Love v. State

• Decision Date: 09 January 2008
• Docket Number: No. 4D06-785.,4D06-785.
• Citation: 971 So.2d 280
• Parties: Robert LOVE, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

971 So.2d 280

Robert LOVE, Appellant, v. STATE of Florida, Appellee.

No. 4D06-785.

District Court of Appeal of Florida, Fourth District.

January 9, 2008.

Carey Haughwout, Public Defender, and Anthony C. Musto, Special Assistant Public Defender, Hallandale Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, Julie D. Lindahl and Diane F. Medley, Assistant Attorneys General, West Palm Beach, for appellee.

GROSS, J.

Many criminal trials are like boxing matches, where the state and defense trade punches within defined rules of engagement. This case resembled an ultimate fighting video game, without rules, where the goal of each side was to win at any cost. Because of one fundamental error in the jury instructions and three prejudicial evidentiary errors, we reverse. See § 924.051, Fla. Stat. (2006).

Robert Love appeals five convictions — two counts of battery on a police officer, one count of resisting an officer with violence, one count of driving with a suspended, canceled or revoked license, and one count of possession of marijuana in excess of 20 grams. All crimes occurred during a traffic stop in Pahokee.

This was not the garden variety police-citizen encounter. Love is a community activist who frequently criticized the Pahokee police department in city commission meetings. As described in his brief, Love's "defense was that the Pahokee police department used the traffic stop in this case as an opportunity to beat him because of his complaints about them and his assertions that they were corrupt."

The state's version of the case began when Officer George Hachigian stopped Love for driving at night without headlights on. After seeing Love's name on his driver's license, the officer radioed for backup. Fifteen seconds later, Officer James Levey arrived at the scene. Over his police radio, Officer Hachigian learned that Love's license was suspended. Officer Hachigian did not know if Love knew about the suspension, so he contemplated issuing a citation for the infraction of driving with a suspended license without knowledge. See § 322.34(1), Fla. Stat. (2006). However, according to Officer Levey, Love admitted to knowing about the suspension. Corporal Linning Peters, the shift's commanding officer, ordered Officer Levey to arrest Love for the crime of knowingly driving with a suspended license. See § 322.34(2), Fla. Stat. (2006).

According to the officers, when they attempted to make the arrest, Love slapped the handcuffs out of Officer Levey's hands and pushed him down. He then ran away. Officer Hachigian jumped on Love's back. Officer Levey hit Love with a baton, knocking him down. While Love was tussling with Officer Hachigian on the ground, Officer Levey hit Love several times with the baton and his fist. Within seconds, the officers handcuffed Love and the struggle ended. Soon, Corporal Peters came to the scene. Several sheriff's deputies arrived to help control the crowd that had formed during the arrest.

After the arrest, Officer Hachigian conducted an inventory search of Love's car and found a bag containing marijuana. The state presented evidence that a DNA profile taken from the bag was consistent with that of Love.

Love's version of events differed from that of the officers. Love said that he was told he was under arrest and ordered to put his hands on the car. He asked why he was being arrested. Officer Levey knocked him to the ground, struck him with the baton, and hit him in the knee. Officer Hachigian jumped Love and choked him while Officer Levey continued to beat him with the baton. Love insisted that he did not resist the arrest, threaten the officers, run, raise his hand to them, or knock handcuffs out of Officer Levey's hands.

The defense called witness Mila Ivery who observed the incident from across the street. As she left church after attending a service, Ivery saw Love talking to one policeman when another officer approached and hit Love with a stick. Love did nothing to incite the officers; he was just talking when the violence began. Love did not fight back. When he went to the ground, the officers hit him and beat "him in the face." At this point, a third officer arrived and pointed a gun at the crowd in which she was standing.

On cross examination, the prosecutor established that Ivery saw the encounter along with a group of ten to twelve people outside of the church. Mrs. Ivery said that she regularly saw these people in church on Friday nights. Over objection, the prosecutor had Ivery agree that none of these potential witnesses were outside the courtroom prepared to testify. During closing argument, the prosecutor commented on Love's failure to produce any of these witnesses to corroborate Ivery's version of the facts.

