Cokely v. State

138 So. 3d 1204, 2014 WL 2197736, 2014 Fla. App. LEXIS 8078
CourtDistrict Court of Appeal of Florida
DecidedMay 28, 2014
DocketNo. 4D12-1846
StatusPublished

This text of 138 So. 3d 1204 (Cokely 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
Cokely v. State, 138 So. 3d 1204, 2014 WL 2197736, 2014 Fla. App. LEXIS 8078 (Fla. Ct. App. 2014).

Opinion

CONNER, J.

The defendant appeals his judgment and sentence for felony battery. He argues that the trial court erred in denying the presentation of favorable testimony by a defense witness because the witness was present in the courtroom, in violation of court ordered sequestration of witnesses. We agree with the defendant that the trial court did not conduct the proper analysis before ruling that the witness could not testify. We hold the error was not harmless, and we reverse for a new trial.

Factual Background and Trial Court Proceedings

The defendant was charged with felony battery to which the defendant asserted a stand-your-ground defense.1 The trial court conducted a pretrial evidentiary hearing on the defense motion to dismiss, at which the rule of sequestration was invoked.2 A brief summary of the evidence presented at the motion to dismiss hearing follows.

Before the incident, the defendant was engaged to the victim’s daughter. They had been living together for nine years and had three children. The defendant and the victim lived three or four houses away from each other.

The defendant and the victim agreed to do some plumbing work for a friend of the victim and decided they would split the money received for the job. The friend testified that the defendant did “about ninety-eight percent” of the work. The friend paid the victim $1150 for the job. However, the victim only gave the defendant $80 as his portion of payment. When the defendant discovered that he had been cheated, he testified that he confronted the victim and told him never to come to his house again or ask him for anything.

The defendant also testified that on the day of the incident, he was on his porch when the victim approached aggressively and asked for his granddaughter’s bicycle. The defendant told the victim that the bicycle was broken and then turned his head around to see what his son was doing. [1206]*1206As the defendant turned his head back toward the victim, the victim lunged at him. The defendant testified, “so I stepped back and I threw two blows and that was it.” The victim fell to the ground. The defendant testified that he did not approach the victim or strike him again. Additionally, the defendant explained that the victim had previously threatened him with a shotgun four times, which put him “on the defensive side” when the victim approached him on the porch.

The victim testified that on the day of the incident, his granddaughter told him that her bicycle was broken. The victim and the granddaughter went to the defendant’s house so that the victim could try to fix the bicycle. As he and his granddaughter were approaching the defendant’s house, the defendant pushed the granddaughter. When the victim bent down to help his granddaughter, the defendant punched him in the face. The victim testified that he did not lunge at the defendant, raise his hands, or run towards the defendant before the defendant punched him. The victim also testified that the defendant punched him a second time.

During cross-examination, the victim acknowledged that the defendant told him the day before the incident that he never wanted to work with him again. However, the victim denied that the defendant told him that he did not want the victim to come to his house anymore or that the defendant did not “want anything to do with” him.

The defendant’s fiancée (the victim’s daughter) was present during the cross-examination of the victim. Immediately after the victim testified as to what the defendant told him the day before the incident, the court advised the fiancée, “you may step out.” The record vaguely indicates that the court perceived the fian-cée to have engaged in some kind of disturbance or distraction.

The court denied the motion to dismiss after considering the evidence and arguments presented at the hearing.

At trial, the victim essentially gave the same testimony that he gave at the stand-your-ground hearing. Consistent with his testimony at that hearing, the victim denied that the defendant told him the day before the incident never to come to his house again. However, unlike the motion to dismiss hearing, the denial came during direct examination, rather than cross-examination.

On the morning of the final day of trial, the State informed the court that the defense had just provided a revised witness list which included the defendant’s fiancée. The defendant’s counsel explained that when the victim testified the previous day that the defendant had not told him to stay away from his house, the defendant whispered to him that his fiancée had been present and heard the defendant tell the victim to stay away. Defense counsel contacted the fiancée around 9:00 p.m. after court ended, verified that she would testify that she heard the conversation, and gave the amended witness list to the State the next morning. Defense counsel told the court that striking the fiancée’s testimony was a severe sanction and that the court could hold a recess to allow the State to controvert her testimony or depose her.

The court stated:

My problem is this. I was told by the defense during the stand your ground motion and the hearing that she was not a witness. She sat through that whole proceeding. Unfortunately, that’s the bed that the defense laid. That testimony that apparently pricked [the defendant] was the same testimony that was given at the stand your ground hearing.3 [1207]*1207So, I think it’s not genuine on his part to tell his counsel at this point, and you are the same counsel that assisted during the stand your ground hearing. So I’m not going to allow her to testify.
She sat through this whole proceeding. The defense actually requested — the State or parties actually requested sequestration of those or the rule — invoke the rule of the witnesses not being here to hear that testimony. She’s had the benefit of hearing all of the testimony, sat here and the defense says she is not a witness, she’s not going to be a witness. So, I’m not going to allow her to testify.

The court allowed defense counsel to proffer the fiancée’s testimony. She testified that when she went with the defendant to the victim’s house the day before the incident, the defendant told him “that he knows [the friend] paid him in full, and from this point on ... don’t ask me for anything. And don’t come down to the house and ask for ehange, cigarettes or whatever, you know. From this point on, the relationship is over.” The State did not cross-examine the fiancée. The court verified with the fiancée that she had heard the parties say she would not be a witness and that she did not know she would be a witness until the night before the final day of the trial.

The defendant chose not to testify at trial. The only defense witness was the friend of the victim who requested and paid for the plumbing work. The jury found the defendant guilty of felony battery causing great bodily harm, permanent disability, or permanent disfigurement.

Legal Analysis

The defendant argues that the trial court erred by excluding his fiancée’s testimony because of a violation of the rule of sequestration without conducting an inquiry into whether her testimony changed as a result.4

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Cite This Page — Counsel Stack

Bluebook (online)
138 So. 3d 1204, 2014 WL 2197736, 2014 Fla. App. LEXIS 8078, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cokely-v-state-fladistctapp-2014.