State v. Johnson, 43099

• Decision Date: 10 October 1973
• Docket Number: No. 43099,43099
• Citation: State v. Johnson, 284 So.2d 198 (Fla. 1973)
• Parties: STATE of Florida, Petitioner, v. Marvin Edwin JOHNSON, Respondent.
• Court: Florida Supreme Court

Page 198

284 So.2d 198

STATE of Florida, Petitioner, v. Marvin Edwin JOHNSON, Respondent.

No. 43099.

Supreme Court of Florida.

Oct. 10, 1973.

Robert L. Shevin, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., for petitioner.

Samuel S. Jacobson, Jacksonville, for respondent.

DEKLE, Justice.

Upon the State's petition, writ of certiorari issued to the First District Court of Appeal to review its opinion at 268 So.2d 170 relating to a rather interesting question regarding attempted use of police reports in evidence and for purposes of cross examination. ¹

Respondent-defendant was charged with breaking and entering a 7--11 Store with intent to commit a felony. As defendant's trial progressed, it became evidence that entrance to the store was gained through a 2 3 ft. hole forced in the roof. Photographs of the roof disclosed the presence of a white powdery building substance around the forced roof hole. The arresting officer testified that upon arriving at the 7--11 Store, he observed a man near the store, who ignored his order to 'halt' and who ran into a wooded area behind the 7--11 Store. The officer pursued this man and arrested him, the present defendant, in the wooded area hiding behind a log. The officer also said that defendant's jacket at the time of the arrest had a white powdery substance on it.

Defense counsel tried to cross-examine the arresting officer concerning what counsel contended were 'discrepancies' between the officer's court testimony and his initial police report of the incident which made no mention of the white powdery substance or the order to 'halt'. Counsel, with commendable foresight, had caused subpoena duces tecum to issue for the police report and sought to tender it into evidence and to cross examine from it. The trial judge ruled the police report not amenable to subpoena; that it was inadmissible; and could not be used for impeachment purposes.

The two points for impeachment become critical when considered with the overall evidence in the case, perhaps best highlighted in the prosecutor's summation that 'Marvin Johnson in his story explained everything except the stuff on his jacket.' The defense depended upon Johnson's explanation of his presence at the scene as being merely for the purpose of using the telephone to call his sister for a flashlight so that he could see to short circuit the starter on his car, which he had left with his ex-wife parked some two miles away; that as he arrived at the store he saw two men jump off the roof and run into the woods; that the officer arrived almost simultaneously and Johnson thought the officer was another burglar, became frightened and ran off into the woods. He expressly denied that there was an order to halt and as to the jacket said that it 'could have had some stains on it' but denied being on the roof. His ex-wife confirmed the car not starting and that the defendant went to use the telephone. In this posture, it becomes apparent that the key issues surrounding such a point of cleavage become vital and are possibly exculpatory of Johnson.

The jury found the defendant guilty and he appealed. The First District Court of Appeal reversed and granted a new trial. In its opinion, the district Court relied on Pitts v. State, 247 So.2d 53 (Fla. 1971), and its own State v. Pitts, 249 So.2d 47 (Fla.App.1st 1971), entered upon remand of Pitts, in holding the police report admissible for impeachment purposes under these circumstances.

Our order granting certiorari in this matter was based upon a direct conflict with Scott v. State, 207 So.2d 493 (Fla.App.2d 1968). In Scott, the defendant sought to have a police report produced for impeachment purposes and the 2nd District frustrated the effort by saying defendant is not entitled to the production of a police report for Any purpose. In so ruling, Scott necessarily intimates that police reports are not admissible for impeachment purposes.

We do not view our own Pitts v. State, 247 So.2d 53 (Fla. 1971), as precedent for the opinion here under review, inasmuch as our holding was solely upon the Attorney General's 'confession of error' in that cause. Upon remand of our opinion in 'Pitts', the 1st District elected to write its opinion on the mandate which is relied upon in the opinion Sub judice (State v. Pitts, 249 So.2d 47, 48 (Fla.App.1st 1971)). The 1st District's statements in Pitts and here are in conflict with Scott. In the opinion under review the First District cited its own 'District Pitts' as authority for its holding herein. In any event, Supreme Pitts did not by virtue of its remand upon limited grounds, specifically answer the question regarding the use of statements or reports for impeachment purposes in the circumstances; accordingly the question should be resolved here. ²

Admissibility of police reports, statements and documents depends upon the point of evidence sought to be impeached and the posture of the case. Normally, a mere negative use sought to be made of a portion of an initial police investigative report for impeachment should not be allowed; e.g., 'Why did you not include in your report the fact, as you testified here today, that the defendant was dressed in dark clothing? Why did you not state in your report that he was first observed near the public telephone?' and so on.

Absent some singular importance attaching to the point in question, which goes to a material and critical fact in serious contention in the trial, a negative basis is not the kind of use of a police report which justifies...