Rowley v. State
| Citation | 939 So.2d 298 |
| Decision Date | 18 October 2006 |
| Docket Number | No. 4D05-1869.,4D05-1869. |
| Parties | Clara L. ROWLEY, Appellant, v. STATE of Florida, Appellee. |
| Court | Court of Appeal of Florida (US) |
Charles J. Crist, Jr., Attorney General, Tallahassee, and Diane F. Medley, Assistant Attorney General, West Palm Beach, for appellee.
Clara Rowley appeals her conviction for fleeing and eluding a police officer, a third degree felony, contrary to section 316.1935(2), Florida Statutes (2004). We affirm the conviction.
She argues that the trial court erroneously restricted her cross-examination of a police officer on a matter that went to his bias. However, the defense failed to proffer what the excluded evidence would have revealed or how it was relevant to this case. The absence of such a proffer precludes our review of the restriction of cross-examination.
Mrs. Rowley is a 71-year-old grandmother who has been married for 55 years. She has five children, fifteen grandchildren and three great-grandchildren. After attending mass and stopping for pancakes at Wal-Mart, Mrs. Rowley's car was stopped by Officer Robert Kyzer of the Sebastian Police Department for a broken taillight, an infraction for which Kyzer intended to give Mrs. Rowley a warning. This innocuous traffic stop escalated into something more and ended with Mrs. Rowley's arrest, at another location, following a low-speed chase. Mrs. Rowley's defense at trial was that the conduct of police officers at the traffic stop gave rise to the defense of necessity, which justified her leaving the scene of the traffic stop contrary to the direction of the officers, and driving down the road with two police cars in pursuit.
During a proffer, defense counsel questioned Officer Kyzer about something called the "Pomeroy matter" as follows:
As Mrs. Rowley argues on appeal, case law recognizes that exploration of bias in a criminal case allows for cross-examination into an "officer's use of excessive force in other cases," "[w]here there is an issue of whether or not excessive force was used by a law enforcement officer" in the case at hand. Michael v. State, 884 So.2d 83, 85 (Fla. 2d DCA 2004); see also Hinojosa v. State, 857 So.2d 308, 310 (Fla. 2d DCA 2003); Mendez v. State, 412 So.2d 965, 966 (Fla. 2d DCA 1982); Henry v State, 688 So.2d 963, 965-66 (Fla. 1st DCA 1997); Ivester v. State, 398 So.2d 926 (Fla. 1st DCA 1981). The existence of other complaints about an officer provide a motive to color testimony "to avoid another complaint which could [lead] to disciplinary action" or another lawsuit. Michael, 884 So.2d at 85. Thus, as the second district wrote in Mendez, evidence of an officer's prior suspensions for excessive force "would have provided the jury with a highly plausible motive for [the officer's] misrepresentation of the true facts surrounding the shooting incident" in that case. 412 So.2d at 966.
Defense counsel's proffer failed to demonstrate that cross-examination was appropriate under the Michael, Henry, and Mendez line of cases. The proffer established only that the Sebastian Police Department had a "matter" with Mr. Pomeroy and that Pomeroy died. The proffer failed to specify how, if at all,2 Officer Kyzer was involved in the "Pomeroy matter," so that the trial court was alerted to the Michael, Henry, and Mendez basis for cross-examination. Neither by his questions to Kyzer nor by an offer of proof did defense counsel establish facts that would have justified the proposed cross-examination. The absence of an adequate proffer precludes our review of the alleged error. See § 90.104(1)(b), Fla. Stat. (2004); A. McD. v. State, 422 So.2d 336, 337-38 (Fla. 3d DCA 1982).
Even assuming that the trial judge erroneously restricted cross-examination, we find such error in this case to be harmless.
