Robertson v. State

• Decision Date: 28 March 2001
• Docket Number: No. 3D98-2383.,3D98-2383.
• Citation: 780 So.2d 106
• Parties: Floyd Thomas ROBERTSON, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

780 So.2d 106

Floyd Thomas ROBERTSON, Appellant, v. The STATE of Florida, Appellee.

No. 3D98-2383.

District Court of Appeal of Florida, Third District.

March 28, 2001.

Bennett H. Brummer, Public Defender, and Manuel Alvarez, Assistant Public Defender, for appellant.

Robert A. Butterworth, Attorney General, and Margaret A. Brenan, Assistant Attorney General, for appellee.

Before SCHWARTZ, C.J., and JORGENSON, COPE, LEVY, GERSTEN, GODERICH, GREEN, FLETCHER, SHEVIN, SORONDO, and RAMIREZ, JJ.

OPINION ON REHEARING EN BANC

GERSTEN, Judge.

Floyd Thomas Robertson ("defendant") appeals his conviction and sentence for second degree murder in the shooting death of his girlfriend. The defendant claims the trial court erred in allowing his ex-wife to testify concerning the defendant's previous threat to the ex-wife with a gun. Because the defendant alleged the shooting was accidental, and that he had never used a gun in a threatening manner toward anyone close to him, we conclude this evidence was properly admitted for both impeachment purposes, and relevancy under Section 90.404(2)(a), Florida Statutes (1997), to show the defendant's "motive, intent, and absence of mistake." We affirm.

On September 16, 1996, victim Maria Nelson ("Maria") confided to a co-worker that she was having problems with her live-in boyfriend, the defendant. Maria was upset and nervous, and told her friend that she was going to ask the defendant to move out of her apartment that night.

Approximately three hours later, the fire rescue department received a call from the defendant, who stated that he had shot "someone." When the police arrived, the defendant led them into a bedroom where a gun was laying on the floor with the slide locked.

Victim Maria Nelson was lying on the bed semi-conscious. The police detective tore off her shirt to see if he could provide medical help. Although the defendant had a medical background as a paramedic, there was no evidence that the defendant attempted any kind of aid on Maria. Maria was airlifted to the hospital where she eventually died.

The defendant was charged with second degree murder. At trial, his theory of defense was that the gun accidentally misfired while he was taking it out of the closet to clean it.¹ The State's theory of the case was that the defendant shot Maria during a domestic argument and that the shooting was not accidental. Since the defendant was the only witness to the shooting, the critical issue for the jury to determine was whether the defendant's story was credible.

Several of Maria's neighbors testified they heard loud thuds coming from the apartment on the evening of the shooting, as though someone were being thrown against the wall. At one point, the defendant was observed going out onto the balcony and flailing his arms around as if involved in a heated discussion. The defendant then went inside the apartment and Maria came out onto the balcony. A few minutes after Maria went back into the apartment, the neighbors heard a gunshot.

The arresting detective who took the defendant's statement stated that the defendant's version of what occurred varied. At the police station, the defendant stated he and Maria had an argument that evening, but that he had never gotten physical with Maria. The defendant explained he was taking out his semi-automatic .40 caliber Ruger handgun to clean it, when his finger slipped on the trigger and he shot Maria. Later, the defendant testified that he was taking out the gun because he wanted Maria to see it. The defendant further testified his relationship with Maria was an excellent one and that they had not been fighting on the day of the shooting.

The defendant's friend, Steve Angene, testified that the defendant had called him after the shooting. In that phone call, the defendant stated he had been having a dispute with Maria, and that Maria had followed him into the bedroom. The defendant asked Steve not to tell the police about his fight with Maria.

In contrast to Steve's testimony, the defendant testified at trial that he had a happy relationship with Maria. He also testified that the gun which killed Maria was accidentally stored in a single-action cocked manner. He further stated that he was not very familiar with the gun, and that the gun accidentally fired and hit Maria.

On cross-examination, the State asked the defendant about his knowledge and training with various weapons. Without objection, the defendant was asked about his military experience, and his previous use of such weapons as M-16 rifles, handguns, M60's, sporting guns, and a Russian rifle. The defense only objected when the State asked the defendant if he had ever purchased an AK-47 rifle. The State then asked if the defendant ever threatened anyone with an assault rifle. When the defendant responded he had not, the State asked if the defendant threatened anyone close to him with an AK-47. The defendant responded, "I have never threatened anybody close to me with a weapon, anybody, period, with a weapon, sir." The defendant's ex-wife was later called on rebuttal and testified the defendant had threatened her with a gun during a domestic dispute. Defense counsel had taken the ex-wife's deposition prior to trial and was well aware of the prior AK-47 rifle incident.

