Pate v. State, 86-2161

• Decision Date: 29 July 1988
• Docket Number: No. 86-2161,86-2161
• Citation: 529 So.2d 328,13 Fla. L. Weekly 1797
• Parties: 13 Fla. L. Weekly 1797 Stephen PATE, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 328

529 So.2d 328

13 Fla. L. Weekly 1797

Stephen PATE, Appellant, v. STATE of Florida, Appellee.

No. 86-2161.

District Court of Appeal of Florida,

Second District.

July 29, 1988.

James Marion Moorman, Public Defender, and Stephen Krosschell, Asst. Public Defender, Bartow, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellee.

LEHAN, Judge.

Defendant was convicted and sentenced for sexual battery and kidnapping. He raises five issues on appeal. We reverse and remand for a new trial on the first issue and briefly address the remaining four issues.

Defendant first contends that reversible error was committed when the trial court allowed the state to cross-examine the defendant concerning his giving of a false name and address during a prior D.U.I. arrest, his failure to appear in court on that charge, and a separate sexual battery charge pending against defendant. We agree and reverse for a new trial.

The disputed questions on cross-examination were apparently prompted by two statements made by defendant on direct examination. Those two statements were (1) that he thought at first that the arrest for the current charges concerned his D.U.I. offense and (2) that the reason for his initial refusal to talk to the arresting officer was that the nature of the current charges scared him because he was "not normally accustomed to it." Although defendant did not explain then what it was he was not "normally accustomed" to, on cross-examination he said he meant he was not accustomed to being arrested for a serious crime.

As to the defendant's first statement which concerned his D.U.I. arrest, the state's questions about the arrest and related matters were entirely collateral and had the effect only of showing defendant's bad character. See Fulton v. State, 335 So.2d 280 (Fla.1976); Finlay v. State, 424 So.2d 967 (Fla. 3d DCA 1983); Gelabert v. State, 407 So.2d 1007 (Fla. 5th DCA 1981).

As to defendant's second statement, on cross-examination the state asked defendant whether the current charges represented his first contact with police, whether defendant had been charged with a serious felony before, and whether defendant had twice been convicted, culminating in the questioning about the pending sexual battery charge. This entire line of questioning on the collateral matter of defendant's experience with police was improper. It was error to allow inquiry into defendant's past criminal history other than convictions. See Fulton; Gelabert; Dixon v. State, 426 So.2d 1258 (Fla. 2d DCA 1983); Sneed v. State, 397 So.2d 931 (Fla. 5th DCA 1981); Ragusa v. State, 338 So.2d 1103 (Fla. 4th DCA 1976).

We now respectfully address the position of the dissenting opinion in this case. That position appears to be that the questions on cross-examination were proper attempts to get defendant to contradict his false testimony on direct examination. That opinion does not precisely identify which testimony by defendant is thought to have been false and is therefore thought to have been subject to impeachment. But we assume that that testimony consists of the two statements set out above in the third paragraph of this opinion.

As to the first statement--that defendant thought his current arrest was for his D.U.I. offense--this cannot be said to have been a false statement and did not justify an attempt to impeach that testimony. Nor did the mere mention of the D.U.I. arrest open the door for the state to delve into the matters which followed that arrest, such as the failure to appear and the giving of a false birthdate.

As to the second statement, the state's questions concerning defendant's prior contact with police and prior arrests seemed to be an attempt to impeach the testimony that he was "not normally accustomed to it." But this testimony was so inherently imprecise that it is not susceptible of being called false and, therefore, impeachable. Also, even on the basis that defendant meant he was not normally accustomed to being arrested on serious charges, the statement cannot be said to be false. The two serious charges referred to by the state in its attempt to impeach this statement were the D.U.I. and the other pending sexual battery. However, the record does not conclusively show that the arrest for the other sexual battery occurred prior to the arrest in this case, and we do not conclude that the existence of the D.U.I. arrest rendered false defendant's statement that he was not "normally accustomed" to being arrested on serious charges. Even if we were to conclude (and we do not feel entitled to do so) that the other sexual battery arrest did occur prior to the arrest in this case, we still would not consider the state's questions to have been proper. See Ragusa. In that case, a question on cross-examination accusing defendant of criminal conduct was found to be reversible error and not proper to impeach defendant's prior statement that he was "not in the habit of breaking the law." That prior statement was found not to have opened the door to that cross-examination.