It was error to allow the state to attack Love for failing to produce additional witnesses to back up Ivery's story. In a criminal case, the burden is on the state to prove a crime beyond a reasonable doubt; "a defendant has no obligation to present witnesses." Jackson v. State, 575 So.2d 181, 188 (Fla.1991). To protect this tenet of due process, the general rule is that "the state cannot comment on a defendant's failure to produce evidence to refute an element of the crime, because doing so could erroneously lead the jury to believe that the defendant carried the burden of introducing evidence." Id. The supreme court has "applied a narrow exception" to the general rule to "allow comment when the defendant voluntarily assumes some burden of proof by asserting the defenses of alibi, self-defense, and defense of others, relying on facts that could be elicited only from a witness who is not equally available to the state." Id. A witness is not "equally available" to the state if the witness has a special relationship with the defendant. Lawyer v. State, 627 So.2d 564, 567 (Fla. 4th DCA 1993).

Applying the supreme court's holding in Jackson, this court has held that the manager at a defendant's former place of employment, Lawyer, 627 So.2d at 567, a coworker of the defendant's girlfriend, Thomas v. State, 726 So.2d 369, 370 (Fla. 4th DCA 1999), and a person whom the defendant had met at a homeless shelter, Hogan v. State, 753 So.2d 570-71 (Fla. 4th DCA 1999), did not have the type of special relationship with a defendant that would allow the state to comment upon their absence at trial. In a pre-Jackson case, Crowley v. State, 558 So.2d 529 (Fla. 4th DCA 1990), we reversed a conviction where a prosecutor's closing argument focused on the defendant's failure to call any of the people at the scene of his arrest to corroborate his claim that drugs found on the ground were not his.

This case meets neither of the Jackson requirements that would allow the state to make an issue of a defendant's failure to call witnesses. First, Love raised no affirmative defense for which he assumed any burden of proof; he claimed that the crimes never occurred. Second, Love had no special relationship with the witnesses outside of the church; the witnesses were analogous to the people at the scene of the crime in Crowley. It was therefore prejudicial error for the prosecutor to focus on the failure to call these witnesses during both the cross examination of Ivery and closing argument.¹

Love next attacks a ruling that precluded him from offering evidence about the bias of a state witness. Corporal Peters testified during the state's case. During the defense case, Love called Lawrence Holborow, a former member of the Pahokee police department who had supervised Peters. Holborow was prepared to testify that four months before Love's arrest, Peters and Love had a heated discussion during which Peters said to Love, "Do you think it's okay to call me cracker, nigger?" The trial judge refused to admit the testimony, ruling that the prejudicial effect of the testimony substantially outweighed its probative value under section 90.403, Florida Statutes (2006). The court commented that the testimony might "become the theme of the case . . . to the exclusion of what really happened."

The trial court erred in preventing Love from introducing evidence about Peters's racial bias, since such testimony was admissible under section 90.608(1)(b), Florida Statutes (1996). To introduce Holborow's testimony, Love was not required to question Peters about the statement during the state's case. See Jones v. State, 678 So.2d 890, 893 (Fla. 4th DCA 1996); Alford v. State, 47 Fla. 1, 36 So. 436 (1904).

Section 90.608(2)(e) provides that any party may attack the credibility of a witness by "[s]howing that the witness is biased." Where a defendant is African-American, a witness's bias against the defendant as an African-American, as well as a generalized prejudice against black persons, are proper subjects to explore under section 90.608(2). See Jackson v. State, 585 So.2d 420 (Fla. 1st DCA 1991); Lee v. State, 422 So.2d 928, 931 (Fla. 3d DCA 1982); Smith v. State, 404 So.2d 167, 169 (Fla. 1st DCA 1981). "The ability to expose an improper impetus for a witness' testimony is an essential component of the right to a jury trial." Jones, 678 So.2d at 892; see Purcell v. State, 735 So.2d 579 (Fla. 4th DCA 1999). Although a trial judge has the discretion to control the mode, order, and scope of cross examination under section 90.612(1), Florida Statutes (2006), such discretion is "constrained by a defendant's right to confront adverse witnesses." Smith, 404 So.2d at 169. Similarly, the Sixth Amendment narrows a trial court's discretion to exclude evidence of a witness' bias under section 90.403.

The trial court abused its discretion in disallowing Holborow's testimony, which concerned Peters's expression of bias directly to Love. This was not a case where the bias was "too remote in time from the incident in question" or without any connection to the case. Lee, 422 So.2d at 931.

Next, Love complains about a number of evidentiary rulings that he did not preserve at trial with a proper...