Perry v. State, HH-200
| Decision Date | 23 February 1978 |
| Docket Number | No. HH-200,HH-200 |
| Citation | 356 So.2d 342 |
| Parties | Glenwood PERRY and James Rushin, Jr., Appellants, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Michael J. Minerva, Public Defender, Louis G. Carres, Asst. Public Defender, for appellants.
Robert L. Shevin, Atty. Gen., Richard W. Prospect, Asst. Atty. Gen., for appellee.
A jury convicted Perry of robbery with a firearm as charged. He contends the trial court prejudiced his right to a fair trial by denying his request to call a witness as a court witness.
Perry's codefendant, Rushin, was also charged with robbery with a firearm. However, the jury found him guilty of only robbery. He contends the trial court erred in denying his motion for judgment of acquittal.
The State adduced the following evidence at trial. Hunter, the victim was the operator of a poolroom. He saw a short man and a tall man come in the back door of the poolroom. The short man came to the counter and asked for change for two half dollars. Hunter gave him the change and the man sat down in a chair in front of the counter facing the pool tables.
Hunter sat down behind the counter, facing in the opposite direction, to watch television. At that moment, there was no picture on television and he saw the reflection of a man standing behind the counter. Hunter turned and saw the tall man was holding a pistol pointed at him. As a result, Hunter relinquished Fourteen or Fifteen Dollars to the man with the gun.
The short man who asked for the change remained on the other side of the counter, facing the pool tables, with his back to the counter, and with one hand in his coat pocket. After the robbery this man walked out of the back door first, followed by the tall man who kept looking backward until he exited through the back door.
The tall man who held the gun was identified by Hunter and witness Jones as Perry. On cross examination, Jones denied that he had told Detective Kanard he could not identify the man who held the gun. The short man was identified by Hunter and witness Jones as Rushin.
At the conclusion of the State's case in chief, and prior to presentation of the defendants' case, Perry asked the court to call witness Kanard, a detective of the Jacksonville Sheriff's Office, as a court witness. The reasons for the request were: at the taking of his deposition, Kanard testified that witness Jones told him that he was unable to identify the man with the gun; on the day of the trial, after presentation of the State's case, Kanard appeared in response to a subpoena and informed defense counsel that he disclaimed his prior testimony and would deny that witness Jones told him he was unable to identify the man with the gun. The court announced that it would call Kanard as a court witness and allow counsel for both parties to cross examine him.
Kanard was then called out of the presence of the jury and a proffer of his testimony was made. At the proffer, Kanard testified that Jones told him he could identify the man with the gun; he admitted that at his deposition he testified that Jones told him he was unable to identify the man...
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