Warren v. State, 77-1737
| Decision Date | 23 May 1979 |
| Docket Number | No. 77-1737,77-1737 |
| Citation | 371 So.2d 219 |
| Parties | Raymond Preston WARREN, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Jack O. Johnson, Public Defender, Bartow, and Wayne Chalu, Asst. Public Defender, Tampa, for appellant.
Jim Smith, Atty. Gen., Tallahassee, Michael Palecki and Mary Jo M. Gallay, Asst. Attys. Gen., Tampa, for appellee.
Appellant Raymond Preston Warren appeals his convictions for escape, armed robbery and carrying a concealed firearm. He contends that the trial court erred in allowing testimony into evidence concerning arrests and charges other than those for which he was being tried. He also argues that the trial court erred in refusing to instruct the jury that an essential element of the crime of escape was that the escape was from lawful custody. We agree with appellant's arguments and reverse.
At trial, a detective from the Hillsborough County Sheriff's Department testified that appellant escaped from his custody while being transported to the county jail after a dental appointment. Appellant effected the escape by threatening the officer with a gun and handcuffing him to a nearby parked car. Appellant then drove away in the officer's vehicle.
On cross-examination the officer denied defense counsel's suggestion that appellant had paid the officer to permit the escape. On redirect, the following dialogue took place between the prosecutor and the officer:
Q. You had had occasion to see Mr. Warren's jail card?
A. Yes, sir.
Q. To your knowledge what was Mr. Warren in jail for at the time he escaped?
A. Multiple petit larceny Armed robberies.
Q. Are you aware that any of the past You were aware, then, of the offenses that the defendant was presently in jail for at that time?
A. Yes, sir. It was there to be seen.
Q. Were you aware of any other factors that came to your attention during the course of your job about this defendant?
A. He had a hold on him or at least one hold. He had a background of at least one escape.
MR. ARNOLD: Your Honor, again I object and move for a mistrial. This is irrelevant.
THE COURT. Overruled. Go ahead. (Emphasis supplied)
Prior to instructing the jury, the court submitted its proposed jury instruction on escape to counsel for both sides. Defense counsel agreed to the instruction on the condition that the court also instruct that one of the essential elements of the crime was that the defendant had escaped from lawful custody. The court declined to add this element.
The Supreme Court of Florida held in Williams v. State, 110 So.2d 654, 659 (Fla.1959), that evidence of collateral crimes for which the defendant is not on trial may be admissible if relevant to prove some fact in issue other than the bad character of the defendant or his propensity to commit crime. Here the State argues that the testimony in question was elicited solely for the purpose of rehabilitating the witness. In this event, the prosecutor should have brought forth evidence of the officer's good character rather than testimony showing appellant's propensity for committing armed robbery and escape. Under the criteria of Williams v. State, supra, comments on appellant's prior record...
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