Fella v. State

754 So. 2d 165, 2000 Fla. App. LEXIS 3756, 2000 WL 332617
CourtDistrict Court of Appeal of Florida
DecidedMarch 31, 2000
DocketNo. 5D99-839
StatusPublished

This text of 754 So. 2d 165 (Fella 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
Fella v. State, 754 So. 2d 165, 2000 Fla. App. LEXIS 3756, 2000 WL 332617 (Fla. Ct. App. 2000).

Opinion

GRIFFIN, J.

John Fella appeals the judgment and sentence entered after a jury found him guilty of one count of committing a lewd or lascivious act upon a child1 and one count of sexual battery on a child less than twelve years of age.2 Fella contends that the court erred (1) in admitting child hearsay statements without holding a hearing and making the findings required by statute; (2) in giving a non-standard instruction to the jury regarding the credibility of witnesses in violation of Florida Rule of Criminal Procedure 3.985;3 and (3) in con-[166]*166eluding that alleged similar fact incidents involving his sister occurred in the familial context. We find no merit to the two evidentiary claims. We agree it was error to give the non-standard instruction but, as will be explained, we do not find the error to be harmful. Accordingly, we affirm.

The issue involves the instruction on the credibility of witnesses. The court instructed the jury:

It is up to you to decide what evidence is reliable. You should use your common sense in deciding which is the best evidence, and which evidence should not be relied upon in considering your verdict. You may find some of the evidence not reliable, or less reliable than other evidence.
You should consider how the witnesses acted, as well as what they said. Some things you should consider are:
1. Did the witness seem to have an opportunity to see and know the things about which the witness testified?
2. Did the witness seem to have an accurate memory?
3. Was the witness honest and straightforward in answering the attorneys’ questions?
4. Did the witness have some interest in how the case should be decided?
5. Does the witnesses] testimony agree with the other testimony and other evidence in the case?
6. Did any witness at some other time make a statement that is inconsistent with the testimony they gave in court?
7. Was it proved that the witness had been convicted of a crime.[sie]
8. Was it proved that the general reputation of the witness for telling the truth and being honest was bad?
You may rely on your own conclusion about the witnesses. A juror may believe or disbelieve all or any part of the evidence or the testimony of any witness.
You should attempt to resolve any conflicts you find in the testimony without attributing untruthfulness to any witness. However, if there are conflicts which you cannot resolve in this manner, you should reject the testimony you find unworthy of belief, and accept and rely upon the testimony you find worthy of belief.

(emphasis added). The portion of the instruction in bold is the portion challenged by Fella. The challenged instruction was given not only prior to deliberations, but also at the beginning of the trial.

Fella urges that the inclusion of this language was highly prejudicial to him because the State’s case hinged on the truthfulness of the victim. Fella argues that “[f]or the Judge in this situation to tell the jury to go into the jury room and struggle with the possibility that both [Bridget and Fella] were telling the truth was not logical, and it was not fair to the defendant, because it fostered confusion as to how truth should be gauged in a situation already precariously balanced on the knife-edge of an angry child’s uncorroborated testimony.” Fella argues that the challenged language is not in harmony with Standard Instruction 2.04, which tells the jurors to “use your common sense in de[167]*167ciding which is the best evidence” and that “[a] juror may believe or disbelieve all or any part of the evidence or the testimony of any witness.” Fla. Std. Jury Instr. (Crim.) 14-15.

The State responds that “the innocuous instruction merely explains the value and function of the oath given to witnesses” and contends that the added language is “a correct statement of the law” and “not covered elsewhere in the instructions.”

During the charge conference at the end of the trial, this language was discussed:

Mr. Sanders [Fella]: Is that “you should attempt to resolve any conflicts in the testimony without attributing untruthfulness to any witness” a standard?
The Court: A what?
Mr. Sanders: That’s a standard?
Mr. Tchividjian: Mm-hmm.
The Court: That’s my standard. That’s not in this book. I’ve give[n] that for 18 years.
Mr. Sanders: I’d rather not have it.
The Court: Well, I’d like — I’d love an opportunity for the Fifth to look at it, because it came from Warren Cobb.
Mr. Tchividjian: Let’s just keep it.
The Court: I’ve given it for 18 years.
Mr. Sanders: Well, I like Judge Cobb’s opinions, but I still don’t like this instruction.
The Court: Well, all that — that instruction, in my opinion, is simply the instruction that you have to respect the oath unless you have a reason not to, the oath of a witness to tell the truth.
Mr. Sanders: I understand that this case -
Mr. Tchividjian: Then I would take out that entire paragraph.
Mr. Sanders: That’s what I’m talking about. The whole, “you should attempt to resolve” all the way down through -
Mr. Tchividjian: I think we should keep it. I think the jury should attempt to resolve the conflicts.
Mr. Sanders: All right.
The Court: It’s accurate.
Mr. Sanders: Well, if I object are you going to leave it in anyway?
The Court: Yeah.
Mr. Sanders: Okay. I object.
The Court: Okay.

Although the trial court attributed the added language to Judge Cobb, it appears that the trial court may have been referencing a footnote in Judge Cowart’s dissent in Guy v. Right, 397 So.2d 402 (Fla. 5th DCA 1981):

All witnesses are presumed to speak the truth. Indulgence in this presumption casts a duty on all men of good will, judges and jurors alike, to construe and reconcile spoken and written words so as to avoid conflict between witnesses whenever it is possible and reasonable to do so.

397 So.2d at 404 n. 2 (Cowart, J., dissenting). But cf. Maurer v. State, 668 So.2d 1077, 1079 (Fla. 5th DCA 1996) (“A judge acting as fact-finder is not required to believe the testimony of police officers in a suppression hearing, even when that is the only evidence presented; just as a jury may disbelieve evidence presented by the state even it is uncontradicted, so too the judge may disbelieve the only evidence offered in a suppression hearing.”).

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Related

Maurer v. State
668 So. 2d 1077 (District Court of Appeal of Florida, 1996)
State v. DiGuilio
491 So. 2d 1129 (Supreme Court of Florida, 1986)
Brownlee v. State of Florida
116 So. 618 (Supreme Court of Florida, 1928)
Jacksonville Electric Co. v. Sloan
52 Fla. 257 (Supreme Court of Florida, 1906)
Atlantic Coast Line Railroad v. Beazley
54 Fla. 311 (Supreme Court of Florida, 1907)
Guy v. Kight
397 So. 2d 402 (District Court of Appeal of Florida, 1981)

Cite This Page — Counsel Stack

Bluebook (online)
754 So. 2d 165, 2000 Fla. App. LEXIS 3756, 2000 WL 332617, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fella-v-state-fladistctapp-2000.