O'Neil v. Gilbert, s. 92-2183

• Decision Date: 26 October 1993
• Docket Number: 92-2177,Nos. 92-2183,s. 92-2183
• Citation: 625 So.2d 982
• Parties: 18 Fla. L. Weekly D2305 Michael O'NEIL, Gloria O'Neil, his wife, and Kevin O'Neil and Synergy Gas Corporation, Appellants, v. Jasmine GILBERT, Appellee.
• Court: Florida District Court of Appeals

Page 982

625 So.2d 982

18 Fla. L. Weekly D2305

Michael O'NEIL, Gloria O'Neil, his wife, and Kevin O'Neil and Synergy Gas Corporation, Appellants, v. Jasmine GILBERT, Appellee.

Nos. 92-2183, 92-2177.

District Court of Appeal of Florida,

Third District.

Oct. 26, 1993.

Michael O'Neil, in pro. per.

Peters, Robertson, Lax, Parsons & Welcher and Yvette Rhodes Prescott, Miami, for Synergy Gas Corp.

Hoffman & Hertzig and Carl Hoffman, Coral Gables, for appellee.

Before SCHWARTZ, C.J., and HUBBART and COPE, JJ.

SCHWARTZ, Chief Judge.

The plaintiff Jasmine Gilbert recovered a jury verdict and the judgment now on appeal on the basis of her testimony that the serious burns she sustained on August 30, 1989, had been caused by the explosion of an allegedly defective gas stove at the apartment she shared with the tenant, her childhood friend from Haiti, Janine Sylfradin. To the direct contrary, Sylfradin stated essentially that Gilbert had been injured when a so-called voodoo ritual "lucky bath"--involving the use of fire--which Gilbert had been performing on herself went awry.

I.

Viewing it in the required light most favorable to the appellee, we find the evidence sufficient to support a finding of liability against both Synergy Gas Corporation, which had inspected and attempted to repair the stove, Russell v. Jacksonville Gas Corp., 117 So.2d 29 (Fla. 1st DCA 1960), and the O'Neils, the owners and landlords of the apartment. Mansur v. Eubanks, 401 So.2d 1328 (Fla.1981). Hence, we reject the appellants' respective claims to directed verdicts in their favor.

II.

We reverse for a new trial on all issues, however, because of the erroneous admission of improper impeachment evidence concerning the primary witness for the defense. In attempting to discredit Sylfradin's obviously devastating testimony--which was doubly so because it came from a close friend who had no apparent reason to hurt her--the plaintiff, over objection, introduced extensive evidence on Janine's cross-examination and through the rebuttal testimony of an "expert" witness, an immigration attorney, suggesting that she was in this country illegally and had made misrepresentations to the authorities to secure the lawful residency status which had been granted her. ¹ On the face of it, this issue was no more than an impermissible attempt to embarrass the witness on an immaterial matter. See Wallace v. State, 41 Fla. 547, 576, 26 So. 713, 722 (1899). The appellee successfully argued below, however, and contends here that Sylfradin's immigration status was admissible to show her "bias" in favor of the defendants' position. We do not agree.

While evidence of a witness's bias or prejudice is of course pertinent and admissible as reflecting upon his credibility in a particular case, Sec. 90.608(2), Fla.Stat. (1991), the immigration issue does not qualify under this rule. The plaintiff's argument that it did is plainly fallacious: it is based on the claim that (1) Sylfradin's status influenced her to testify in favor of the defendants because of (2) a fear that (3) her landlord, Mr. O'Neil, might otherwise report her and cause her difficulty with the immigration officials if she did not. The insurmountable difficulty with this position is that there is no evidence or reasonable inference from the record to support it, or, indeed, to support any of the many assumptions upon which it is based. To be precise: there was no showing whatever that O'Neil (or anyone else) had any knowledge of or doubts about the facts underlying Sylfradin's lawful immigration status, much less that, if known, he would have reported it, ² and much, much less that Sylfradin's testimony was influenced by a concern that he would. Since there is thus nothing left to support the claim that the immigration issue was in any way probative of Sylfradin's credibility, the testimony in question was not admissible to show bias. See State v. Pettis, 520 So.2d 250, 253-54 (Fla.1988); Wasko v. State, 505 So.2d 1314 (Fla.1987); A. McD. v. State, 422 So.2d 336 (Fla. 3d DCA 1982); Morell v. State, 297 So.2d 579 (Fla. 1st DCA 1974).

Instead it served only the plainly prejudicial purpose, which was eagerly exploited, ³ of disparaging the witness's character and thus, the acceptability of her testimony. Nelson v. State, 99 Fla. 1032, 128 So. 1 (1930); Wallace v. State, 41 Fla. at 547, 26 So. at 713; Weatherford v. State, 561 So.2d 629 (Fla. 1st DCA 1990); McClain v. State, 395 So.2d 1164, 1165 (Fla. 2d DCA 1981); see Loper v. Allstate Ins. Co., 616 So.2d 1055 (Fla. 1st DCA 1993); Dempsey v. Shell Oil Co., 589 So.2d 373 (Fla. 4th DCA 1991); see also Breedlove v. State, 580 So.2d 605, 609 (Fla.1991) ("Evidence of bias may be inadmissible if it unfairly prejudices the trier of fact. Therefore, inquiry into collateral matters, if such matters will not promote the ends of justice, should not be permitted if it is unjust to the witness and uncalled for by the circumstances."); Mosley v. State, 616 So.2d 1129, 1130 (Fla. 3d DCA 1993) (same); Canales v. Compania de Vapores Realma, S.A., 564 So.2d 1212 (Fla. 3d DCA 1990); DeSantis v. Acevedo, 528 So.2d 461 (Fla. 3d DCA 1988); Sec. 90.403, Fla.Stat. (1991). Because Sylfradin's testimony was so critical, the...