Smith v. State

• Decision Date: 04 September 1992
• Docket Number: No. 91-1287,91-1287
• Citation: 606 So.2d 641
• Parties: 17 Fla. L. Week. D2077 Jimmy Milton SMITH, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 641

606 So.2d 641

17 Fla. L. Week. D2077

Jimmy Milton SMITH, Appellant, v. STATE of Florida, Appellee.

No. 91-1287.

District Court of Appeal of Florida,

First

District.

Sept. 4, 1992.

Rehearing Denied Oct. 13, 1992.

Nancy A. Daniels, Public Defender, Nada M. Carey, Assistant Public Defender, for appellant.

Robert A. Butterworth, Atty. Gen., Marilyn McFadden, Asst. Atty. Gen., for appellee.

ERVIN, Judge.

Appellant, Jimmy Milton Smith, seeks review of his conviction for aggravated battery and his habitual violent felony offender sentence of 30 years. Appellant contends that the trial court erred in excluding proffered testimony relating to specific instances of violence by the victim, in refusing to admit a discovery deposition into evidence, and in sentencing appellant as a habitual violent felony offender pursuant to a statute that violated the single-subject rule provided in Article III, Section 6 of the Florida Constitution. We agree with appellant as to the first issue and reverse and remand for new trial. Because of our disposition of the first issue, we do not reach the sentencing error, but, for the reasons hereafter stated, discuss the asserted error raised in point II.

As a result of an altercation outside a bar between appellant and his son-in-law, Marshall Newton, Newton suffered a spinal cord injury that left him paralyzed from the neck down. Appellant asserted the defense of self-defense. Both sides presented eyewitness testimony at the trial. The state submitted evidence inferring that appellant was the aggressor and that he used a knife to stab Newton, while the defense, on the other hand, introduced evidence implicating Newton as the aggressor wielding the knife. In addition, appellant sought to introduce evidence relating to Newton's character for violence consisting of both reputation evidence and specific act evidence. Appellant proffered evidence both as to Newton's reputation for violence and as to specific instances of violence, which would disclose, among other things that Newton attacked him with a butcher knife in July 1988, threatened his son with a knife, stabbed his daughter in the neck with a knife, threatened Doug Katt with a shotgun, told Joey Porter that if appellant did not "butt out" of his relationship with appellant's daughter, he would do something to appellant, and pulled a knife on Bobby Claghorn in May 1989, at the same bar where the fight between appellant and Newton occurred in October 1990. Appellant clearly testified during the proffer that all of the above incidents were known to him before the alteration. Although the trial court allowed the reputation evidence, it excluded the evidence relating to specific instances of violence.

We cannot agree that the trial court's denial of such evidence was consistent with established case law. In Florida, evidence of the dangerous character of the victim is admissible to show, or as tending to show, that the defendant acted in self-defense. Garner v. State, 28 Fla. 113, 136, 9 So. 835, 841 (1891). Thus, when self-defense is raised, evidence of the victim's reputation is admissible to disclose his or her propensity for violence and the likelihood that the victim was the aggressor, while evidence of prior specific acts of violence by the victim is admissible to reveal the reasonableness of the defendant's apprehension at the time of the incident. Quintana v. State, 452 So.2d 98, 100 (Fla. 1st DCA 1984) (reversing first-degree murder conviction, because defendant erroneously precluded from offering reputation and specific-act evidence relative to self-defense claim). See also Hager v. State, 439 So.2d 996, 997 (Fla. 4th DCA 1983); Banks v. State, 351 So.2d 1071, 1072 (Fla. 4th DCA), cert. denied, 354 So.2d 986 (Fla.1977); Williams v. State, 252 So.2d 243 (Fla. 4th DCA), cert. denied, 255 So.2d 682 (Fla.1971); Secs. 90.404 & .405, Fla.Stat. (Supp.1990 & 1989); Charles W. Ehrhardt, Florida Evidence Sec. 404.6 (1992 ed.). If reputation evidence is offered to show the victim's conduct, the defendant's prior knowledge of the victim's reputation is not necessary. Banks, 351 So.2d at 1072. If, however, character evidence is offered to prove the reasonableness of the defendant's apprehension, prior knowledge of the specific-act violence is necessary. Id.

Before a defendant may offer either type of character evidence, he or she must lay a proper predicate demonstrating some overt act by the victim at or about the time of the incident which reasonably indicated to the defendant a need for action in self-defense. Quintana, 452 So.2d at 100; Williams, 252 So.2d at 247. Consequently, if there is the slightest evidence of an overt act by the victim which may be reasonably regarded as placing the defendant in imminent danger, all doubts as to the admission of self-defense evidence must be resolved in favor of the accused. Quintana, 452 So.2d at 101; Warren v. State, 577 So.2d 682, 684 (Fla. 1st DCA 1991) (reversing second degree murder conviction because defendant was erroneously precluded from introducing evidence of deceased's character that was relevant to a self-defense theory).

In the instant case, appellant, as stated, claimed self-defense and laid a proper predicate for the admission of character evidence in that his evidence disclosed that Newton approached him in a threatening manner, that Newton pushed against him, and that Newton held a knife. Warren; Quintana. Under the circumstances, appellant was properly allowed to introduce evidence of Newton's reputation for violence under Section 90.405(1), Florida Statutes (1989), to establish that Newton was the aggressor.

Appellant was erroneously prohibited, however, from introducing evidence of specific acts of violence by Newton for the reason that appellant's apprehension of bodily harm or death threatened by Newton was an essential element of his defense. Therefore, appellant should have been permitted to testify under Section 90.405(2), Florida Statutes (1989), regarding specific instances of violent conduct by Newton that were known or communicated to him before the altercation. Case law clearly establishes that a defendant need not be present during the occurrence of the specific acts so long as he or she has heard of them prior to the time of the incident. Smith v. State, 410 So.2d 579 (Fla. 4th DCA) (defendant erroneously precluded from introducing evidence of past specific violent acts by the deceased where it was shown that defendant, although not present during such occurrences, knew of them through others prior to the incident), review denied, 419 So.2d 1200 (Fla.1982). This result does not offend the hearsay rule, because the evidence is not offered to prove the truth of the matter asserted, but is offered to show only that the defendant believed those incidents had occurred. Id. at 581. Under the circumstances, the trial court erred in excluding the proffered evidence relating to specific instances of violent conduct by Newton that had occurred in appellant's presence or had been communicated to him prior to the stabbing. ¹

Considering the nature of the evidence in this case, especially the conflicts between the theories offered by the two sides and the fact that the erroneously excluded evidence went to appellant's only defense, the error must be considered harmful. In so saying, we note that the state did not argue that the error was harmless, which is its burden. Ciccarelli v. State, 531 So.2d 129, 131 (Fla.1988); Brooks v. State, 555 So.2d 929, 931 (Fla. 3d DCA 1990).

Although our disposition of point I, requiring reversal and remand of the case for new trial, makes it unnecessary for us to address point II, relating to the propriety of the trial court's refusal to admit into evidence the deposition testimony of an absent witness, we consider that discussion of this issue would be helpful to the parties on remand. During the trial below, appellant attempted to introduce into evidence the deposition of Bradford Blackwell, in which he testified as to certain threatening statements made by Newton about appellant approximately two hours before the occurrence of the...