Lee v. State
| Decision Date | 31 July 1975 |
| Docket Number | No. 74--1554,74--1554 |
| Citation | 318 So.2d 431 |
| Parties | Willie LEE, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Richard L. Jorandby, Public Defender, and Maureen L. McGill, Special Asst. Public Defender, West Palm Beach, for appellant.
Robert L. Shevin, Atty. Gen., Tallahassee, and Stephen R. Koons, Asst. Atty. Gen., West Palm Beach, for appellee.
The defendant was found guilty by jury verdict on August 27, 1974 on a two count information charging him with possession and sale of heroin.
The State's case rested on the testimony of a paid informant employed by the Palm Beach County Sheriff's Office.* The informant testified he purchased two dime bags of heroin for $20.00 from the defendant on April 7, 1974 in Palm Beach County. Sometime prior to the trial the informant was arrested in Orange County charged with a robbery which occurred in Orange County in June of 1974. This charge was still pending on the date the informant testified at the trial.
Before trial the State filed a written motion to limit the cross-examination of the informant to preclude the defense from establishing that the informant was presently charged with the crime of robbery. The Assistant State Attorney represented in his motion that he had been requested by the Assistant State Attorney in Orange County, who was handling the robbery case, not to grant any sort of immunity to the informant. The motion further represented that the State had made no 'deals' or 'promises' to the informant concerning the case pending against him, that if the informant were asked questions on the robbery charge he may receive unintended immunity for that charge and, therefore, the State would be forced to abandon prosecution or nolle prosequi the narcotics case sub judice, and that there were about 40 to 60 other narcotics cases which hinge on this informant's testimony.
At the trial the Court sustained the State's objection to the informant being asked about the pending robbery charge. The question the defense proposed to ask the informant was 'Were you, in fact, arrested and charged in Orange County, Florida, with the crime of robbery,' and limit the response to a yes or no answer. The defense raises as error on appeal the aforesaid ruling of the Court.
The defense relies on Morrell v. State, 297 So.2d 579 (Fla.App.1974) for the proposition that, in cases where the impeaching evidence is material and relevant to the witness's present bias, motive or interest in giving his testimony, the defense has an absolute right to bring that evidence out on cross-examination.
The State argues that 'no deals' were made for the informant's cooperation, the crime the informant is charged with is not drug related, and the charged crime is remote as to the time (two months) and place (Orlando, Florida) where the drug transaction took place. Therefore, the impeaching evidence is not relevant or material.
In facing the relevancy and materiality of this evidence the following question is considered. Could a witness who has operated as a paid informant for a sheriff's office on numerous drug buys and who, between one of these buys and its prosecution, is himself charged with a crime of robbery which is pending at the he is called by the State to testify in the drug case, be materially influenced or biased in the giving of his testimony by the fact of his being so charged.
The answer is clearly yes and the reasons are aptly set out in dicta in the Morrell case, supra. Further, the inquiry meets the standards set in Wallace v State, 26 So. 713 (Fla.1899), one of which is that 'the transaction inquired about must be one which bears directly upon the Present character or credit of the witness' (emphasis added.)
The issue thus becomes one of considering the interrelationship of the witness's Fifth Amendment right not to incriminate himself, the defendant's Sixth Amendment right to confront the witness who testifies against him, and the Immunity Statute, F.S. 914.04, wherein a person who testifies concerning matters that would incriminate him while under subpoena may be entitled to immunity.
On this issue it is helpful to distinguish between the facts and circumstances surrounding the actual robbery and the witness's relation thereto, and the facts and circumstances surrounding the effect on a person of being charged with...
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