Hawthorne v. State

• Decision Date: 18 January 1982
• Docket Number: No. VV-307,VV-307
• Citation: 408 So.2d 801
• Parties: Joyce Bernice HAWTHORNE, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

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.

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 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 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 that the proffer would not be allowed. "A trial court should not refuse to allow a proffer of testimony. This is necessary to insure full appellate review." Piccirrillo v. State, 329 So.2d 46 (Fla. 1st DCA 1976). Appellee contends that in order for the episode regarding which America would have testified to have been relevant to the defense of self-defense, it had to be shown that appellant was aware of the occurrence. Not having a proffer of the testimony to review, we cannot determine whether it would have been relevant. Reversal on this point is therefore in order, particularly since this court previously ruled that the trial court had improperly limited witnesses' testimony as to the deceased's acts of violence toward appellant, her children, and third persons. 377 So.2d at 787.

The trial court also erred in allowing the prosecution to attempt to impeach America Hawthorne's credibility by playing her entire tape recorded statement that had been taken previously. The stated purpose for playing the tape was to contradict America's assertion that before the tape recorded statement was taken she had spoken with the state attorney off the record and mentioned that her father had threatened to "make the rounds" on the night of his death; the prosecutor implied that this aspect of America's testimony had been fabricated just before trial. The prosecutor also mentioned that the tape would serve to impeach America as to her ability to recollect and her demeanor on prior occasions when her statements were taken. First of all, the tape recorded statement could not prove or disprove what had been said off-the-record before the conversation was recorded. Secondly, with regard to America's recollection of events, the prosecutor had already engaged in a lengthy impeachment of her on the basis of prior inconsistent statements contained in her depositions. Finally, with regard to America's demeanor, the prosecutor had previously presented evidence to support his suggestion that the face she was presenting to the jury was not sincere because she had never wept on other occasions while discussing the case. Two previously unannounced witnesses were presented and testified at length about her demeanor on the occasions when her statements were taken. Thus, the playing of the entire tape recorded statement in the presence of the jury constituted improper impeachment. Cf. Hill v. State, 355 So.2d 116 (Fla. 4th DCA 1978).

The last argument by appellant that warrants discussion is that the trial court erred in disallowing the testimony of Dr. Lenore Walker, a clinical psychologist who would have testified as an expert with regard to the battered woman syndrome. The purpose of such testimony would have been to give the jury a basis for considering whether appellant suffered from the battered-woman syndrome, not in order to establish a novel defense, but as it related to her claim of self-defense. We are aware of the conflicting decisions of various jurisdictions as to the admissibility of this type of expert testimony. See, e.g., Smith v. State, 247 Ga. 612, 277 S.E.2d 678 (1981); State v. Thomas, 66 Ohio St.2d 518, 423 N.E.2d 137 (1981); Buhrle v. State, 627 P.2d 1378, 1378 (Wyo.1981); Ibn-Tamas v. United States, 407 A.2d 626 (D.C.App.1979). The courts that have considered the admissibility of this type of expert testimony have generally analyzed it to see whether it meets three basic criteria: (1) the expert is qualified to give an...