Vazquez v. State

• Decision Date: 02 July 1997
• Docket Number: No. 96-0072,96-0072
• Citation: 700 So.2d 5
• Parties: 22 Fla. L. Weekly D1630 Raul VAZQUEZ, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 5

700 So.2d 5

22 Fla. L. Weekly D1630

Raul VAZQUEZ, Appellant, v. STATE of Florida, Appellee.

No. 96-0072.

District Court of Appeal of Florida Fourth District.

July 2, 1997

Order Certifying Question on

Denial of Rehearing Sept. 24, 1997.

Richard L. Jorandby, Public Defender, and Steven H. Malone, Assistant Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Diana K. Bock, Assistant Attorney General, Tampa, for appellee.

FARMER, Judge.

In this case where entrapment was a defense, the trial judge refused to reopen cross examination of a detective for the purpose of admitting additional parts of tape recordings relating to dealings with a confidential informant. Defendant also argues that the standard jury instruction on entrapment failed, under the facts of this case, to give a fully accurate instruction on the current state of the law. We reverse.

Defendant was charged with trafficking in cocaine after he sold the drug to an informant. A number of conversations leading up to this transaction were recorded and adduced as evidence at trial. Defendant claimed that, to persuade him to sell the informant cocaine, the informant offered to give him a substantial amount of marijuana for free. He also alleged, and evidence was adduced at trial to support the contention, that he had not been in the business of selling drugs for a substantial number of years before being approached by the informant.

I. Re-Opening Evidence for Cross-Examination

Defendant argues that the trial judge erred in refusing to allow him to reopen cross-examination of the lead detective for the purpose of introducing into evidence additional tape recordings of the conversations between the contact and the informant. The state argues that defendant could have called the detective as his own witness, and thereby offered the tapes into evidence. He did not do so because he did not wish to assert a defense and thus lose the right to open and close final argument. See Fla. R.Crim. P. 3.250.

In Louisy v. State, 667 So.2d 972 (Fla. 4th DCA 1996), we reversed a trial court's refusal to reopen the defense to present crucial evidence, saying that:

"Although the decision to allow a case to be reopened involves sound judicial discretion not usually interfered with on the appellate level [c.o.] a denial will be reversed where the request is timely made and the jury will be deprived of evidence which might have had a significant impact upon the issues to be resolved. Delgado v. State, 573 So.2d 83, 86 (Fla. 2d DCA 1990)...."

667 So.2d at 974. The rationale behind Louisy and other such cases is that in some circumstances the refusal to re-open a case is "to enforce a rule of procedure almost to the point of a denial of justice." Steffanos v. State, 80 Fla. 309, 86 So. 204, 205 (1920); see also State v. Ellis, 491 So.2d 1296, 1297 (Fla. 3d DCA 1986). The state argues in effect that there is no denial of justice where the defendant could so easily have adduced the same evidence during his own defense.

In Hahn v. State, 58 So.2d 188 (Fla.1952), where the charge was first degree murder and defendant claimed self-defense, the state called a witness who testified that the victim had not threatened defendant just before the killing. Although defendant cross-examined the witness, he failed to lay the necessary foundation for impeachment with a hearsay statement he had intended to introduce through another witness. When counsel later realized the error, he unsuccessfully sought to recall the state's witness to lay the proper foundation. After the court offered to allow defense counsel to call the witness as his own witness, counsel declined the offer. The supreme court held that the trial judge had abused his discretion in refusing to allow defendant to recall the witness, saying that:

"Rules of practice and their employment in the conduct of trials are not inflexible. Their strict or technical enforcement cannot straight jacket the justice of the cause. Primarily, they are formulated and employed so that the Court may regulate and keep within legal bounds the general conduct of the trial. This Court has always recognized that a trial Court has wide latitude in regulating the conduct of trials in order that the administration of justice be speedily and fairly achieved in an orderly, dignified manner and befitting the gravity of the business in hand. In this function the trial Judge exercises the sound discretion with which he is vested. This discretion may be invoked and its exercise reasonably required for many reasons. It may be invoked when counsel in the stress of trial overlooks or fails to offer proof of a material matter or otherwise fails in his duty to his client in the conduct of his case. In a grave case, as here, where defendant's life was in jeopardy his ineptitude alone is enough."

