Borgess v. State
This text of 455 So. 2d 488 (Borgess 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.
Opinion
Steven Lawrence BORGESS, Appellant,
v.
STATE of Florida, Appellee.
District Court of Appeal of Florida, First District.
*489 Glenna Joyce Reeves, Asst. Public Defender, for appellant.
Jim Smith, Atty. Gen., David P. Gauldin, Asst. Atty. Gen., for appellee.
WENTWORTH, Judge.
Appellant was charged and convicted on two counts of lewd and lascivious assault in violation of § 800.04, Florida Statutes, with consecutive sentences of 15 and 10 years. In this appeal, he contends that the trial court erred in denying his motion for new trial. We affirm but find that the issues raised by appellant warrant explanation.
The state's evidence at appellant's jury trial consisted primarily of the testimony of the two victims, appellant's ten year old stepdaughter[1] and her playmate who was visiting overnight. The two girls testified that they were playing in the bedroom when appellant came in, began tickling and wrestling with them, and then started rubbing them on their "private parts."
After the trial, appellant's ex-wife went to the office of appellant's attorney and told him that several weeks prior to trial her daughter had told her that she was "playing a game on her daddy" and that he had not really done anything to her. At the hearing on appellant's previously filed motion for new trial, defense counsel sought and was granted leave to amend the motion to include an allegation of newly discovered evidence. When the trial court discovered the nature of the new evidence, he appointed a guardian ad litem for appellant's stepdaughter and continued the hearing to a later date. The hearing on the motion for new trial was finally concluded several months later. At that time the child was placed on the stand and questioned *490 by defense counsel. He asked her if she remembered testifying at the trial and she said "no." He then asked her whether her father had ever touched her private parts, and again she answered "no." On cross examination the state attorney unsuccessfully attempted to refresh the child's memory of her trial testimony. Appellant's ex-wife then testified that after the trial she had voluntarily gone to defense counsel's office with the information of her daughter's pretrial recantation. She also testified that several weeks before trial, soon after she heard the statement, she had taken her daughter to the police station and the daughter had told the Springfield police that she was playing a game on her daddy. The motion for new trial based on newly discovered evidence was denied, and appellant raises two points on appeal.
First, appellant argues that the denial was an abuse of discretion because the recanted testimony probably would have changed the outcome of the trial. Appellant correctly points out that this is not a case where the witness recanted, then reaffirmed her trial testimony. See Weston v. State, 351 So.2d 75 (Fla. 1st DCA 1977); Mollica v. State, 374 So.2d 1022 (Fla. 2d DCA 1979). However, the standard for determining whether a new trial should be ordered on the basis of recanted testimony was set out in Henderson v. State, 136 Fla. 548, 185 So. 625 (1939), where the Court stated:
A material error or misstatement in the testimony of the witness for the prosecution may constitute ground for a new trial... But recantation by witnesses called on behalf of the prosecution does not necessarily entitle defendant to a new trial. The question of whether a new trial shall be granted on this ground depends on all the circumstances of the case, including the testimony of the witnesses submitted on the motion for the new trial. Moreover, recanting testimony is exceedingly unreliable, and it is the duty of the court to deny a new trial where it is not satisfied that such testimony is true.
Id. 185 So. at 630.
In this case, the trial judge was in the best position to evaluate the credibility of the child's conflicting stories, and we cannot conclude that he was required to find that the true version was the one told at the post trial hearing.[2] Since the court was not satisfied that the recanting testimony was true, the motion for new trial was properly denied.
Appellant next argues that the testimony of the victim's mother shows that the state failed to disclose evidence which was material and favorable to the defense in violation of Fla.R.Crim.P. 3.220 and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). While the statement in question apparently rises to the degree of materiality requiring disclosure under Brady and its progeny, we cannot, from the present record, determine whether or not a Brady violation in fact occurred. We have only the mother's testimony that her daughter made the statement to the Springfield police prior to trial. There are no specifics in this record pertaining to the circumstances of the report, because defense counsel never apprised the trial judge of the possibility of a Brady violation. On the contrary, each time the witness referred to the pretrial trip to the police station, defense counsel either ignored the testimony or actively attempted to cut the answer short.[3]
*491 Thus, there has never been a factual determination that a Brady violation occurred, and the state has not had an opportunity to rebut the allegation before a proper finder of fact. This court will not, of course, make initial factual determinations, and we therefore will not reverse on the basis of the alleged Brady violation. Cf., Delmarco v. State, 406 So.2d 1169 (Fla. 1st DCA 1981). However, our affirmance is without prejudice to the right to raise the issue of a Brady violation in conjunction with any allegation of ineffective assistance of counsel pursuant to Fla.R.Crim.P. 3.850.
Affirmed.
BOOTH, J., concurs.
ERVIN, C.J., specially concurs, with opinion.
ERVIN, Chief Judge, specially concurring.
I concur without reservation as to the second point raised in that it appears that the asserted Brady violation was not brought to the attention of the lower court. The first point raised whether the trial court abused its discretion in denying the motion for new trial, presented on the ground of newly discovered evidence is far more troubling. This is an issue which in the past has been met with mixed results. The usual rule, as stated by the majority, quoting from Henderson v. State, 135 Fla. 548, 185 So. 625, 630 (1939), is that the granting of a new trial depends upon all of the circumstances of the case. Accord, Bell v. State, 90 So.2d 704 (Fla. 1956). A more recent variation of the rule is that in deciding whether a motion for new trial should be granted for the reason of newly discovered evidence, the trial judge is required to weigh both the evidence presented at the trial and the evidence offered on the motion in order to determine whether the evidence, if it had been introduced at trial, would probably have changed the jury's verdict. Jent v. State, 408 So.2d 1024 (Fla. 1981). In making this determination the trial judge is allowed broad discretion.
Notwithstanding the rule announced in Henderson v. State, the Second District Court of Appeal in Solis v. State, 262 So.2d 9 (Fla. 2d DCA 1972), following its earlier opinion in O'Brien v. State, 206 So.2d 217 (Fla.
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455 So. 2d 488, Counsel Stack Legal Research, https://law.counselstack.com/opinion/borgess-v-state-fladistctapp-1984.