Miller v. State

• Decision Date: 27 April 1994
• Docket Number: No. 92-3164,92-3164
• Citation: 636 So.2d 144
• Parties: 19 Fla. L. Weekly D938 Sherwin James MILLER, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 144

636 So.2d 144

19 Fla. L. Weekly D938

Sherwin James MILLER, Appellant, v. STATE of Florida, Appellee.

No. 92-3164.

District Court of Appeal of Florida,

First District.

April 27, 1994.

Leo A. Thomas, of Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A., Pensacola, for appellant.

Robert A. Butterworth, Atty. Gen., and Edward C. Hill, Jr., Asst. Atty. Gen., Tallahassee, for appellee.

PER CURIAM.

Appellant, Sherwin James Miller, appeals an order placing him on probation following a jury verdict of guilt of the offenses of battery upon a law enforcement officer, reckless driving, and resisting arrest without violence. Appellant seeks review of the trial court's rulings with respect to (1) exclusion of testimony of a defense witness, (2) denial of judgment of acquittal as to the charge of battery of Officer James, (3) denial of judgment of acquittal as to the charge of reckless driving, (4) denial of judgment of acquittal as to the charge of resisting arrest, and (5) permitting the prosecutor to exercise peremptory challenges as to the only two African American members of the venire. We affirm in part and reverse in part.

The nature of the issues requires a somewhat detailed presentation of the pretrial proceedings, the jury selection process, and the trial proceedings. The first information filed in this cause charged appellant's companion, Wendy Baudin, with one count of battery upon a law enforcement officer, and charged appellant with two counts of battery upon a law enforcement officer and one count of reckless driving. Appellant and Ms. Baudin were represented by the same attorney. Before the case went to trial, Ms. Baudin pled nolo contendere to the lesser offense of resisting arrest without violence. At the plea proceeding, the attorney who represented both appellant and Ms. Baudin advised the trial court and the prosecutor that he intended to call Ms. Baudin as a defense witness at appellant's trial. The cause proceeded to trial on an amended information which charged appellant with the offenses of battery upon Officer James, battery upon Sergeant Griffin, reckless driving, and resisting arrest with violence.

During jury selection, the prosecutor challenged a female African American for cause, because the prospective juror stated in the initial voir dire that she would find it difficult to make a moral decision in a criminal trial. Under questioning by the trial judge, the prospective juror stated she is a very sympathetic person, who is prone to cry when a jury verdict is returned. The prospective juror then stated she thought she could be fair, and that she would not let sympathy enter into her decision. Upon conclusion of the colloquy, the prosecutor exercised a peremptory challenge to strike the prospective juror. Defense counsel objected on grounds that the prosecutor's peremptory challenge was based on racial discrimination. The parties stipulated that the defendant/appellant is a white male, and the challenged juror is an African American female. Noting that the prospective juror equivocated when asked whether she would let sympathy enter into the verdict, the trial judge permitted the state to exercise a challenge to excuse the prospective juror.

When the prosecutor challenged a second African American female, defense counsel again objected on racial grounds. In response to the court's inquiry, the prospective juror stated she had spent many sleepless nights worrying about her son in prison, but would do her best to decide the case fairly. When the trial court denied the prosecutor's challenge for cause, the state exercised a peremptory challenge. Defense counsel again raised an objection based upon racial discrimination grounds. A third African American venire person was excused on grounds of extreme hardship.

The charges in this case arose in the context of a vehicle stop for an alleged traffic violation. At 8:00 a.m. on April 14, 1992, appellant drove Ms. Baudin to her job on the campus of the University of West Florida. Sergeant Griffin, a university police officer, was monitoring in-bound traffic. He testified that he observed appellant's vehicle approach in the in-bound lane at a high rate of speed. When appellant's vehicle passed the patrol vehicle, Sergeant Griffin turned on his blue lights and gave chase. He pulled up beside appellant's vehicle and motioned to him to pull over, but appellant drove on after making what Sergeant Griffin interpreted as an obscene gesture. At that point, Sergeant Griffin sounded his siren.

