Johnson v. State, 70-1188
| Decision Date | 15 June 1971 |
| Docket Number | No. 70-1188,70-1188 |
| Citation | 249 So.2d 470 |
| Parties | Zebedee JOHNSON, Appellant, v. The STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Phillip A. Hubbart, Public Defender, and Lewis S. Kimler, Asst. Public Defender, for appellant.
Robert L. Shevin, Atty. Gen., and Joel Rosenblatt, Asst. Atty. Gen., for appellee.
Before PEARSON, C. J., and BARKDULL and HANDRY, JJ.
The appellant was found guilty of second degree murder after a jury trial in the Criminal Court of Record in and for Dade County, Florida. He was adjudicated guilty and sentenced to twenty years in the state penitentiary and this appeal is from that judgment and sentence. Appellant had been previously tried upon the same homicide in the circuit court upon a charge of first degree murder. That court directed a verdict for the defendant at the close of the State's case on the charge of first degree murder and the jury deadlocked upon the lesser included offense of second degree murder. A mistrial was declared. The cause was then transferred to the Criminal Court of Record for the second trial.
One of appellant's points requires the recitation of proceedings in the trial court which occurred prior to the jury trial. Appellant was retried in October of 1970. In May of that year appellant filed a written motion before the court entitled 'Motion for Statement of Particulars and Unilateral Discovery.' One of the things requested was any physical evidence relative to the gun with which the State charged the defendant was armed at the time of the crime. The bullet which is alleged to have caused the death of the victim and which the State claims was fired from appellant's gun had been produced in the circuit court trial but was unaccounted for thereafter. The court granted appellant's motion for the production of the fatal bullet so that the defendant could have the opportunity of having his own expert examine it. The State could not produce the bullet. Subsequently but prior to the trial, the appellant moved the court for an order suppressing 'any testimony from a ballistics expert regarding this bullet.' The court denied the motion. At the trial the State's ballistics expert was allowed to testify as to markings on the bullet which the expert testified corresponded to markings on a pistol with which it was charged the appellant was armed.
Appellant has presented five points each of which presents a serious question for decision by this court. The first question urges that the trial court erred in admitting defendant's testimony taken before the grand jury. The second point urges error upon the court's failure to instruct the jury that prior statements of a witness were admitted only for impeachment purposes. The third point urges that the court erred in admitting the testimony of the ballistics expert. The fourth point urges that the court erred in not granting a mistrial when a police officer testified that he had taken statements from many witnesses whom he could not now locate. The fifth point urges that the court erred in denying a motion for acquittal because the State failed to present a prima facie case.
We find reversible error in the failure to exclude the testimony of the ballistics expert and because we do not find in the record error which would require a discharge of the defendant, we reverse the adjudication and the sentence and direct that a new trial be granted the defendant. Because we reach this result in this manner, we do not find it necessary to discuss each of appellant's points as they were presented. We turn rather to a discussion of appellant's point 3 which is as follows:
'The trial court erred in admitting the testimony of the ballistics expert when the bullet taken from the deceased was lost by the State, thus depriving the defendant of his rights of discovery as well as his sixth amendment rights to effectively cross examine and confront the witness.'
Rule 1.220(b) of the Florida Rules of Criminal Procedure, 33 F.S.A. provides for defendant's examination of tangible evidence as well as the right to have a defense expert examine such evidence. It is this right which the appellant claims has been denied him. The State does not claim that appellant's right of examination and discovery was accorded to him but it urges that the fact that it was not accorded him was not the fault of the State. It urges that the...
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...WITNESSES INFRINGED BY GOOD-FAITH NON-PRODUCTION OF EVIDENCE? Both the trial judge and defendant-appellee relied on Johnson v. Florida, 249 So.2d 470 (Fla.App.1971), which the Florida Supreme Court later affirmed, Florida v. Johnson, 280 So.2d 673 (1973). Johnson, supra, required production......
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