Pitts v. State

• Decision Date: 02 July 1975
• Docket Number: No. 74--588,74--588
• Citation: 315 So.2d 531
• Court: Florida District Court of Appeals
• Parties: William J. PITTS, Appellant, v. STATE of Florida, Appellee.

Page 531

315 So.2d 531

William J. PITTS, Appellant, v. STATE of Florida, Appellee.

No. 74--588.

District Court of Appeal of Florida, Second District.

July 2, 1975.

James A. Gardner, Public Defender, Sarasota, and Patrick R. Cunningham, Asst. Public Defender, Bradenton, for appellant.

Robert L. Shevin, Atty. Gen., Tallahassee, and Mary Jo M. Gallay, Asst. Atty. Gen., Tampa, for appellee.

GRIMES, Judge.

This is an appeal from a conviction of robbery.

At the trial which took place on January 9, 1974, Thomas Zimmer admitted robbing the S & S Cafeteria in Tampa at about 6:30 on the night of June 30, 1973. According to Zimmer, the robbery was planned by the appellant who gave him a loaded revolver and dropped him off near the cafeteria. Appellant was to wait for him and pick him up after the robbery had taken place. However, when Zimmer got back to the automobile, appellant was not in the vehicle. Zimmer said he left the gun and money in the car and moved on. Zimmer was arrested shortly thereafter by a pursuing off-duty policeman and a cafeteria employee. As he was being taken away, Zimmer said he observed the appellant driving off in his red Falcon automobile.

The cashier at the cafeteria identified Zimmer as the man who held her up but said the robbery occurred at approximately 7:30 p.m. The cafeteria employee who helped catch Zimmer did not have him in sight at all times but at one point did notice that he had his hands in a blue Volkswagen. Zimmer's wife testified that appellant admitted his involvement in the robbery to her.

The defense put on three alibi witnesses who testified that they were with appellant at his house during the entire evening of the robbery. Two of them said they arrived between 6:00 p.m. and 7:00 p.m. and the third said he arrived between 7:00 p.m. and 7:30 p.m. The appellant denied any part in the robbery. He said that he didn't leave his house the entire evening the robbery occurred.

During direct examination, Edgar Frock, one of the alibi witnesses, stated that he had known Zimmer well when they were both living in Akron, Ohio, from November 1971 until the summer of 1972. He said he knew Zimmer's reputation for truth and veracity in the community in Akron, but, upon objection, was not permitted to state the nature of that reputation. The objection was sustained on the basis that it was remote because it involved Zimmer's reputation in another state.

There is no doubt that the credibility of a witness can be attacked by proof that his reputation for truth and veracity in the community is bad. Taylor v. State 1939, 139 Fla. 542, 190 So. 691; Nelson v. State, 1930, 99 Fla. 1032, 128 So. 1. See also Fine v. State, 1915, 70 Fla. 412, 70 So. 379; Garner v. State, 1891, 28 Fla. 113, 9 So. 835; Rafuse v. State, Fla.App.1st, 1968, 215 So.2d 71.

With respect to the locale of the person's reputation, Wigmore on Evidence § 930 states:

'. . . From the point of view of relevancy, place or locality has no bearing on the present principle. The actual qualities of the man himself must be the same in whatever place he is . . ..'

Likewise, Jones on Evidence § 26:17 says:

'. . . If the witness to be discredited has changed his domicile, his reputation at both places may be shown within reasonable limits of time. Reputation at a prior place of residence is not excluded merely because another later domicile has been acquired and a reputation there established.

'Where it appears that the witness had removed from a community some years before the trial, the impeaching testimony of his...