Nelson v. State, 77-541

• Decision Date: 03 October 1978
• Docket Number: No. 77-541,77-541
• Citation: 362 So.2d 1017
• Parties: Grady NELSON, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1017

362 So.2d 1017

Grady NELSON, Appellant, v. The STATE of Florida, Appellee.

No. 77-541.

District Court of Appeal of Florida, Third District.

Oct. 3, 1978.

Bennett H. Brummer, Public Defender, and Elliot H. Scherker, Asst. Public Defender, for appellant.

Robert L. Shevin, Atty. Gen., and James H. Greason, Asst. Atty. Gen., for appellee.

Before HENDRY and KEHOE, JJ., and PIERCE, WILLIAM C. (Ret.), Associate Judge.

PER CURIAM.

Appellant/defendant Grady Nelson was charged by information filed November 4, 1976, with robbery and aggravated battery. The acts were alleged to have occurred at Miami Beach Senior High School and perpetrated upon the person of Cindy Siegel, a student at the school.

Appellant's first trial commenced on December 13, 1976, and ended in a mistrial when the jury was unable to agree upon a verdict. A second trial was held on January 17, 1977. The jury returned a not guilty verdict on the robbery charge and a guilty verdict on the charge of aggravated battery. After post-trial motions for new trial were denied, appellant was adjudicated guilty and sentenced to four (4) years imprisonment. From appellant's conviction and sentence, this appeal has been taken.

In a lengthy and detailed brief, appellant has raised five points on appeal in which he contends that certain rulings of the trial judge deprived him of due process of law and/or a fair and impartial trial. After carefully reviewing the record in light of the briefs and authorities cited therein, and the oral argument of counsel, we are of the the opinion that reversible error has been demonstrated as to appellant's second point, which we shall discuss forthwith. In light of our decision to reverse appellant's conviction and sentence and remand for new trial, we shall also discuss the remaining four points raised by appellant immediately proceeding our discussion of what we consider to be the crux of this appeal.

POINT II

Whether the trial judge erred in limiting the cross-examination of two State's witnesses and further erred in limiting the defense's presentation of its case by refusing to allow defense counsel to introduce a statement of the victim which would explain or rebut adverse inferences created by the introduction of a taped statement given by appellant to the arresting officer.

At trial, the prosecution introduced a taped statement taken from appellant at the time of his arrest. In the statement, appellant admitted having been at Miami Beach High School on the day of the incident to obtain his diploma, but denied that he had assaulted Miss Siegel. Further the statement included a series of questions by Sergeant Duncan, the arresting officer, concerning During the first trial, which as previously mentioned, ended in a mistrial when the jury was unable to agree upon a unanimous verdict, the prosecution sought to introduce into evidence the clothing which appellant had given Sergeant Duncan. The prosecutor suggested at That time that the clothes were Relevant since appellant had been wearing them on the day of the incident. The clothing was thereupon introduced into evidence. At the first trial, Sergeant Duncan testified on cross-examination that Cindy Siegel Did not recognize the clothes when they were shown to her after the incident.

the clothing worn by appellant on the day of the incident. Under questioning, appellant had stated that he had given the police the shirt, trousers, hat and sunglasses which he had worn on October 8, 1976, the day of the incident.

At the second trial, defense counsel sought to cross-examine Siegel regarding the clothing which Sergeant Duncan had obtained from appellant. The prosecution objected to this cross-examination on the grounds that no evidence had been introduced to establish that Miss Siegel had ever identified the clothing. Defense counsel proffered that the relevancy of the testimony would be established by subsequent evidence, (cross-examination of Duncan) and requested that the cross-examination be allowed "subject to tying it up at a later time." The court sustained the objection and refused to allow cross-examination.

Subsequently, as in the first trial, the prosecution again introduced into evidence the taped statement given by appellant to Sergeant Duncan. Upon cross-examination of Duncan by the defense, the trial judge again refused counsel the opportunity to question the arresting officer on the subject of appellant's clothing, i. e., that Miss Siegel could not identify the clothing as that worn by her assailant. Further, when the defense presented its case, the trial judge did not allow counsel for appellant to introduce into evidence the clothing allegedly worn by appellant on the day of the incident and given to Sergeant Duncan.

The jury was apprised at the outset of the trial that the only issue in the case would be identity. At the time of closing argument, the prosecution introduced three pertinent facts: (1) that Miss Siegel had identified appellant as her assailant; (2) that her assailant wore a brown and white striped shirt and light brown trousers; and (3) that appellant gave Sergeant Duncan the clothing which he stated he had worn on the day of the incident.

The defense centered its efforts on demonstrating that Miss Siegel had made numerous inconsistent statements and that her memory of the events was unreliable. Yet, the jury never heard the defense attempt to establish, either through cross-examination of Miss Siegel, through contradictory testimony of Miss Siegel brought out through Sergeant Duncan, or by introduction of the actual clothing, itself, that The clothing which appellant had given Sergeant Duncan was not the clothing described by Miss Siegel as having been worn by her assailant.

The record in this case clearly establishes that the jury drew adverse inferences from the absence of any testimony concerning the clothing. During deliberations, the jury submitted the following question:

"On the tape it is stated clothes (pants, shirt, cap) and sunglasses were taken from the defendant.

"Is there any way these can be produced or we can find the colors of these?"

The record also reflects that the absence of testimony concerning the clothing was of considerable significance in the ultimate decision of the jury. In the supplemental motion for new trial was a sworn statement of one of the jurors taken by the defense pursuant to an order of the trial judge permitting the defense to interview the trial jurors. The statement establishes the jury's concern about the absence of testimony on the subject:

" . . . We wanted to know. It seemed to us that somebody was trying to hold something back."

The juror further stated that if the jury had been informed (as it was at the first It is our opinion that the trial judge erred in limiting the cross-examination of both Miss Siegel and Sergeant Duncan on the subject of appellant's clothing once the State had "opened the door" to this testimony by the introduction of the taped statement of appellant. Further error was committed by refusing to allow the defense to introduce into evidence the clothing given to Sergeant Duncan by appellant. The defense should have been permitted to rebut the adverse inferences established by the taped statement by (1) eliciting from either of the witnesses the inability of Miss Siegel to identify the clothing as that worn by her assailant, or (2) by actually introducing the clothing into evidence. Ellison v. State, 349 So.2d 731 (Fla.3d DCA 1977); see Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1028, 35 L.Ed.2d 297 (1973) and Elmore v. State, 291 So.2d 617 (Fla.4th DCA 1974).

trial) that Cindy Siegel had examined the clothing and had stated that it was not the clothing worn by her assailant, the jury "would have hung."

Clearly, the error committed could in no way be deemed harmless in light of the jury's reaction to the fragmentary character of the evidence and the sole issue to be determined by the jury, i. e. identity of the assailant. The question submitted by the jury to the trial judge during deliberation, as well as the sworn statement of the juror taken by defense counsel, conclusively show that in the Absence of an explanation of the clothing given by appellant to Sergeant Duncan, the jury drew adverse inferences that significantly influenced their ultimate decision. The law is settled that where jurors consider matters Not in evidence to the prejudice of a defendant, a new trial is mandated. Russ v. State, 95 So.2d 594 (Fla.1957).

Accordingly, appellant is entitled to a new trial.

POINT I

Whether the trial judge erred in refusing to compel the production of the Grand Jury testimony of Miss Siegel.

As has previously been mentioned, the only issue involved in this case was that of identity, and likewise, the only defense was the misidentification of appellant as...