At the conclusion of its deliberations, the jury returned a verdict finding the defendant guilty of second degree murder. The defendant appeals his conviction and sentence to life imprisonment, claiming the trial court erred in allowing the testimony of the ex-wife regarding the prior incident.

Florida Statute Section 90.608(5), provides that once a defendant takes the stand and testifies, he or she places credibility at issue and prosecutors are allowed to impeach that credibility with "proof by other witnesses that material facts are not as testified to by the witness being impeached." See § 90.608(5), Fla. Stat. (1997); Charles W. Ehrhardt, Florida Evidence § 608.1 at 385 (1997 ed.).

Our courts have long recognized that the truth-seeking purpose of the adversary system is promoted by cross-examination which appropriately challenges the witness's credibility through eliciting testimony favorable to the cross-examining party. See Chandler v. State, 702 So.2d 186 (Fla.1997)

; Shere v. State, 579 So.2d 86, 90 (Fla.1991). Specifically, with regard to impeachment cross-examination, prosecutors are to be allowed "wide leeway" in order to prevent defendants from being able to "frustrate the truth-seeking function of a trial by presenting tailored defenses insulated from effective challenge." See Lebowitz v. State, 343 So.2d 666, 667 (Fla. 3d DCA 1977) (quoting Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91, 97 n. 7 (1976). See also, Geralds v. State, 674 So.2d 96 (Fla.1996) (cross examination not confined to identical details testified to in chief; extends to all matters that may supplement, contradict, rebut, or make clearer facts testified to in chief)).

Applying these principles to the facts of this case, it is clear the defendant placed his credibility at issue by taking the stand. After giving oath and presenting testimony to the jury, the defendant was then subject to cross-examination and potential impeachment like any witness in any case.²See Ivey v. State, 132 Fla. 36, 180 So. 368 (Fla.1938); C.M. v. State, 698 So.2d 1306 (Fla. 4th DCA 1997); Ashcraft v. State, 465 So.2d 1374 (Fla. 2d DCA 1985).

The defendant testified he never threatened anyone with a gun. Clearly this statement was intended to buttress his theory of defense and his contention that he shot Maria by mistake while "cleaning" the gun. Having testified that he had never threatened anyone with a gun, the defendant opened the door to questioning about the prior incident where he had threatened his ex-wife with a gun. See Fletcher v. State, 619 So.2d 333 (Fla. 1st DCA),

review denied, 629 So.2d 132 (Fla. 1993); Hernandez v. State, 569 So.2d 857 (Fla. 2d DCA 1990). With the door open, it was then permissible for the State to impeach the defendant's statements and to show that he was not being truthful on the stand. See Allred v. State, 642 So.2d 650 (Fla. 1st DCA 1994); Lusk v. State, 531 So.2d 1377 (Fla. 2d DCA 1988). See also Howard v. State, 228 Ga.App. 775, 492 S.E.2d 683 (1997) (evidence defendant shot prior girlfriend 12 years earlier held admissible to impeach testimony regarding gun use).

We also find this evidence admissible as relevant under Section 90.404(2)(a), Florida Statutes (1997), which provides:

"Similar fact evidence of other crimes, wrongs, or acts is admissible when relevant to prove a material fact in issue, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, but it is inadmissible when the evidence is relevant solely to prove bad character or propensity."

It is well established that evidence is admissible if it is relevant to prove a material fact at issue, and if it is not precluded by a specific rule of exclusion. See § 90.402(2)(a), Fla. Stat. (1997); Heiney v. State, 447 So.2d 210 (Fla.), cert. denied, 469 U.S. 920, 105 S.Ct. 303, 83 L.Ed.2d 237 (1984); Williams v. State, 110 So.2d 654 (Fla.), cert. denied, 361 U.S. 847, 80 .S.Ct. 102, 4 L.Ed.2d 86 (1959).

The test for relevancy is whether such evidence "casts light upon the character of the act under investigation by showing motive, intent, absence of mistake, common scheme, identity or a system or general pattern of criminality so that the evidence of the prior offenses would have a relevant or a material bearing on some essential aspect of the offense being tried." Williams v. State, 110 So.2d at 662.

Here, the critical issue at trial was whether the defendant accidentally shot Maria. Since there were no eyewitnesses to the shooting, the credibility of the defendant and his story, were crucial to the outcome of the case.³ The evidence that the defendant had previously...