Weiss v. State, 76--106
| Decision Date | 11 January 1977 |
| Docket Number | No. 76--106,76--106 |
| Citation | 341 So.2d 528 |
| Parties | David Allen WEISS, Appellant, v. The STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Max B. Kogen and Geoffrey C. Fleck, Miami, for appellant.
Robert L. Shevin, Atty. Gen., and Ira N. Loewy, Asst. Atty. Gen., for appellee.
Before HENDRY, C.J., and PEARSON and HAVERFIELD, JJ.
Appellant, David Allen Weiss, was the defendant in the trial court and appellee, the State of Florida, was the prosecution.
The defendant and a co-defendant, Raymond Russo, both police officers, were charged by information on August 6, 1975, with the crime of aggravated battery, in violation of Section 784.045, Florida Statutes (1973).
The incident for which appellant was charged occurred on July 30, 1975, at a downtown Miami bus station. The victim, Leon McWain, unemployed and an admitted alcoholic, was allegedly beaten by appellant subsequent to his arrest at the bus station for being drunk and disorderly. At the time of the arrest, appellant was off-duty and employed as a part-time security guard at the station.
During the course of the trial, which commenced on December 2, 1975, testimony was elicited from various observers concerning the officers' use of force in restraining the 'thrashing and kicking' McWain. The testimony varied but the most damaging appeared to be that of a registered nurse at Jackson Memorial Hospital in Miami, where McWain was taken after his arrest.
The aforementioned testimony was to the effect that upon McWain's arrival, in the custody of the officers, the nurse asked appellant, 'What do we have here?' Appellant responded with the statement, 'We have a cop beater,' and thereupon, pulled the handcuffed McWain, feet first from out of the police vehicle, causing the victim to fall face first onto the ground.
The testimony was then that the officers 'guided' the allegedly intoxicated McWain, face first, into a closed entrance door, resulting in McWain's unconsciousness. Next, the testimony was that the officers carried the senseless victim to the Ward D hospital entrance by dragging him, face down, along the ground.
Based upon the above testimony, and other witnesses' statements, appellant was found guilty of the crime of aggravated battery, as charged. The jury, however, acquitted co-defendant Russo of the charge.
On January 15, 1976, appellant was adjudicated and sentenced to five years imprisonment. This appeal follows.
Appellant, in support of a reversal, raises many points on appeal, including (1) an allegation that the state failed to comply with the discovery rules pursuant to Fla.R.Crim.P. 3.220; (2) the failure of the lower court to grant appellant's motion for judgment of acquittal in that the state failed to present evidence of injuries consisting of 'great bodily harm, permanent disability, or permanent disfigurement' sustained by McWain, which are necessary to support a conviction of aggravated battery pursuant to Section 784.045 Florida Statutes (1973); and (3) the State's introduction of seventeen color photographs of McWain, showing the victim lying in a hospital bed with various tubes and medical paraphernalia attached to his body, the effect of which appellant argues was cumulative and had an inflammatory effect upon the jurors.
Certainly, comment could be made upon any of the above alleged errors, however, we need not pass upon the validity or invalidity of any of the above in the light of the following.
Appellant additionally cites as error the lower court's denial of appellant's motion for mistrial based upon the prosecution's comment during cross-examination of appellant's failure to go forward with an exculpatory version of events while under investigation by the Internal Security Division of the Miami Police Department for his alleged activities on the night in question. This comment was repeated and...
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