Gonzalez v. State

777 So. 2d 1068, 2001 Fla. App. LEXIS 280, 2001 WL 37803
District Court of Appeal of Florida·Decided January 17, 2001·No. No. 3D00-745·Published·Cited by 3 cases

Opinion

SHEVIN, Judge.

Eduardo Oropesa Gonzalez appeals a vehicular homicide conviction. We reverse and remand for a new trial.

Gonzalez was charged with manslaughter stemming from the death of a pedestrian. At trial, the state’s theory was that the pedestrian died as a result of impact with Gonzalez’s vehicle. The defense theory was that the pedestrian died when he was struck by another vehicle and that this impact propelled the body onto Gonzalez’s automobile. The sole eyewitness to the incident gave conflicting accounts of the event at deposition and at trial. As a result, the case was a classic battle of the experts. Each party presented the testimony of an accident reconstruction expert who supported that party’s proposed theory of the case.

The state had originally listed Dr. Stephen Pustilnik, an associate medical examiner, who would testify regarding the autopsy report. Before trial began, the state sought to substitute Dr. Reinhard Motte for Dr. Pustilnik. Dr. Pustilnik had moved away from Miami. The state represented that Dr. Motte would testify about the autopsy report and the conclusions drawn therefrom, as Dr. Pustilnik would have done. Based on these representations, the substitution was accepted without objection.

However, contrary to the state’s representation, once Dr. Motte began to testify, he was questioned regarding terms of physics and how the pedestrian’s body would have moved pursuant to the laws of physics. Defense objection to the testimony was overruled. The prosecutor went on to provide Dr. Motte with different scenarios of how the accident could have occurred, and to ask for his expert opinion on those scenarios based on the laws of physics. The defense objection was again overruled.

On appeal, Gonzalez argues that the trial court abused its discretion in admitting this testimony from the medical examiner. We agree. The trial court allowed the state to substitute Dr. Motte for Dr. Pustilnik based on the state’s representation that the testimony of the former would be substantially the same as that of the latter — focusing on the content of the autopsy report. Disregarding its representation, the state then went on to elicit testimony from Dr. Motte on a whole new area that Dr. Pustilnik never testified to at deposition.

A trial judge has broad discretion in excluding testimony to avoid a “trial by ambush.” Office Depot, Inc. v. Miller, 584 So.2d 587, 589 (Fla. 4th DCA 1991). Pre-trial disclosure of witnesses eliminates “surprise and prevents trial by ambush.” Keller Indus. v. Volk, 657 So.2d 1200, 1207 (Fla. 4th DCA), revieio denied, 666 So.2d 146 (Fla.1995)(citing Binger v. King Pest Control, 401 So.2d 1310, 1314 (Fla.1981)). Unfortunately, that is just what occurred [1070] in this case. Without any prior warning or notice, the state’s expert was permitted to testify to new matters that were key to the state’s case without any warning or notice to the opposition. The admission of this testimony is inherently 'prejudicial. See Owens-Coming Fiberglas Corp. v. McKenna, 726 So.2d 361 (Fla. 3d DCA 1999).1 Here the state was permitted to present opinion on a totally unexplored and undisclosed topic for this witness. This was “tantamount to permitting an undisclosed adverse witness to testify.” Department of Health & Rehab. Servs. v. J.B., 675 So.2d 241, 244 (Fla. 4th DCA 1996). Florida’s courts have repeatedly discouraged this type of trial by ambush. See Barrett v. State, 649 So.2d 219, 221 (Fla.1994).

We also note that the error was not harmless. The defense was allowed one accident reconstruction expert, which it deemed sufficient. No doubt the defense was misled by the belief that the state, also, would call only one such expert. However, the doctor’s testimony was tantamount to allowing the state an additional expert in this area. The admission of such pivotal testimony undoubtedly swayed the jury and prejudiced Gonzalez. As a result of Dr. Motte’s unforeseen testimony, Gonzalez suffered manifest prejudice and was subjected to an unfair trial. A new trial is required.

We are not unmindful of Gonzalez’s argument regarding errors committed during the state’s closing argument., Gonzalez is correct when he asserts that the prosecution impermissibly related matters restricted by an in limine order. However, our disposition today makes it unnecessary to address this point on appeal.

In addition, we feel compelled to address a collateral issue that has the potential to recur at trial.

In this case, the state’s first argument concerning the issue upon which the case has been decided was that defense counsel had not properly preserved same for appellate review. This argument has been correctly rejected by the Court. Even if the state’s suggestion that defense counsel’s objection was either not a proper objection at all or too general to have preserved the issue, for the reasons which follow, this Court would nevertheless, under the circumstances of this case, be compelled to consider Gonzalez’s arguments on appeal.

The trial judge in this ease apparently has an established policy of allowing trial counsel to articulate objections by stating only the single word, “objection.” At one point in the trial the judge said: “Please no more speaking objections either side. I want to hear objection and both sides be quiet.” Shortly thereafter the court returned to the subject: “Counsel, just about two minutes ago I advised you all an objection is one word. I heard several from you [defense counsel] and I heard several from you [prosecutor]. No more. One word only.”2 During the course of the trial, the prosecutor and defense counsel made numerous objections. Of these, sixty-five complied with the judge’s instruction and consisted of the single word “objection,” without any mention of the grounds upon which they were based.3 On these occasions the trial judge ruled without hearing grounds or argument.

[1071] The trial judge was justifiably concerned about speaking objections. This Court recently recognized that such objections are improper and further observed that “they constitute nothing less than unauthorized communications with, the jury.” Michaels v. State, 773 So.2d 1230 (Fla. 3d DCA 2000). The trial court’s effort to curtail such objections is therefore understandable.

During the course of this trial, defense counsel on several occasions expressed his concern that his failure to explain the legal grounds for his objections could compromise Gonzalez’s appellate rights. Counsel’s concerns were also understandable. Florida law is very clear that “[i]n order to be preserved for further review by a higher court, an issue must be presented to the lower court, and the specific legal argument or ground to be argued on appeal or review must be part of that presentation if it is to be considered preserved.” Tillman v. State, 471 So.2d 32 (Fla.1985). The purpose of this rule is two-fold and was explained by the Florida Supreme Court as follows:

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Gonzalez v. State, 777 So. 2d 1068, 2001 Fla. App. LEXIS 280, 2001 WL 37803 (Fla. Ct. App. 2001).

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