Highsmith v. State
| Decision Date | 08 May 1991 |
| Docket Number | No. 89-3114,89-3114 |
| Parties | 16 Fla. L. Weekly 1271 Leon HIGHSMITH, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Barbara M. Linthicum, Public Defender and P. Douglas Brinkmeyer, Asst. Public Defender, Tallahassee, for appellant.
Robert A. Butterworth, Atty. Gen. and Edward C. Hill, Jr., Asst. Atty. Gen., Tallahassee, for appellee.
Leon Highsmith has appealed from his conviction and sentence for possession of a firearm by a convicted felon. He alleges as error the trial court's admission of evidence concerning his use of aliases, the giving of a jury instruction on flight, the prosecutor's comment on his failure to call certain witnesses, and his classification as a habitual offender based on two felony convictions which were imposed on the same date. We affirm as to all issues except the last, as to which we reverse and remand for resentencing.
Highsmith was initially charged with carrying a concealed firearm, after officers observed him hiding something under his car seat, which was revealed to be a semi-automatic pistol. After his arrest, Highsmith presented a driver's license bearing the name "Jeffrey Craig Johnson." Observing that the picture on the license did not match Highsmith's face, the officer asked his true name. Highsmith responded with "Sean Eric Brown," under which name he was charged by information with carrying a concealed firearm. When his actual identity was ascertained, an amended information was filed to add a charge of possession of a firearm by a convicted felon.
The two counts were severed for trial, and the possession count was tried first. The state presented the testimony of the arresting officers, which included, over defense objection, Highsmith's use of the false driver's license, and his identification of himself to the officers as "Sean Eric Brown." The officers also testified that a computer check of the second false name revealed no criminal record.
Highsmith testified on his own behalf. He stated that, on the night of his arrest, he had driven to a restaurant with his cousin, Eric Walker, and a friend, Jody Porter. Once they were there, the officers harrassed them without apparent reason. He conceded that the pistol was concealed under his car seat, but testified that it was not his, that he did not put it there, and did not know if it belonged to Walker or Porter. Neither of these individuals was called to testify by the defense, and their absence was noted by the prosecution over defense objection.
During the subsequent conference on jury instructions, the state requested the following charge on flight, based on Highsmith's use of false identities at the time of his arrest:
When a suspected person in any manner endeavors to escape, or evade threatened prosecution by flight, concealment, resistance to lawful arrest, or other after-the-fact indication of a desire to evade prosecution, such fact may be one of a series of circumstances from which guilt may be inferred.
The defense objected, arguing that there was no evidence of flight or concealment in the case. The trial judge overruled the objection, citing Highsmith's use of a false name, and the instruction was given to the jury.
The jury found Highsmith guilty as charged. The case proceeded to sentencing, the state having given proper notice of intent to seek sentencing as an habitual offender. The court sentenced Highsmith as an habitual offender in reliance on two prior felony convictions, possession of cocaine and carrying a concealed firearm, over defense objection that the convictions were both imposed on October 21, 1988.
Highsmith alleges first that the trial court erred in allowing the admission of evidence showing that he used aliases. He cites Lee v. State, 410 So.2d 182 (Fla.2d DCA 1982) for the proposition that such evidence conveys the impression to the jury that the defendant belongs to a "criminal class." However, the Lee court acknowledged that the admission of aliases was not per se reversible error, and that reversible prejudice existed only because the reference to Lee's aliases was accompanied by testimony that they had been obtained from an FBI "rap" sheet. See also Lamb v. State, 354 So.2d 124 (Fla.3d DCA 1978) and Rodriguez v. State, 413 So.2d 1303 (Fla.3d DCA 1982) ().
Here, a review of the record indicates that the witness who testified to Highsmith's use of false names did not use the term "alias," but simply testified to Highsmith's actions in presenting a false driver's license and giving another false name when the license was questioned. More importantly, the Lee court's primary concern regarding alias evidence was the tendency of the public to associate it with previous criminal activity. As the state points out, the jury could surmise from the crime for which Highsmith was on trial, possession of a firearm by a convicted felon, that he had a prior felony record. We do not believe that additional prejudice as to previous criminal activity was likely to result from the false name testimony. We affirm on this issue.
Highsmith next alleges that it was error to instruct the jury on flight, citing Merritt v. State, 523 So.2d 573 (Fla.1988). In that case, a first-degree murder defendant escaped while en route to Florida to stand trial on other, unrelated charges. The state was permitted to introduce evidence of the escape at the first-degree murder trial and to have the jury charged on it as an additional circumstance of guilt. The supreme court reversed, finding that it was unreasonable to allow the jury to connect the escape with guilt of first-degree murder, when it was equally as likely that the escape was to evade prosecution for the unrelated charges.
The appellant argues that, as in Merritt, it was just as likely that Highsmith concealed his true identity to evade prosecution for the crime of driving without a license as for the weapon charge, and that it was therefore error to allow the jury to connect the concealment with guilt of possession of a firearm by a convicted felon. If the only "concealment" offered by Highsmith was the use of someone else's driver's license, this argument would be more persuasive. However, the record shows that Highsmith offered a second false name, under which no criminal record was listed, immediately after the discovery of the pistol in his car. We find that the jury could therefore reasonably infer that the further concealment of his identity was to avoid prosecution for the crime charged, and thus that the flight instruction was permissible.
The next issue raised by Highsmith, the prosecutorial comment on his failure to offer the testimony of his companions on the night of his arrest, presents a very close question. The general rule...
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