 415 So.2d 1361 (Fla.1982), in which we approved application of the Frye test to the battered-woman syndrome,......
  • Request a trial to view additional results

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