Jackson v. State

• Decision Date: 09 September 2004
• Docket Number: No. 3D02-3043.,3D02-3043.
• Citation: 881 So.2d 711
• Parties: Robert JACKSON, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

881 So.2d 711

Robert JACKSON, Appellant, v. The STATE of Florida, Appellee.

No. 3D02-3043.

District Court of Appeal of Florida, Third District.

September 9, 2004.

Marshall G. Geisser, Fort Lauderdale and Matthew D. Bavaro, for appellant.

Charles J. Crist, Jr., Attorney General, and Meredith L. Balo, Assistant Attorney General, for appellee.

Before COPE, GODERICH and SHEVIN, JJ.

COPE, J.

Robert Jackson appeals his convictions and sentences. We reverse for a new trial.

I.

Defendant-appellant Robert Jackson was convicted of armed robbery. Thereafter he entered into a plea bargain whereby he pled no contest to possession of a firearm by a convicted felon and giving a false name after arrest, reserving an issue for appeal.

The victim of the armed robbery was Cornell Young, who was robbed in the parking lot of a convenience store while his friend, Charlie Green, went inside. The robber came up from behind, placed a gun at Young's back, and ordered him to get on the ground. The robber took his watch, wallet, cell phone, and bracelet. The victim did not get a good look at the robber's face, but was able to see the perpetrator's clothing.

As soon as the robber left, Young and Green flagged down a passing police officer, who happened to be a canine officer traveling with his dog. The victim pointed out two males who were walking away from the store. The canine officer gave chase.

The police dog located defendant hiding in shrubbery at a nearby house. It was between 12:30 and 1:30 in the morning. The victim's property was recovered, except for the bracelet. The police also recovered a handgun from the roof of the house where the defendant was hiding in the shrubbery.

After the defendant was apprehended, the police brought Young and Green to the scene. Green recognized the defendant, who he knew by the nickname of "E." The defendant said, "Green, I didn't know it was you all, man." TR. 157. The defendant then said, "[T]ell him I didn't do it. Tell the officer I didn't do it." TR. 158. The defendant told the police officers that he was out for a walk, but the defendant lives many miles away.

The defendant's first trial ended in a hung jury. At the second trial, the jury found the defendant guilty of armed robbery and, as stated, the defendant entered a no contest plea to the remaining charges, reserving an issue for appeal. This appeal follows.

II.

We reverse on account of an erroneous restriction on the defense cross-examination of witness Green. At trial, the defendant was represented by an assistant public defender, who was assisted by a certified legal intern. The intern conducted the cross-examination of witness Green.

As may be expected of a novice, the intern conducted the cross-examination somewhat more slowly and repetitiously than an experienced attorney would have done. Several State objections were properly sustained.

The intern then attempted to cross-examine Mr. Green with his pretrial deposition testimony regarding the statement the defendant made to Mr. Green immediately after the robbery. The court sustained State objections that in asking the question, the intern had mischaracterized Mr. Green's deposition testimony. At this point the intern had cited the specific page and line of the deposition that he was referring to.

The intern then rephrased the question. Without a State objection, the court called counsel and the intern to sidebar. The court said that the intern was misstating the witness' prior testimony, that the defendant's statement at the scene of the crime was self serving, and that the question was repetitious. The court directed the intern to terminate the cross-examination entirely and refused to accept a defense proffer. Having no other alternative, the defense terminated the cross-examination as instructed.

While we understand that the court had become frustrated because the intern was having some difficulty in properly phrasing his impeachment questioning, a review of Mr. Green's deposition indicates that in this instance, the intern had asked the question properly. Mr. Green was a state witness who had testified on direct examination regarding the defendant's statements made immediately after the robbery. The defense was allowed to cross-examine with the witness' prior testimony at his pretrial deposition. See § 90.608(1), Fla. Stat. (2002).¹

We conclude that the court erred in prohibiting the particular question from being asked, and directing the defense to terminate the entire cross-examination. While at sidebar, the assistant public defender attempted to make a proffer but the court refused to allow it. See Rozier v. State, 636 So.2d 1386, 1387-88 (Fla. 4th DCA 1994); McGriff v. State, 601 So.2d 1320, 1321 (Fla. 2d DCA 1992); Pender v. State, 432 So.2d 800, 802 (Fla. 1st DCA 1983).

