Jacob v. State, 88-1655
| Decision Date | 11 July 1989 |
| Docket Number | No. 88-1655,88-1655 |
| Citation | 14 Fla. L. Weekly 1647,546 So.2d 113 |
| Parties | 14 Fla. L. Weekly 1647 Sam JACOB, Appellant, v. The STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Bennett H. Brummer, Public Defender, and Beth C. Weitzner, Asst. Public Defender, for appellant.
Robert A. Butterworth, Atty. Gen., and Richard L. Polin, Asst. Atty. Gen., for appellee.
Before NESBITT, JORGENSON and LEVY, JJ.
Sam Jacob appeals from a judgment of conviction for aggravated assault and battery on a law enforcement officer. For the following reasons, we reverse and remand for a new trial.
Jacob, an inmate at the South Dade Correctional Institute, was involved in a prison altercation with Willie Wiggins, a correctional officer. Jacob was charged with aggravated assault, attempted armed robbery, and battery on a law enforcement officer; he entered a plea of not guilty.
During direct examination of Officer Wiggins the state attorney asked whether Wiggins had ever had any complaints filed against him in his capacity as a prison guard. Defense counsel objected to this question on the ground that character evidence was not admissible as Officer Wiggins's character was not at issue and had not been impeached. The state claimed that defense counsel had brought Officer Wiggin's reputation into question by referring in opening argument to the defendant's peaceful reputation and Officer Wiggins's violent conduct toward the defendant. The trial court overruled the defense objection and allowed the state to ask Officer Wiggins, "Have there ever been any disciplinary actions taken against you in your year as a corrections officer involving any violence to any inmates?" Officer Wiggins answered, "No."
The trial court erred in admitting evidence of Officer Wiggins's reputation when his reputation was not at issue. Section 90.404(1)(b), Florida Statutes (1987), provides that:
(1) Character evidence generally.--Evidence of a person's character or a trait of his character is inadmissible to prove that he acted in conformity with it on a particular occasion, except:
* * * * * *
(b) Character of victim.--
1. Except as provided in s. 794.022, evidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the trait; or
2. Evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was an aggressor.
Under this statute, the state, except in homicide cases, may only introduce evidence concerning a pertinent character trait of the alleged victim to rebut character evidence offered by the defense. Here, the defense had not offered any evidence concerning Officer Wiggins's reputation; defense counsel had merely alluded in opening argument to Officer Wiggins's aggressive action against Jacob. "It is uncontroverted that the opening remarks of counsel do not constitute evidence." Whitted v. State, 362 So.2d 668, 673 (Fla.1978) (citation omitted) (defense counsel's opening remark on credibility of witnesses was not evidence which allowed prosecution to introduce evidence of witnesses' reputation for truth and veracity). Therefore, the trial court's admission of evidence of Wiggins's character was error.
On appeal, the state contends that, because Jacob later...
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Burns v. State
...So.2d 668, 673 (Fla.1978) ("It is uncontroverted that the opening remarks of counsel do not constitute evidence."); Jacob v. State, 546 So.2d 113, 115 (Fla. 3d DCA 1989) (defense counsel's comments, made during opening statement in prosecution for assault and battery on law enforcement offi......
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Hall v. State, 93-358
...good conduct record with the Orange County Sheriff's Department over the past twelve years. As the court pointed out in Jacob v. State, 546 So.2d 113 (Fla. 3d DCA 1989), in a factually similar case, the deputy's character and reputation was not put at issue by the defense. Pursuant to secti......
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Simpson v. State, 4D01-351.
...See Whitted v. State, 362 So.2d 668, 673 (Fla.1978); accord Shipman v. State, 647 So.2d 226 (Fla. 1st DCA 1994); Jacob v. State, 546 So.2d 113, 114-15 (Fla. 3d DCA 1989). While the state argues that defense counsel opened the door in his opening statement by stating that the weapon was not ......
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Welch v. State
...(Fla. 4th DCA 1993) (finding it improper for the State to ask an officer about his lack of disciplinary reports); Jacob v. State, 546 So.2d 113, 115 (Fla. 3d DCA 1989) (finding that evidence that no complaints involving violence toward inmates had ever been filed against an officer was inad......