Porter v. State, 77-2615

• Decision Date: 01 July 1980
• Docket Number: No. 77-2615,77-2615
• Citation: 386 So.2d 1209
• Parties: Jeff Lee PORTER, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1209

386 So.2d 1209

Jeff Lee PORTER, Appellant, v. The STATE of Florida, Appellee.

No. 77-2615.

District Court of Appeal of Florida, Third District.

July 1, 1980.

Rehearing Denied Sept. 4, 1980.

Bennett H. Brummer, Public Defender and Elliot H. Scherker, and Karen M. Gottlieb, Asst. Public Defenders, for appellant.

Jim Smith, Atty. Gen., and Susan Minor, Asst. Atty. Gen., for appellee.

Before SCHWARTZ and DANIEL S. PEARSON, JJ., and PEARSON, TILLMAN (Ret.), Associate Judge.

DANIEL S. PEARSON, Judge.

This year is the triennial of Porter v. State, ¹ and we reluctantly commemorate it by again reversing Porter's conviction for sale and possession of heroin.

We will not prolong the observance of this anniversary. Following our earlier reversal, Porter was retried for selling (and in the process, possessing) thirty dollars worth of heroin to an undercover police officer, Sandra Tavanis.

The State's case was based primarily on the testimony of Tavanis. Nobody was in the immediate presence of Tavanis (seated in her car in a bar parking lot) and Porter (standing next to Tavanis' car) during the several minutes of negotiations immediately preceding the sale and when the money and contraband were exchanged. Several police officers in another car about seventy yards away had Tavanis under surveillance. The transaction occurred in the early evening on November 14, 1975. Since Tavanis was to continue her undercover work in the same general locale, Porter's arrest was delayed until January 8, 1976.

Porter was the only witness for the defense. During his brief direct examination, ² the following occurred:

"Q. . . . Did you ever sell heroin to Sandra Tavanis?

"MR. GINSBURG (the prosecutor): Objection; leading.

"THE COURT: Sustained.

"Q. Did you ever make a sale of heroin . . .

"MR. GINSBURG: Objection.

"THE COURT: The objection is sustained as to the last question."

The abbreviated definition of a leading question as one which may be answered yes or no, see, e. g., 3 Wigmore, Evidence § 772 (Chadbourn rev.1970), is misleading. The real meaning of this definition is that a question which suggests only the answer yes is leading; a question which suggests only the answer no is leading; but a question which may be answered either yes or no, and suggests neither answer as the correct one, is not leading.

"Among other definitions, a leading question has been defined as one which may be answered 'yes' or 'no.' This, however, is not the most usual definition, or the one most exactly fixing the meaning of the term. The proper signification of the expression is a suggestive question, one which suggests or puts the desired answer into the mouth of the witness. . . . We agree with the Supreme Court of Michigan, that a question is not necessarily objectionable as leading because it can be answered 'yes' or 'no,' and that a leading question is one that points out the desired answer, and not merely one that calls for a simple affirmative or negative." Coogler v. Rhodes, 38 Fla. 240, 244, 21 So. 109, 110 (1897).

See also United States v. Durham, 319 F.2d 590 (4th Cir. 1963) ("The essential test of a leading question is whether it so suggests to the witness the specific tenor of the reply desired by counsel that such a reply is likely to be given irrespective of an actual memory."); Florida Motor Lines Corporation v. Barry, 158 Fla. 123, 27 So.2d 753 (1946). ³

In a case closely on point, ⁴ the New Jersey Supreme Court determined that the direct examination question, "At any time did you intentionally strike anybody with this ax?," put to a defendant accused of atrocious assault and battery, was not leading. The court said:

"The objection that the question was 'leading' was unsound. In a sense every question is 'leading.' If interrogation did not lead, a trial would get nowhere. Indeed one vice of a question such as, 'What is your position in this case?,' is that is does not lead enough, and thus would deny the opposing party an opportunity to guard against the rankest kind of improper proof. A question must invite the witness's attention to something. No formula can be stated with confidence that it will embrace all situations. But it may be said that ordinarily a question is not improperly leading unless it suggests what the answer should be or contains facts which in the circumstances can and should originate with the witness. See generally McCormick, Evidence § 6 (1954); 3 Wigmore, Evidence §§ 769-72 (3d ed. 1940). The question whether Abbott intentionally struck any of the Scaranos with the ax was perfectly proper; we do not see how else it could be phrased. Cf. State v. Len, 108 N.J.L. 439, 440, 158 A. 749 (Sup.Ct.1932)." State v. Abbott, 36 N.J. 63, 174 A.2d 881, 889 (1961).