When rejecting the police officers' version of the facts and viewing Mrs. Rowley's testimony in the most favorable light, the facts do not support the defense of necessity. Mrs. Rowley testified that: (1) after stopping her car for having a broken taillight, the officer took a long time to write her a warning; (2) during the process of writing the warning, the officer returned to the car and asked her the color of her eyes; (3) when she got out of her car, two officers, "yelling as loudly as they could" and "bellowing in [her] face," told her to get back in the car; (4) a police dog was barking inside the patrol car, which had its emergency lights flashing; (5) one officer told Mrs. Rowley, "[w]e have had just about enough of you;" (6) it was night; (7) once she informed the officers that she was "terribly afraid and I want to go home, I'm going home," the officers Stating that she was, "very aware of driving very carefully," Mrs. Rowley then started her car and left the scene of the stop, leading several police cars, with sirens and lights flashing, "on a low speed chase."
There was no dispute at trial that Mrs. Rowley violated section 316.1935(2); she willfully fled or attempted to elude a law enforcement officer who was "in a jurisdictionally marked vehicle with sirens and lights activated." Anderson v. State, 780 So.2d 1012, 1014 (Fla. 4th DCA 2001). The only defense to the charge was necessity, also called duress, compulsion, or coercion. See Mickel v. State, 929 So.2d 1192, 1196 n. 2 (Fla. 4th DCA 2006). The trial court charged the jury on this defense. Mrs. Rowley's version of the facts do not rise to the level required to make out the defense. See Driggers v. State, 917 So.2d 329, 331 (Fla. 5th DCA 2005); Fla. Std. Jury Instr. (Crim.) 3.6(k).
Affirmed.
Late one summer night, a 71 year-old woman was stopped by an officer with the canine3 unit of the Sebastian Police Department as a matter of courtesy to advise her that the license tag light was out. That "courtesy" ended nearly an hour later with the woman being pulled from her auto, arrested, handcuffed and charged with the serious felony of fleeing and eluding an officer.
Just how did this seemingly improbable episode evolve? Is the officer's version of events reliable to prove guilt beyond a reasonable doubt? How might his direct testimony hold up under a full cross examination as to possible biases, prejudices, or ulterior motives? Well, the world will never know because when the cross examination of the officer at trial finally reached the subject of a reason to color, exaggerate or even misrepresent events, it was cut off before it could begin. The exclusion of this standard line of cross examination is the reason for this appeal.
Although the officer first said he deemed it a courtesy stop, he testified that he decided to issue the lady a written warning. But when she began to leave her vehicle to inspect her tag light, the officer physically restrained her from doing so, explaining that he "laid hands on her" to carry out police policy of keeping people in their vehicles "for their own safety and protection." Tellingly, he did not suggest what she needed such protection from. Meanwhile the officer's dog, Gunner, incessantly barked at defendant from his vantage in the police vehicle immediately behind.
After 15-25 minutes of being detained inside her auto while he prepared a written warning, the lady declined the officer's invitation to sign it. That refusal led the officer again to change his mind, this time to convert the written warning into a formal citation of a civil traffic infraction. Defendant then drove off, allegedly in spite of the officer's claimed warning not to leave. She was followed by the canine officer and (now) a backup police unit, during which she did not speed or violate any traffic laws. After 5-10 minutes, the convoy of officers ultimately pulled next to her in a parking lot, took her from her vehicle, arrested and handcuffed her, and "assisted her in sitting on the ground." Formal felony charges were later filed. Trial came in due course.
At trial, defense counsel sought to show that the canine officer had unreasonably detained her at night by the side of the road for an excessive period of time; that the continued barking by his police dog had frightened her; that the officer was "belligerent"; that he "manhandled" her; and that he had manufactured her arrest on felony charges to protect himself and the Sebastian Police Department from civil liability resulting from his handling of the incident. The excluded line of cross examination concerned something called the Pomeroy matter, a prior incident involving the same officer. The Pomeroy incident is said to have resulted in the death of the detainee from excessive force and a consequent civil suit for damages against the officer and the City. In sustaining the State's objection to any questions on the subject, the Judge explained:
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