Lee v. State

• Citation: 566 So.2d 264
• Decision Date: 14 May 1990
• Docket Number: No. 89-136,89-136
• Parties: 15 Fla. L. Weekly D1394 Sylvester O'Neal LEE, Appellant, v. STATE of Florida, Appellee.
• Court: Court of Appeal of Florida (US)

Page 264

566 So.2d 264

15 Fla. L. Weekly D1394

Sylvester O'Neal LEE, Appellant, v. STATE of Florida, Appellee.

No. 89-136.

District Court of Appeal of Florida First District.

May 14, 1990.

Rehearing Denied Oct. 1, 1990.

Michael E. Allen, Public Defender and Carl S. McGinnes, Asst. Public Defender, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen. and James W. Rogers, Asst. Atty. Gen., Tallahassee, for appellee.

WIGGINTON, Judge.

Before us for review are appellant's judgment of conviction and sentences following a retrial on multiple charges of kidnapping, sexual battery with a deadly weapon, robbery with a firearm, and possession of a firearm by a convicted felon stemming from an incident which occurred on December 15, 1983. In an earlier appeal, this court reversed the judgment of conviction and remanded for a new trial holding that the trial court had erred in admitting the testimony of three bank tellers who identified appellant as a participant in a Tallahassee bank robbery committed on the same day as the offenses in the instant case. See Lee v. State, 508 So.2d 1300 (Fla. 1st DCA 1987), approved, State v. Lee, 531 So.2d 133 (Fla.1988). In the original trial, the state attempted to offer such testimony under the "Williams Rule" on the basis that it revealed appellant had robbed the bank while armed with a handgun, thereby corroborating evidence that he also used a handgun during the offenses at issue as well as tending to establish the entire context out of which the criminal episode occurred. Disagreeing, the supreme court, in approving this court's decision, held that because no connection was established between the bank robbery and the instant offenses, the evidence of the bank robbery was not relevant to establish the entire context out of which the criminal conduct arose and did not establish that the gun used during the robbery was the gun used during the offenses at issue. Significantly, the supreme court concluded that the testimony "did not have a relevant or a material bearing on any essential aspect of the offenses being tried and did not tend to prove a material fact in issue...." 531 So.2d at 135. Further, in both this court's and the supreme court's opinions, it was ruled that the state did not carry its burden of establishing a prima facie showing of harmless error.

On retrial, appellant took the stand on his own behalf and, although admitting having had consensual sex in a car with a black woman on the night in question, could not recall her name or identify whether it was the victim. Notwithstanding, he did describe the car as being that of the victim. He also admitted generally having been tried in 1985 or 1986 for the robbery of a Tallahassee bank, as well as having entered a no contest plea to a second Tallahassee bank robbery.

On cross-examination, the state again attempted to interject into the proceedings specific evidence concerning the Tallahassee bank robberies by asking appellant whether at any time on December 15 he had in his possession a pistol. Appellant responded in the negative. Thereafter, over strenuous defense objection, the prosecutor was granted permission to adduce evidence that appellant used a gun in one of the robberies in order to allegedly impeach appellant's testimony that he did not have a gun that day. When shown a photograph of a man in disguise holding a gun in the bank, appellant denied that the picture was of him. At that point, cross-examination ended and defense rested and moved for a mistrial because of the reference to the bank robberies. The motion was denied.

On rebuttal, the state, over defense objection, introduced the testimony of two bank employees who identified appellant as having been one of the robbers and stated that he was carrying a gun. After the state rested, appellant's renewed motions for mistrial and acquittal were denied. The jury returned a verdict finding appellant guilty as charged on all four counts of the information. The trial court departed from the guidelines sentence of life in prison by imposing consecutive life sentences for kidnapping,...