Eberhardt v. State

550 So. 2d 102, 1989 WL 113232
CourtDistrict Court of Appeal of Florida
DecidedSeptember 26, 1989
Docket88-891
StatusPublished
Cited by31 cases

This text of 550 So. 2d 102 (Eberhardt 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
Eberhardt v. State, 550 So. 2d 102, 1989 WL 113232 (Fla. Ct. App. 1989).

Opinion

550 So.2d 102 (1989)

Kennedy EBERHARDT, Appellant,
v.
STATE of Florida, Appellee.

No. 88-891.

District Court of Appeal of Florida, First District.

September 26, 1989.

*103 Michael E. Allen, Public Defender, and Phil Patterson, Asst. Public Defender, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen., and Edward C. Hill, Jr., Asst. Atty. Gen., Tallahassee, for appellee.

ZEHMER, Judge.

Appellant, Kennedy Eberhardt, was charged with unlawfully entering a structure located in Tallahassee on the night of September 20, 1987, with the intent to commit an offense therein, contrary to section 810.02, Florida Statutes. Eberhardt pleaded not guilty, was tried, and was adjudicated guilty of burglary of a structure as charged pursuant to the jury verdict. He appeals the judgment on numerous grounds. Because several errors deprived him of a fair trial, we reverse and remand for a new trial.

Briefly stating the context of the case, Douglas Cooksey, the owner of the subject premises, found Eberhardt asleep or passed out in an office chair at a desk on a Sunday morning. Eberhardt's shirt had been taken off and was found in another office. A key to the office, a pocket knife, and a monogrammed money clip bearing Cooksey's name, all normally kept in his desk drawer, were found in Eberhardt's pockets. Whether Eberhardt was merely asleep or passed out due to overindulgence of alcohol or drugs and unable to form the requisite intent to commit an offense upon entering the building was critical to the defense at trial.

I.

We first address the defendant's argument that the trial court erred in denying his motion for a new trial because he was brought in prison clothing before the venire. It appears that prior to jury selection and while clad in readily recognizable jail clothes, Eberhardt was brought into the courtroom and apparently observed by the venire. At that point defense counsel moved without success for a continuance so that a jury could be chosen from a venire that had not observed appellant so dressed. Before sentencing, counsel moved unsuccessfully for a new trial on the same ground.

*104 Eberhardt had requested that the state allow him to dress for trial in normal clothing. His family were supposed to bring clothes to the jail before the trial, but they did not arrive in time, and he was moved to the courtroom in jail clothes. Shortly thereafter Eberhardt's family arrived with his clothes and he changed clothes prior to the jury panel's being seated in the jury box and examined on voir dire. Citing Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126, reh'g denied 426 U.S. 954, 96 S.Ct. 3182, 49 L.Ed.2d 1194 (1976), Eberhardt argues that it was reversible error for the state and the court to compel him to appear before the venire in jail clothes rather than to provide him with appropriate clothing, even though his family failed to timely arrive, and that the court proceedings should have been delayed temporarily to provide him with appropriate clothing.

The state argues that no violation of Estelle occurred because the failure of Eberhardt's family to bring his clothes in a timely manner was not the fault of the state; and furthermore, when the voir dire of the jury took place, defendant was dressed in the clothes they had brought. Therefore, the state argues, any problem with Eberhardt's dress in the courtroom was his own fault and is a matter concerning which he should not be heard to complain. The state further contends that Eberhardt has failed to demonstrate prejudice and preserve this issue for appellate review because he is required by law to show affirmatively on the record that the venire actually saw the prison clothes and that the viewing was more than incidental and resulted in prejudicial identification. The state cites, in support of this contention, Maxwell v. Wainwright, 490 So.2d 927 (Fla.), cert. denied 479 U.S. 972, 107 S.Ct. 474, 93 L.Ed.2d 418 (1986); Elledge v. State, 408 So.2d 1021 (Fla. 1981); cert. denied 459 U.S. 981, 103 S.Ct. 316, 74 L.Ed.2d 293 (1982), reh'g denied 459 U.S. 1137, 103 S.Ct. 771, 74 L.Ed.2d 984 (1983); and Gates v. Zant, 863 F.2d 1492 (11th Cir.), reh'g denied 880 F.2d 293 (1989). Pointing out that Eberhardt's counsel did not ask any potential juror whether he or she saw the defendant in prison clothes and failed to establish the requisite prejudice, the state argues it would be pure speculation to conclude that the defendant was prejudiced within the meaning of Estelle.

The law now recognizes that once the defendant has requested to appear in court in other than prison clothes, the state must make appropriate provisions to this end. We conclude that even though Eberhardt had asked his family to bring the necessary clothing, the state was not necessarily relieved of its obligation by the family's undertaking should the clothing not arrive on a timely basis. However, a defendant desiring to establish that he was prejudiced because forced to stand trial in prison clothing must make a timely objection and establish on the record that he was identified by a juror as being a prisoner by reason of his wearing the prison uniform. Torres-Arboledo v. State, 524 So.2d 403 (Fla.), cert. denied ___ U.S. ___, 109 S.Ct. 250, 102 L.Ed.2d 239 (1988). Although Eberhardt's counsel made a timely objection, counsel did not thereafter question the jury to establish on the record that at least one member saw him so attired and recognized his status as a prisoner. Nor did she undertake to challenge any of the jurors for cause on this ground. Where a defendant has so established his objection, prejudice is shown and the defendant is held to be denied a fair trial. Although we conclude that it was error for the court to permit the venire to see Eberhardt in the courtroom in prison clothes, defense counsel did not properly preserve this objection as a basis for reversal. See Torres-Arboledo v. State, supra; Hildwin v. State, 531 So.2d 124 (Fla. 1988), aff'd ___ U.S. ___, 109 S.Ct. 2055, 104 L.Ed.2d 728, reh'g denied ___ U.S. ___, 109 S.Ct. 3268, 106 L.Ed.2d 612 (1989).

II.

Eberhardt next contends that he was erroneously prevented from adducing evidence establishing that he was too intoxicated and "high" on drugs to form the requisite criminal intent to commit an offense upon entering the building. He argues *105 that he was denied due process of law and the assistance of counsel because counsel was prohibited from eliciting testimony from witnesses that Eberhardt appeared to them to be passed out; that is, in a state or condition of severe intoxication.

On direct examination by the prosecutor, two witnesses testified that the defendant was found asleep in a desk chair. On cross-examination, counsel for defendant was prohibited from asking whether the defendant appeared to be under the influence of drugs or alcohol. A lay witness may testify to physical appearance or observable intoxication. Ehrhardt, Florida Evidence § 701.1, n. 18 (2d ed. 1984). The questions on cross-examination did not go beyond the scope of the questions asked on direct examination.

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Bluebook (online)
550 So. 2d 102, 1989 WL 113232, Counsel Stack Legal Research, https://law.counselstack.com/opinion/eberhardt-v-state-fladistctapp-1989.