Coleman v. State

491 So. 2d 1206, 11 Fla. L. Weekly 1578, 1986 Fla. App. LEXIS 9019
District Court of Appeal of Florida·Decided July 18, 1986·No. No. BE-325·Published·Cited by 1 cases

Opinion

REVISED OPINION

SHIVERS, Judge.

This is a case involving a wife’s attempt to have charges filed against her husband dropped prior to the trial. The State Attorney’s Office elected to prosecute the matter and a jury found appellant guilty of aggravated assault and aggravated battery. Appellant now alleges that the prosecutor’s communications with his wife (the victim) prior to trial constituted a denial of due process and necessitates a new trial. We disagree.

At the time of the incident giving rise to this case, appellant and his wife, Mrs. Coleman, were separated but were attempting a reconciliation. The incident took place in Mrs. Coleman’s home, which she had pur[1207]*1207chased after the separation. The principal fact in dispute is whether Mrs. Coleman actually observed the appellant with a gun, or whether she merely assumed that he had a gun.

Mrs. Coleman’s initial contact with the State Attorney’s Office took place immediately following the incident, on 8/13/84. According to Mrs. Coleman’s later testimony at the hearing on appellant’s motion for new trial, the State Attorney’s Office was unwilling to become involved in her case until she told them that she thought appellant had a gun. Appellant was arrested two days later.

On 10/9/84 Mrs. Coleman’s deposition was taken by defense counsel, Moss. In response to Mr. Moss’ question, “Whose gun was it?,” Mrs. Coleman gave the following testimony:

It was his gun. He came back in, but while he went out, I was in the back. And when he came in the house, all — I could hear him with the gun. And then he came back from the back and he pulled the gun and told me he was going to kill me. So he cocked it, and the whole time I was begging him pleading, please don’t. Please don’t. And he drew it back and he cocked it and he pulled the trigger once at my head. By that time I was screaming, and he told me to shut up and he just kept hitting me and hitting me.

Prosecutor DeCandio was not present at the deposition.

On 11/1/84, Mrs. Coleman visited the State Attorney’s Office a second time and provided DeCandio with a sworn statement. In regard to the weapon, the following colloquy took place:

Q: Did he at any time have a weapon in his possession?
A: Yes.
Q: What kind of weapon?
A: A gun.
Q: Was this a handgun?
A: Yes.
Q: Did he ever point the gun at you?
A: Yes.
Q: Did he ever threaten you with it?
A: Yes.
Q: Did he ever at any time cock it or pull the trigger?
A: Yes, both,
Q: Was it pointed at you?
A: Yes.
Q: Did he give you any reason to believe that the gun was not loaded when he did that?

A: I don’t know one way or the other. According to Mrs. Coleman, her purpose for visiting DeCandio’s office on 11/1/84 was to speak with him about dropping the charges against her husband. She states that when she arrived, a court reporter was present and DeCandio told her that before they discussed dropping the charges, he wanted to “touch base” with her as to what was said at the 10/9/84 deposition. After giving the sworn statement, according to Mrs. Coleman, DeCandio stated he had decided not to drop the charges. He then handed her a trial subpoena and told her that if she did not appear at trial she would be held in contempt.

After their 11/1/84 meeting, Mrs. Coleman spoke with DeCandio four or five more times about dropping the charges. Mrs. Coleman stated that during this time, DeCandio assured her that he felt appellant would be acquitted, but that if he were not, the most he would face on conviction would be counseling.1 Mrs. Coleman in turn relayed that information to her husband and frequently discussed with him her understanding that he would at most receive counseling. Two weeks prior to the trial, Mrs. Coleman spoke with defense counsel Moss to inform him that she wished to drop [1208]*1208the charges. She also made a last attempt with DeCandio on the morning of the trial.

A jury trial was held on 12/6/84 at which Mrs. Coleman testified. The appellant did not testify, nor was any defense presented by appellant. Mrs. Coleman’s entire trial testimony concerning the weapon consisted of the following two colloquys:

Q: At any time during this ordeal did Gregory Coleman point a weapon at you?
A: Yes.
Q: What kind of weapon was it?
A: It was a gun.
Q: Was it a rifle or a pistol?
A: Pistol.
Q: All right. Where did he point the pistol?
A: At my head.
Q: Did he say anything to you when he did it?
A: That he should pull the trigger, that he should kill me.
Q: Did he pull the trigger?
A: Yes.
Q: Did he pull the trigger more than once?
A: Yes.
******
Q: When Gregory held the gun to you— when did you first see the gun? Did he have the gun in the automobile?
A: No.
Q: When he held the gun to your head, you said that he pulled the trigger, what happened when he pulled the trigger? A: It just clicked.
Q: Beg your pardon?
A: It just clicked, the gun.
Q: How many times was that done? A: Two or three.

Defense counsel’s cross-examination of Mrs. Coleman did not address the details of the incident whatsoever. However, Mrs. Coleman did testify on cross-exam that she had visited both DeCandio and Moss in her attempts to have the charges dropped, that she still wished to drop them, and that DeCandio had told her she could be held for contempt or perjury if she changed her testimony or failed to appear. The appellant did not testify and no defense was presented. The trial concluded with the jury finding appellant guilty of both aggravated assault and aggravated battery.

On January 21, 1985, a hearing was conducted on appellant’s motion for new trial, at which both Mrs. Coleman and appellant testified. According to Mrs. Coleman, De-Candio told her that if she cooperated she could make it easy on herself, but that if she resisted it would be difficult. Mrs. Coleman testified, “I really didn’t see a choice. It was either testify or go to jail myself.” Mrs. Coleman reiterated that De-Candio had assured her that appellant would at most receive counseling. She stated that had she known that he was facing a three-year minimum mandatory sentence, she would not have testified at trial.

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Coleman v. State, 491 So. 2d 1206, 11 Fla. L. Weekly 1578, 1986 Fla. App. LEXIS 9019 (Fla. Ct. App. 1986).

491 So. 2d 1206 (Coleman v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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