Correia v. State

654 So. 2d 952, 1995 WL 144144
CourtDistrict Court of Appeal of Florida
DecidedApril 5, 1995
Docket93-2815
StatusPublished
Cited by10 cases

This text of 654 So. 2d 952 (Correia 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
Correia v. State, 654 So. 2d 952, 1995 WL 144144 (Fla. Ct. App. 1995).

Opinion

654 So.2d 952 (1995)

Nicholas CORREIA, Appellant,
v.
STATE of Florida, Appellee.

No. 93-2815.

District Court of Appeal of Florida, Fourth District.

April 5, 1995.
Rehearing Denied May 9, 1995.

Richard L. Jorandby, Public Defender, Eric M. Cumfer and Margaret Good-Earnest, *953 Asst. Public Defenders, West Palm Beach, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Melynda L. Melear, Asst. Atty. Gen., West Palm Beach, for appellee.

PARIENTE, Judge.

We reverse appellant's (defendant's) conviction for aggravated assault with a firearm because of the improper admission of extrinsic evidence introduced solely for impeachment on collateral matters relating to facts brought out on cross-examination of defendant's alibi witness.

The incident occurred while the victim was waiting for one of his friends to return with a spare tire, after the vehicle in which he and a group of his friends were riding got a flat tire. The victim testified that while the group was waiting, a maroon Mercury Cougar drove by and the occupants of that car began yelling at and threatening the victim and his friends. According to the victim, the driver of the Cougar made a U-turn, parked in the school parking lot adjacent to where the victim and his friends were waiting with their car and exited the car. Two of the occupants began walking toward the victim and one of the occupants, identified by the victim as defendant, pulled a gun from the trunk of the Cougar and pointed the gun at the victim. The victim testified that, as he ran away, he heard two gunshots, at least one of which was in his general direction.

None of the other occupants of either vehicle testified at trial. There was one eyewitness to the shooting who substantiated the victim's version of what occurred, but who could not identify defendant as the perpetrator. The deputy sheriff who responded to the shooting testified that he inspected the area where the gun was allegedly fired and found no shells on the ground or bullet holes in the exterior of the vehicle. In fact, no physical evidence of a shooting was ever found during the course of the investigation.

Appellant testified in his own defense. His version of the relationship between the victim and himself was that the accusation was a set up; that while the victim and he had been friends in high school, they were now enemies and in fact had been involved in a couple of fights. The victim, however, denied any animus existed. Defendant's defense also centered on an alibi, which was that he was sick at home at the time of the shooting.

Nancy Ericksen, a friend of defendant's mother and a nurse who was out of work because of a back injury, testified that defendant was sick in bed on the day of the incident. She testified that she arrived at defendant's home at about noon that day and was there until approximately 5:30 p.m. She stated that nothing out of the ordinary occurred that day and that she and defendant's mother passed the afternoon "snacking and eating and watching TV and talking." She further recalled that defendant stayed in bed most of the day and that "he didn't look real good." She took his temperature, which was 101 degrees, gave him a couple of Tylenol and told him to lay down and rest because it looked like he might have the flu. She was surprised when she received a phone call from defendant's mother that evening telling her that defendant had been arrested because she knew defendant had been sick at home all day.

On cross-examination the state extensively questioned Ericksen about details of her testimony concerning what she was watching on TV, where she administered the Tylenol and whether anyone else had stopped by defendant's home that day. The state also used a prior deposition of Ericksen for impeachment purposes. In an earlier deposition, Ericksen had been asked what movie she and defendant's mother were watching the day of the incident, and she had responded "I don't know, she's got cable." However, on cross-examination at trial, Ericksen stated that she did not remember if she was watching cable television at defendant's home.

The state requested the opportunity to present rebuttal testimony from defendant's mother and the records custodian of TCI of South Florida (the cable company). It asserted that it was presenting defendant's mother to contradict particular statements in Ericksen's testimony, specifically, where she gave defendant the Tylenol and who else was in the house that day and that it was presenting the cable company records custodian's *954 testimony to show that there was no cable service to defendant's home on the date of the incident. The trial court allowed the testimony, finding it material to the credibility of defendant's alibi.

Defendant asserts the trial court erred in allowing the state to call defendant's mother and the cable company records custodian to contradict the testimony offered by Ericksen, defendant's alibi witness, which contradictions were brought out on cross-examination and were not material aspects of defendant's alibi defense. According to defendant, the witnesses were used to impeach Ericksen on immaterial collateral issues, such as where Ericksen tended to defendant, who was in the home, and whether Ericksen and defendant's mother were watching cable television.

The state argues the inconsistencies in Ericksen's testimony are relevant to the credibility of defendant's alibi, as found by the trial court. Taken to the logical extreme, all details of an alibi defense could be subject to impeachment by extrinsic evidence whether or not the detail is a critical aspect of the alibi witness's testimony. This exception would eviscerate the evidentiary prohibition in cases involving alibi defenses, a position without precedent.

In determining if the issue is collateral so that collateral impeachment by extrinsic evidence is disallowed, the question to be posed is whether the impeaching evidence would be admissible for any purpose other than contradiction. Dempsey v. Shell Oil Co., 589 So.2d 373, 377 (Fla. 4th DCA 1991). Two types of evidence pass this test: 1) evidence which is relevant to independently prove a material fact or issue; and, 2) evidence which would discredit a witness by pointing out the witness's bias, corruption or lack of competency. Id. The state argues that the evidence in this case is admissible under the second prong. However, we reject both bases for admitting the extrinsic impeachment evidence.

Minor discrepancies in a witness's testimony or between witnesses can be expected in all cases, especially if the testimony is not manufactured by the witnesses. There is a distinction between the wide discretion allowed in cross-examination of a witness on collateral matters and the much more limited discretion afforded to impeachment by extrinsic evidence on matters inquired into on cross-examination. When Ericksen took the stand to give testimony supporting defendant's alibi, she put her credibility in issue, and wide latitude was properly given during cross-examination to test the details of the alibi. See Holmes v. State, 565 So.2d 824 (Fla. 4th DCA 1990), review denied, 576 So.2d 287 (Fla. 1991). Obviously, the state is allowed to delve into all matters which "may modify, supplement, contradict, rebut or make clearer the facts testified to in chief... ." Dempsey, 589 So.2d at 378 (quoting Zerquera v. State, 549 So.2d 189, 192 (Fla. 1989) (quoting Coxwell v. State, 361 So.2d 148, 151 (Fla. 1978) (quoting Coco v. State, 62 So.2d 892, 895 (Fla.

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Cite This Page — Counsel Stack

Bluebook (online)
654 So. 2d 952, 1995 WL 144144, Counsel Stack Legal Research, https://law.counselstack.com/opinion/correia-v-state-fladistctapp-1995.