Barnes v. State

415 So. 2d 1280
CourtDistrict Court of Appeal of Florida
DecidedMay 12, 1982
Docket81-1571
StatusPublished
Cited by8 cases

This text of 415 So. 2d 1280 (Barnes v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Barnes v. State, 415 So. 2d 1280 (Fla. Ct. App. 1982).

Opinion

415 So.2d 1280 (1982)

John Morgan BARNES, Appellant,
v.
STATE of Florida, Appellee.

No. 81-1571.

District Court of Appeal of Florida, Second District.

May 12, 1982.
Rehearing Denied July 1, 1982.

*1281 Fred S. Pflaum, Sarasota, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellee.

CAMPBELL, Judge.

Appellant, John Morgan Barnes, was convicted of false imprisonment, sexual battery and aggravated battery. Though he alleges numerous errors in his jury trial, only one merits discussion. The trial court excluded the testimony of John A. LaBreche, who testified that after appellant was arrested for the assault, he, Mr. LaBreche, had seen other unidentified persons who, in his opinion, fit the description of the assailant as described to him by the investigating officer, who had been furnished the description by the victim. Appellant argues the exclusion of that opinion evidence was error. We affirm the trial court.

The evidence presented to the jury was overwhelming that the sexual battery was committed by an unknown assailant upon the victim exactly in the manner described by her. The critical issue before the jury was whether appellant was that unknown assailant. The witness, Mr. LaBreche, was initially arrested for the assault after the victim picked his photograph from a photograph line-up as the one who looked most like her assailant. When he established an alibi, the victim then identified appellant as her assailant from another photograph line-up.

The investigation of the assault centered around a bowling alley where appellant and Mr. LaBreche were members of different teams in the same league and where they had bowled the night of the assault. The victim described her assailant as wearing blue jeans and a yellow bowling shirt which had black and white stripes on the shoulders with lettering over the pocket beginning with the letters "J" and "O" and perhaps an "H." Mr. LaBreche testified for the state that on the night of the assault appellant was wearing blue jeans and the yellow bowling shirt with black stripes on the shoulders as worn by the five members of appellant's team. Of those five members, only one, the appellant, was named John.

Detective Steube testified that during his investigation he determined that on the night of the assault forty-two men had bowled there and of that number only appellant, John LaBreche and one other were named John. All of the foregoing facts pertaining to the investigation and the initial arrest of Mr. LaBreche were admitted into evidence for the jury's consideration.

We do not disagree with the principles of law cited in Judge Grimes' dissent. We do feel that there must be a more substantial connection between unidentified third persons and the crime than Mr. LaBreche's opinion derived from a physical comparison based on a double hearsay description. In each of the cases cited by Judge Grimes, there were other distinctive connections between the crime and the other person fitting the description.

Appellant's proffer of Mr. LaBreche's testimony which was excluded by the trial judge was as follows:

*1282 DIRECT EXAMINATION
BY MR. PFLAUM:
Q Mr. LaBreche, you have been previously sworn; you are still under oath.
A Yes, sir.
Q You were arrested approximately December the 20th, is that correct?
A The nineteenth.
Q The description that was given to you of the assailant of Debra Richert was of a blond haired man, with sandy colored hair to the mid-ear and short sideburns and a mustache, is that correct?
A Yes, sir.
Q Wearing a yellow bowling shirt with black and white stripes?
A Yes, sir.
Q And driving a white pick-up truck?
A White Chevrolet.
Q The following week after you were arrested, did you have the occasion to come into contact with someone who fit that description?
A Two weeks after that, after the Wednesday night rape, I was leaving the bowling alley about ten after nine with my wife, and we were parked directly in front of the building, facing the building, and I observed a white pick-up truck with a utility box in the back, with some lettering on the side, pull up to the right of me, some paces away, and I had started my vehicle, and I turned on my headlights and the person walked directly in front of my headlights, and I kind of followed him as he approached the opening to the door, where there was light.
This man was six-foot tall, blond hair, mustache, and had a yellow bowling shirt on, with black lettering.
Q Did it have stripes on the collar?
A Yes, sir. And why I observed that is because I was arrested for it and that I knew there were three Johns involved at that bowling alley and in that league.
I was talking to my wife about it and I got the tag number of the vehicle, I believe, and after that night I had spotted another General Motors white pick-up truck with a utility box, with a blond, with sideburns and the mustache and whole business, three consecutive times within two weeks, and I also took the license plate number of those vehicles.
Q Did you have your eye out for a person fitting that description?
A Yes, sir.
Q That was because you were arrested on this very same charge?
A Yes, sir.
MR. PFLAUM: I have no further questions.
MR. HOWES: I have some cross-examination.
CROSS-EXAMINATION
BY MR. HOWES:
Q Who did you report this information to that you had?
A At first, I didn't really report it to nobody. I have kind of an office in the office — I'm a sales representative for Texaco. I made notes of the license plate and put them on some cards, my personal cards, on the back, and I observed the time and place at which I saw the people.
And later on, I believe it was about — I forget where I was. I believe that I had run into Officer Steube and I told him abou (sic) it.
And I also believe that I encountered Fred at one point when they took a deposition from me, and I don't know when that was, but I had mentioned it at that point about the white pick-up truck.
Q Did you mention it in your deposition?
MR. PFLAUM: No, he didn't.
MR. HOWES: Excuse me, I want the witness to answer.
THE WITNESS: I don't remember.
Q (BY MR. HOWES) You don't remember whether you did?
A I don't remember if I was even asked. I know that I thought it was important, and I might have said something after the — during — after your taking the deposition.
Q That was just to Mr. Pflaum, is that correct?
*1283 A You were there, I believe.
Q But you didn't tell me that, though, right?
A I don't know if you were still in the room or not.
Q Let me ask you this: This description that you say you got, who did you get that from?

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415 So. 2d 1280, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barnes-v-state-fladistctapp-1982.