Mr. Green was a material witness in the case. We are unable to say that the error was harmless. We therefore order a new trial.

III.

Since there must be a new trial, we address several issues raised by the defendant which are likely to recur in the new trial proceedings.

The defendant argues that the trial court unreasonably limited defense counsels voir dire examination of the prospective jurors. We disagree. "The scope of voir dire questioning rests in the sound discretion of the court and will not be interfered with unless that discretion is clearly abused." Vining v. State, 637 So.2d 921, 926 (Fla.1994) (citation omitted).

The defense claims error over the trial court's sustaining of an objection as follows:

[DEFENSE]: ... And Mrs. Baez, you are an accounting clerk. You have heard about all the accounting scandals lately. And all the numbers have to add up, okay, in order for you to come to a conclusion.

How would you feel, if the numbers didn't add up, or say evidence didn't add up, okay, and at the end of the day, there's no science, DNA, fingerprints?

[STATE]: Objection, Judge.

THE COURT: Sustained.

TR. 59.

The ruling was within the court's discretion. The concluding part of the question attempted to extract a commitment from the juror in advance on what the juror's decision would be if there were no scientific evidence, DNA, or fingerprints. The question was especially objectionable because there was no such evidence in this case. As the Florida Supreme Court has said:

Prospective jurors are examined on their voir dire for the purpose of ascertaining if they are qualified to serve, and it is not proper to propound hypothetical questions purporting to embody testimony that is intended to be submitted, covering all or any aspects of the case, for the purpose of ascertaining from the juror how he will vote on such a state of the testimony. Such questions are improper, regardless of whether or not they correctly epitomize the testimony intended to be introduced.

Dicks v. State, 83 Fla. 717, 93 So. 137, 137 (1922).²

The defense next argues that the trial court erred by sustaining objections to voir dire questions about a locally notorious case known as the "River Cops Case," as well as a voir dire question about the O.J. Simpson case. These questions violated a prior order in limine, and the objections were properly sustained.

By way of background, one of the defense contentions in this case was that there had been police misconduct at the time the defendant was arrested. In considering motions in limine, a question arose regarding what voir dire questions would be allowed about the subject of police misconduct. The court ruled that the defense could ask the jurors about whether the police are capable of not telling the truth, and whether the jurors could understand that it could be a defense to the case that it was the police that did something wrong, not the defendant. While inquiry along that line would be allowed, the court ruled that the court would not allow discussion of other specific cases.

Despite the order in limine, the defense asked the potential jurors about the River Cops Case and the O.J. Simpson case. The trial court acted within its discretion in sustaining the State objection to those questions. The court had the discretion to preclude potentially inflammatory questioning about the trial of well-known athlete O.J. Simpson for murder, a case having no similarity or relationship to the instant robbery case. Similarly, the so-called "River Cops" case was a factually dissimilar local murder case, and did not involve any of the officers who testified in the instant case.

As the Fourth District has said in a similar context:

Appellant also contends that the trial court erred in not allowing him to voir dire jurors about their knowledge of news reports involving corruption in the Hollywood police department. Defense counsel alleged that members of the Hollywood police department, including the officer who took appellant's confession, had been untruthful in the investigation, and that this was therefore a proper subject of voir dire.

Appellant makes no argument as to how general corruption in the police department could possibly have had any relevance in this case. The cases on which he relies, Lavado v. State, 492 So.2d 1322 (Fla.1986); Perry v. State, 675 So.2d 976 (Fla. 4th DCA 1996), rev. denied, 684 So.2d 1352 (Fla.1996), were cases in which the trial courts erred in refusing to allow voir dire about broad legal concepts, not, as was the case here, an attempt to attack the credibility of a witness with information which was clearly inadmissible in evidence. What the first district said about this type of thing in Holiday v. Holbrook, 168 So.2d 752, 753 (Fla. 1st DCA 1964) is worth repeating:

The trial judge has a duty to so direct the course of counsel's voir dire examination that the minds of the prospective jurors may not be infiltrated with ideas having no proper relation to the issue to be determined by them.

Hooper v. State, 703 So.2d 1143, 1145-46 (Fla. 4th DCA 1997) (citation omitted). The trial court had the discretion to preclude...