Although, having reversed on the first issue, we need not address the remaining issues, we do so briefly since we are remanding for a new trial. Defendant's second contention is that hypnotically induced testimony was improperly admitted without proper safeguards. Defendant concedes that the prohibition against hypnotically refreshed testimony contained in Bundy v. State, 471 So.2d 9 (Fla.1985), does not apply because that case stated that that prohibition would apply only to hypnosis sessions conducted after the date of that opinion. The session in this case was conducted prior to that date. Nonetheless, defendant contends that the safeguards contained in Brown v. State, 426 So.2d 76 (Fla. 1st DCA 1983), should apply. We disagree.

This case is similar to the first Bundy case, Bundy v. State, 455 So.2d 330, 339-343 (Fla.1984), in that this case does not actually involve hypnotically-refreshed testimony. In this case, as in that case, the witness had given a description of the attacker prior to hypnosis, was not shown a picture of defendant before being hypnotized, and identified defendant when shown his picture some time after the hypnosis session. In neither case were significant facts recalled during hypnosis which contributed to the identification of the attacker. Accordingly, we find no error in admitting into evidence the victim's identification of defendant.

We do not address defendant's third issue on appeal concerning the trial court's failure to grant a continuance. That issue is moot in light of our reversal for a new trial.

Defendant's fourth issue raises various asserted errors not objected to below which he contends amount to fundamental error. It is not appropriate for us to anticipate whether there will be any such objections upon retrial or what the ruling of the trial court might be if there are, especially since the law governing these aspects does not appear to require clarification.

Defendant's final issue concerns an alleged error in the calculation of the sentencing guidelines scoresheet, which we need not address.

Reversed and remanded for a new trial.

FRANK, J., concurs.

CAMPBELL, C.J., dissenting with opinion.

CAMPBELL, Chief Judge, dissenting.

I must respectfully dissent in regard to the conclusion of the majority that appellant's conviction should be reversed on the basis of the first issue he raises in this appeal. I do not believe that the questions on cross-examination of the defendant concerning a prior D.U.I. arrest, his failure to appear in court on that charge and a separate sexual battery charge pending against appellant were entirely collateral and had the effect only of showing appellant's bad character.

It seems to me to be beyond dispute that the objected-to testimony elicited on cross-examination was for the permissible express purpose of contradicting appellant's testimony on direct examination and thereby directly attacking his credibility. When done for that purpose, it is immaterial that the elicited testimony is to collateral matters or serves to demonstrate bad character.

Appellant was arrested on the kidnapping and sexual battery charge in Houston, Texas by Detective Allyn of the Hillsborough County Sheriff's Office. Detective Allyn testified that on the plane ride from Houston to Tampa, appellant volunteered information about his reasons for leaving Tampa and going to Houston. Detective Allyn had testified that the investigation of the sexual battery and kidnapping had led to an automobile identified by the victim and traced to appellant. Appellant had been arrested for D.U.I while driving the vehicle which was later identified by the victim.

The automobile and appellant's ownership of it were crucial links in the evidence leading to appellant's conviction. It was his D.U.I. arrest while driving that automobile, the subsequent impoundment of the automobile, and appellant's abandonment of the impounded automobile that directly led to his identification and arrest as the probable perpetrator of the kidnapping and sexual abuse. After appellant was identified as a result of the D.U.I. arrest and his connection with the impounded vehicle, Detective Allyn went to appellant's Hillsborough County apartment and tried, to no avail, to get appellant to answer his repeated knocking on the apartment door. It appears that immediately thereafter appellant left for Texas in a truck. ¹

Appellant was traced to Texas where he was subsequently arrested by Detective Allyn. Detective Allyn testified as follows concerning the conversation that took place with appellant on the plane ride back from Houston:

Q. What about on the plane ride home?

A. On the plane ride home we had just cursory conversation. I was reading a magazine and he made the statement to me, "I recognized you."

And I said, "I beg your pardon." And he said, "I...