58 So.2d at 191. Aside from the fact that the charges here do not involve a capital offense, it is difficult to find any meaningful difference with Hahn.

The distinction between cross examination of a state witness and calling the same person as a defense witness to lay a predicate for a defensive matter was also the basis for the decision in Coco v. State, 62 So.2d 892 (Fla.1953). There, defendant was also charged with first degree murder, but the jury ultimately convicted him of the lesser included offense of second degree murder. The state had called a police officer to authenticate two fingerprint cards as a predicate for later testimony of the state's fingerprint expert. On cross-examination, defense counsel sought to question the officer regarding a comparison made between the fingerprints on the murder weapon and defendant's fingerprints. The state objected, and the trial court sustained the objection, ruling that the cross-examination exceeded the scope of direct. More importantly for our purposes, in order to present the same testimony to the jury, the trial judge felt that defense counsel could call the witness as defendant's own. In reversing the supreme court stated that:

"In the recent case of Hahn v. State [c.o.] we had the almost identical question before us and without equivocation we held that it was fatal error for the trial court to deny defense counsel the right of cross-examination for the purpose of laying a predicate for impeachment. The vital question in that case was not one of identity but was whether the defendant killed the deceased while acting in self-defense. However, the analogy between that case and the instant suit is so clear-cut as to be unquestioned authority for a reversal herein.

"Moreover, the distinction between the two criminal actions consists of a difference which is more favorable to a reversal in the instant, than in the Hahn v. State, case. The propriety of recalling a witness for the State for further cross-examination after the State has rested its case for the purpose of laying a predicate for impeachment is a matter which rests in the sound judicial discretion of the court. On the other hand, the right of a full and fair cross-examination of a witness upon subjects the door to which is pushed ajar on the examination in chief is an absolute right which has as its genesis Section 11 of the Florida Declaration of Rights. This Section provides that an accused shall have the right 'to meet the witnesses against him face to face' in open court before an impartial jury."

62 So.2d at 896. ¹ In our opinion, the circumstances in Coco are essentially identical to this case. They involve the defendant's right to introduce a defensive matter through cross-examination, rather than by direct examination in his own case. In other words, although the court has discretion in determining whether a case should be re-opened, under Hahn and Coco this discretion is abused when it touches upon the right to cross-examination that has its purpose the weakening of the testimony given by the witness on direct examination by the state.

There is one difference between this case and Coco, however, but it strengthens defendant's argument. It involves the rule of completeness, which allows an adverse party--at the time a portion of a writing or recorded statement is introduced--to have another portion or another statement or writing introduced that should, in fairness, be considered contemporaneously. § 90.108, Fla. Stat. (1995). It has thus been noted that:

"If counsel for the adverse party does not seek to invoke section 90.108 at the time the writing or document is offered, the provision may not be utilized during cross-examination or during the party's own case. However, section 90.108 does not prohibit evidence of the remainder of the writing or document; the evidence would have to be subjected to proper cross-examination or meet the usual test of admissibility if offered during counsel's case."

Charles W. Ehrhardt, FLORIDA EVIDENCE § 108.1 at 34 (1995). Despite this, it has generally been held that the rule of completeness allows the admission of otherwise inadmissible evidence during cross-examination, if fairness so requires.

Thus, in Christopher v. State, 583 So.2d 642 (Fla.1991), the court rejected the state's argument that, because statements sought to be admitted on cross-examination were hearsay, they were inadmissible, the court explaining as follows:

"When the state offers in evidence a part of a confession or admission against interest, the defendant is entitled to bring out on cross-examination the entire confession or admission. Louette v. State, 152 Fla. 495, 12 So.2d 168 (1943). In Eberhardt v. State, 550 So.2d 102, 105 (Fla. 1st DCA 1989), review denied, 560 So.2d 234 (Fla.1990), the rule was applied as follows:

'Because portions of the defendant's conversation with the officer were admitted on direct examination, the rule of completeness generally allows admission of the balance of the conversation as well as other related conversations that in fairness...