Holmes v. State

557 So. 2d 933, 1990 Fla. App. LEXIS 1377, 1990 WL 20398
District Court of Appeal of Florida·Decided March 8, 1990·No. No. 89-833·Published·Cited by 1 cases

Opinion

GRIFFIN, Judge.

This is the appeal of a conviction of sexual battery using physical force and violence not likely to cause serious personal injury.

The victim and principal witness was a 25 year old female who testified that she was a lifelong Orlando resident and that she worked as a receptionist. She also testified she was a student at Seminole Community College working on her Associate of Arts degree.1 On May 28, 1988, the victim attended a party at an apartment complex managed by her brother’s girlfriend. There she met Steven Wallace, a construction worker, to whom she was attracted. They went to his apartment to talk and smoke marijuana. An acquaintance of the construction worker, appellant Holmes, came to the apartment and brought crack cocaine, which they also smoked. Later, all three traveled to an apartment owned by Wallace’s parents where they stayed for the remainder of the evening. At one point in the evening, Wallace left to get more cocaine. The victim alleged that while Wallace was away the appellant forced her to have sex with him.

Appellant has raised three issues on appeal, only one of which warrants discussion. Appellant contends that the trial court erred in withholding the current address and place of employment of the victim in violation of his rights under the Sixth and Fourteenth Amendments to the United States Constitution. For the reasons set forth below, we affirm.

Appellant was arrested shortly after the crime and bond was set by the court on June 10, 1988. Filed with the court on the same day as the bond hearing was an affidavit of the victim which stated in pertinent part:

Wink [Ernesto Holmes], the man who raped me, threatened my life before he raped me. He said he wasn’t afraid of the police and he had people who would come after me. I am afraid of him, and I do believe he’ll seek revenge on me for reporting what he did to me to the police (emphasis added).

Appellant posted bond, which was subsequently increased on motion of the state because appellant violated the original bail order. Appellant failed to appear for the trial as scheduled on October 17, 1988, was subsequently rearrested and trial was rescheduled for February 20, 1989.

On February 10, 1988, appellant’s counsel took the victim’s deposition, during which she refused to disclose her current residence address and the address and name of her current employer.2 On Febru[935]*935ary 16, appellant’s counsel filed a Motion to Compel Disclosure. The state filed a written response objecting to disclosure on the ground that appellant “has committed a violent and sadistic sexual attack on the victim, and the victim (as well as the State) fears that disclosure of her address would place her safety in jeopardy should the Defendant be released or escape from confinement”. The state further alleged that the appellant’s rights to discovery had not been hampered in any way by not knowing the victim’s present home or work address.

The motion to compel was not heard until the matter was called for trial on February 20, 1989. During the course of argument, the assistant state attorney mentioned that he had just observed that there were four pieces of paper in the court file that contained the victim’s address and which had evaded his notice. The court ordered these address references “stricken” and instructed counsel for appellant, as an officer of the court, not to use any of the address information. During the course of cross-examination of the victim, counsel for appellant asked no questions of the victim designed to elicit testimony concerning her present or past places of residence.

Appellant contends that the lower court’s refusal to require disclosure of the current residence address and place of employment of the victim constituted an improper deprivation of his constitutional rights under the Sixth and Fourteenth Amendments to confront and cross-examine his accuser. Especially where, as in the present case, there was no independent physical evidence of the alleged sexual contact, the credibility of the victim was crucial and the court could not abridge the appellant’s right to know her current address and place of employment. Appellant argues that it is a fundamental right of an accused to be able to “put the witness in his place.”

There is no question that the appellant usually is entitled to address and employment information. In Smith v. Illinois, 390 U.S. 129, 88 S.Ct. 748, 19 L.Ed.2d 956 (1968), the United States Supreme Court applied a Sixth and Fourteenth Amendment analysis to a situation where a prosecution witness was allowed by the trial court to use a false name and to withhold his residence address. The Court, relying on its earlier decision in Alford v. United States, 282 U.S. 687, 51 S.Ct. 218, 75 L.Ed. 624 (1931), reversed the conviction, stating:

[W]hen the credibility of a witness is in issue, the very starting point in “exposing falsehood and bringing out the truth” through cross-examinatibn must necessarily be to ask the witness who he is and where he lives. The witness’ name and address open countless avenues of in-court examination and out-of-court investigation. To forbid this most rudimentary inquiry at the threshold is effectively to emasculate the right of cross-examination itself.

Smith, 390 U.S. at 131, 88 S.Ct. at 750.

In 1977, the Supreme Court of Florida considered a related question in State v. Hassberger, 350 So.2d 1 (Fla.1977).3 The court noted that a “significant number” of federal and state courts have held that, “Smith and Alford notwithstanding, where there has been some real threat to the personal safety of the witness because of his willingness to testify in that proceeding, the present address of the witness may be withheld from the defendant as long as the cross-examination is otherwise vigorous, full and effective”. Id. at 4. In Hass-berger, the Florida Supreme Court accepted the “personal safety” exception to the general requirement of disclosure of true identity and address of a witness; however, the court cautioned that the “personal safety” exception is an “exceedingly narrow one” and that all doubts must be re-' solved in favor of the accused’s Sixth and Fourteenth Amendment right to confront the witnesses against him. Id. at 5. Un[936]*936der the facts in Hassberger, the court found that it was error to withhold the true name of the witness. As to the address, the court stated:

Nothing appears in the record by which a reviewing court can determine whether the threat of the witness’ safety was sufficient to overcome the defendant’s interest in the disclosure of the address of the witness.

Id. at 5.

In Hassberger, the supreme court approved the procedure adopted in the case of United States v. Palermo, 410 F.2d 468 (7th Cir.1969), which it observed had been “widely accepted in dealing with this problem”. 350 So.2d at 4. First, an actual, not implied, threat to the witness or his family must be shown. Second, the government must disclose to the judge in camera

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Holmes v. State, 557 So. 2d 933, 1990 Fla. App. LEXIS 1377, 1990 WL 20398 (Fla. Ct. App. 1990).

557 So. 2d 933 (Holmes v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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