Lavette v. State

• Decision Date: 16 November 1983
• Docket Number: Nos. AO-389,AO-412,s. AO-389
• Citation: 442 So.2d 265
• Parties: Matthew Alan LAVETTE and Darryl Brent Adams, Appellants, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 265

442 So.2d 265

Matthew Alan LAVETTE and Darryl Brent Adams, Appellants, v.STATE of Florida, Appellee.

Nos. AO-389, AO-412.

District Court of Appeal of Florida First District.

Nov. 16, 1983.

Rehearing Denied Dec. 14, 1983.

Steven L. Bolotin, Asst. Public Defender, Tallahassee, for appellantDarryl Brent Adams.

R. Vinson Barrett of Barrett, Bajoczky & Barrett, Tallahassee, for appellantMatthew Alan Lavette.

Jim Smith, Atty. Gen. and Lawrence A. Kaden, Asst. Atty. Gen., Tallahassee, for appellee.

JOANOS, Judge.

In these consolidated appeals, Lavette and Adams contend the trial court erred in denying the motion for judgment of acquittal as to the conspiracy charge; in refusing to compel a state witness, Doug Boyd, to answer deposition questions concerning his alleged drug use or alternatively to exclude use of his testimony at trial by the state; and in refusing to allow the defense to cross-examine Boyd with respect to his use of proceeds of the theft to buy drugs and his increased use of drugs immediately following the theft.We reverse in part and remand for a new trial.

Appellants were convicted of grand theft of $53,000 from the Barnett Bank and conspiracy to commit grand theft.The conspiracy charge involved an incident entirely separate from the one in which $53,000 was taken in September, 1981.The sole evidence introduced with regard to the conspiracy charge was Boyd's testimony that in late July or early August, 1981, Lavette approached him and offered to pay him $1000 if he would cover up missing funds in the amount of $90,000.According to Boyd, Lavette said he had set aside that amount of the bank's money.Boyd refused to cover up the missing funds because he thought the alteration of bank records could be traced.Boyd also testified that the day after Lavette approached him, Adams asked him why he could not do it.This evidence is insufficient to show the existence of a conspiracy between Lavette and Adams to steal $90,000.Both an express or implied agreement and an intention to commit an offense are necessary elements of conspiracy, Ramirez v. State, 371 So.2d 1063(Fla. 3d DCA1979), cert. denied383 So.2d 1201(Fla.1980), and Boyd's testimony that Adams asked him why he could not do it is not sufficient to show agreement and intent.SeeSchueren v. State, 370 So.2d 83(Fla. 1st DCA1979)overruled in part on other grounds inParker v. State, 406 So.2d 1089(Fla.1981).Boyd's testimony provides circumstantial evidence, which can be used to show agreement and intent; however, the evidence is not such as to exclude a reasonable hypothesis of innocence.The motion for judgment of acquittal as to the conspiracy charge should have been granted.

Boyd also provided the primary evidence against Adams and Lavette as to the grand theft charge.He testified that on September 29, 1981, Adams showed him a check for $53,000 and asked him to alter computer records in order to cover up the theft of that amount.This time, Boyd said, he cooperated and received one-third of the amount taken.When the defense took Boyd's deposition prior to trial, he refused to answer questions about his use of cocaine marijuana, and other narcotics, asserting his fifth amendment right against self-incrimination.Originally the prosecutor objected to the questions asked of Boyd, then Boyd's own attorney instructed him not to answer.The defense filed pretrial motions to compel discovery and for disclosure of favorable evidence regarding Boyd's drug use from July to October, 1981, and his use of the money received from the theft, or alternatively to exclude Boyd's testimony at trial.Appellants contend that due to the denial of these motions they were unable to prepare effectively to impeach the state's main witness against them or to lay a foundation for expert testimony regarding the effect of Boyd's drug use on his credibility.As it turned out, Boyd waived the right at trial and testified to some extent about his drug use, thus appellants argue the state clearly did not intend to prosecute Boyd for drug related offenses and could have granted him immunity in time for a useful deposition to have been taken.

Since we are reversing and remanding for a new trial due to another error, on retrial the same problem will not exist since Boyd has waived his fifth amendment right.However, the trial court did not err in denying the pretrial motions.As noted in State v. Mesa, 395 So.2d 242(Fla. 3d DCA1981), the state is not ordinarily obliged, on pain of dismissal, or in this case exclusion of the key witness's testimony, to produce prosecution or defense...