Officer James, also a member of the university police force, was stationed one-half mile from Sergeant Griffin's original position. When he observed Sergeant Griffin's blue lights, Officer James joined the chase. Appellant pulled his vehicle onto the parking pad at the building where Ms. Baudin works, whereupon Ms. Baudin left the car and entered the building. The two officers angled their patrol cars at the front and rear of appellant's vehicle. As the officers handcuffed appellant, Ms. Baudin observed the activity from a window of the building and ran back outside to ask what the officers were doing. While Officer James handcuffed appellant, Sergeant Griffin's verbal exchange with Ms. Baudin escalated into a physical confrontation. When Sergeant Griffin grappled with Ms. Baudin, appellant reacted. His effort to move toward Sergeant Griffin caught Officer James off balance, and ended with both the officer and appellant falling to the ground. Officer James testified that appellant did not strike him intentionally, and offered no initial resistance to the arrest. Appellant reacted only when Sergeant Griffin had his hands on Ms. Baudin. Officer James did not see appellant make any physical contact with Sergeant Griffin.

Sergeant Griffin testified that he monitors traffic in the morning hours when in-bound traffic is heavy, because there are walkers, bikers, and runners in the area at that time. When the sergeant first observed appellant, he appeared to be traveling fifty to fifty-five miles per hour, then slowed to approximately forty miles per hour after he passed a traffic light. Although appellant seemed to have his vehicle under control, the sergeant concluded he should not have been driving so fast in view of the vehicle and pedestrian traffic around him.

When the defense called Ms. Baudin as a witness, the prosecutor objected that he had not been furnished written notice. Defense counsel asserted the state could not claim surprise, because Ms. Baudin was a co-defendant. Counsel said he did not consider it necessary to provide written notice that a co-defendant would be called as a witness. Counsel further stated that at Ms. Baudin's plea hearing, he advised the trial court and the prosecutor that Ms. Baudin would testify at trial. After excusing the jury, the trial court read the discovery rule governing witnesses, noting particularly the portion which states, "the defendant shall furnish to the prosecutor a written list of the names and addresses of all witnesses." The trial court made no ruling as to possible prejudice to the state, but excluded Ms. Baudin's testimony, seemingly because her name was not included on the written list of defense witnesses.

Ms. Baudin's proffered testimony indicates that when appellant became aware of the patrol car behind him, he continued on to the building in which she works, because there was no safe place to pull over when the initial contact was made. Ms. Baudin then described observing the officers as they searched appellant, and rushing from the building to ask what was happening. Sergeant Griffin told her not to get involved. Ms. Baudin said that as she tried to retrieve her car registration and appellant's wallet from the trunk, Sergeant Griffin grabbed her arms and started to pull her towards him. Appellant interposed a verbal objection. As Officer James yanked on appellant's handcuffs and threw him to the ground, Sergeant Griffin released Ms. Baudin. She testified that she then went into the office and called campus security for help, advising that the officers were out of control.

After the proffer of Ms. Baudin's testimony, appellant testified that from the point he passed Sergeant Griffin until he got to the intersection, the traffic was light to moderate with possibly one or two runners in the area. Appellant said he traveled in the left lane, as he always does to avoid runners. When he observed Sergeant Griffin's blue light, he did not pull over immediately because there was no safe place to stop. According to appellant, he made a hand gesture to the officer to follow him. After he stopped his vehicle, Officer James asked for appellant's license and vehicle registration, and directed appellant to step to the rear of the car. Officer James frisked and then handcuffed appellant. Appellant stated that as Officer James guided appellant into the rear of the patrol car, appellant saw Sergeant Griffin grab Ms. Baudin and physically manhandle her. When appellant protested, Officer James snatched the handcuffs in a backward direction and appellant went to the ground.

The jury returned a verdict of not guilty as to the count two charge of battery of Sergeant Griffin, but found appellant guilty as charged of battery upon Officer James (count one) and reckless driving (count three), and guilty of the lesser offense of resisting arrest without violence (count four).

The first issue for our review concerns the exclusion of the testimony of defense witness Wendy Baudin, because her name was not included on the written list of witnesses furnished to the prosecutor. Resolution of this issue involves the construction to be accorded discovery rule 3.220(d)(1), of the Florida Rules of Criminal Procedure. Rule 3.220(d)(1) provides in part:

(1) Within 7 days after receipt by the defendant of the list of names and addresses furnished by the prosecutor pursuant to subdivision (b)(1)(A) of this rule, the...