Layton v. State, FF-306
| Citation | 348 So.2d 1242 |
| Decision Date | 18 August 1977 |
| Docket Number | No. FF-306,FF-306 |
| Parties | Melvin Leroy LAYTON, Appellant, v. STATE of Florida, Appellee. |
| Court | Court of Appeal of Florida (US) |
Michael Minerva, Public Defender, for appellant.
Robert L. Shevin, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for appellee.
In this appeal, we review the third trial of the same defendant for the same offenses. 1 After the third trial, the defendant was found guilty of committing a lewd and lascivious act in the presence of a child under the age of 14 and with lewd and lascivious assault upon a male child under the age of 14. Defendant claims that he is entitled to a new trial because the state impermissibly attacked his character through improper cross-examination, and was erroneously permitted to introduce a transcript of the testimony of appellant's wife taken at a former trial without showing that she was unavailable to testify.
At trial, the state's case rested upon the testimony of defendant's wife Roberta. The state, desirous of introducing certain portions of the wife's testimony given at a prior trial, attempted to establish her unavailability as a witness through the affidavit of state attorney investigator Russ Carlysle who attempted to locate Roberta at her former address and place of employment in Jacksonville and in New Jersey. After the trial court ruled that the state had established the wife's unavailability, certain portions of her testimony were read into the record. Essentially, the wife testified that defendant engaged in rather strange sexual practices. Regarding the incident giving rise to the charges lodged against defendant, she stated that on June 18, 1975, defendant forced her to call his younger son into the bedroom to watch them have intercourse and that later that day defendant forced her to again call the child into the room where she was to perform oral sex on the child. The charges against Roberta, who had been charged along with defendant, were dropped in return for her testimony.
Defendant was the only witness to testify in his behalf. Before he testified, his counsel and the assistant state attorney discussed with the court certain aspects of the state's expected impeachment on cross-examination. The state indicated that it was going to ask defendant whether he had ever been advised by a psychiatrist that he was a disoriented sexual psychopath and that he was dangerous to children. Defense counsel objected at that time as well as during the proffer of the state's proposed cross-examination of defendant. Although the trial court indicated that the state would not be permitted to ask the defendant whether he had ever been committed to a mental institution as a mentally disturbed sex offender, the court did give the state permission to ask the defendant whether he had ever been advised that he was a danger to small children and that he had significant psychosexual problems, if the proper predicate were laid. Defendant testified on direct examination that he never forced his wife to engage in sexual activities, that he had never engaged in a sexual act with any of the children, and that since he and his wife had been in Florida, they had no sexual relations. Before the state began its cross-examination, defense counsel asked the court if it would be necessary for him to remake his...
To continue reading
Request your trial
-
Ibar v. State
...v. State, 578 So.2d 685 (Fla.1990); Johns-Manville Sales Corp. v. Janssens, 463 So.2d 242 (Fla. 1st DCA 1984); Layton v. State, 348 So.2d 1242 (Fla. 1st DCA 1977)). Casas's testimony meets all four elements and was admissible on this The first trial was a judicial proceeding, and Casas was ......
-
State v. Anderson
...of a good faith attempt to locate the missing witnesses, See Poe v. Turner, 490 F.2d 329, 331 (10th Cir. 1974); Layton v. State, 348 So.2d 1242 (Fla.Dist.Ct.App.1977); State v. Biggerstaff, 16 N.C.App. 140, 191 S.E.2d 426 (1972); State v. Roberts, 55 Ohio St.2d 191, 378 N.E.2d 492, 9 O.O.3d......
-
Pope v. State
...v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980); Palmieri v. State, 411 So.2d 985 (Fla. 3d DCA 1982); Layton v. State, 348 So.2d 1242 (Fla. 1st DCA 1977); Outlaw v. State, 269 So.2d 403 (Fla. 4th DCA 1972), cert. denied, 273 So.2d 80 (Fla.1973). However, defense counsel's sta......
-
Lewis v. State, 49668
...where the latter has not chosen to place his character in issue. See Young v. State, 141 Fla. 529, 195 So. 569 (1940); Layton v. State, 348 So.2d 1242 (Fla. 1st DCA 1977); Roti v. State, 334 So.2d 146 (Fla.2d DCA 1976); Post v. State, 315 So.2d 230 (Fla.2d DCA 1975). However, due to our det......