In the present case the State argues that even if the questions were not leading, ⁵ the error of sustaining its objections is harmless. It points to the fact that defense counsel later elicited from Porter testimony that on the date in question he did not meet Sandy Tavanis.

Were that the end of the matter, we might agree with the State that the defendant was not sufficiently prejudiced to warrant reversal. But the matter did not end there.

In closing argument the prosecutor remarked:

"Consider Mr. Porter's own testimony and the questions his lawyer asked him. The only thing that Mr. Porter said was, 'I didn't meet Sandra Tavanis at the bar on November 14th.'

"Well, certainly he wasn't introduced to her as Sandra Tavanis. Certainly, he wasn't introduced to her as a police officer.

"He never denied making any sale, and he never denied not being at the bar." (Tr. 226-227).

"This man has not denied selling heroin on that day.

"MR. SANDBERG (defense counsel): Objection, your Honor. This is

"THE COURT: Sustained.

"MR. GINSBURG (the prosecutor): The only testimony you heard was that on November 14th, he did not meet Sandra Tavanis. . . . " (Tr. 241-242).

It is apparent, then, that the State's position was that the defendant's denial of meeting Tavanis on November 14, 1975, did not bring within its ambit a denial of selling heroin to her. Having taken that position, the State can hardly argue here that precluding the defendant from denying the sale was harmless in light of his denial of the meeting.

The second ground upon which we reverse Porter's conviction is that the trial court improperly limited his cross-examination of Tavanis.

The theory of the defense was that it was not the defendant who sold heroin to Tavanis. Obviously, the officer's ability to identify the defendant was critical to the defense. Tavanis had never seen Porter before the night in question. She admitted that due to the limited length of time she had to observe the defendant, she took special note of the area around his eyes and cheekbones. Her view of the defendant was limited to a half to three-quarter profile, since he did not directly face her. Her written description of the defendant failed to disclose prominent scars on the side and middle of the defendant's forehead which he had had for many years.

To test Tavanis' memory, ability to observe, and overall credibility, the defense inquired:

"Q. How many drug transactions were you involved in on that day?

"A. That was the only one that I had that day.

"Q. How many drug transactions were you involved in within that general period of time, within three weeks either way of that case?"

The prosecutor's objection to the last question was sustained by the trial court. ⁶

The right of full cross-examination is absolute, and the denial of that right is harmful and fatal error. Coxwell v. State, 361 So.2d 148 (Fla.1978); Coco v. State, 62 So.2d 892 (Fla.1953). Cross-examination is the principal means by which a witness' perceptions and memory are tested, Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), and its vital importance is even clearer when the cross-examination is of the key prosecution witness. Stripling v. State, 349 So.2d 187 (Fla. 3d DCA 1977); Truman v. Wainwright, 514 F.2d 150 (5th Cir. 1975). Where, as in the present case, positive identification is made under circumstances of questionable reliability, the need for full cross-examination is further heightened.

"The necessity for full cross-examination is particularly acute when its purpose is to demonstrate the lack of credibility of an identification by attempting to determine whether or not the witness had recollection of specific characteristics of the defendant. It is axiomatic that the identification of a suspect at a much later time by witnesses who have seen the actual criminal on only a few occasions and then only for short periods is fraught with dangers because of the fallibility and suggestibility of human memory." United States v. Fitzpatrick, 437 F.2d 19, 23 (2d Cir. 1970).

The cross-examination upon which the defendant had embarked and which was thwarted by the trial court's ruling was one designed to elicit that Tavanis had, in the weeks surrounding the incident, made numerous undercover contacts and purchases of assorted contraband in situations similar to the present case; and that during the course of these activities she saw many persons for the first time and for limited periods of time. Such an examination, if permitted, could have effectively tested, and perhaps undermined, her ability to remember Porter as the person she dealt with on November 14, 1975, and from whom, as she stated, she bought a quantity...