Mariano v. State

933 So. 2d 111, 2006 WL 1476171
CourtDistrict Court of Appeal of Florida
DecidedMay 31, 2006
Docket4D04-1852
StatusPublished
Cited by20 cases

This text of 933 So. 2d 111 (Mariano 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
Mariano v. State, 933 So. 2d 111, 2006 WL 1476171 (Fla. Ct. App. 2006).

Opinion

933 So.2d 111 (2006)

Frank R. MARIANO, Jr., Appellant,
v.
STATE of Florida, Appellee.

No. 4D04-1852.

District Court of Appeal of Florida, Fourth District.

May 31, 2006.
Rehearing Denied August 3, 2006.

*113 Carey Haughwout, Public Defender, and Paul E. Petillo, Assistant Public Defender, West Palm Beach, for appellant.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.

WARNER, J.

Appellant, Frank Mariano, Jr., appeals his conviction of one count of attempted second degree murder of his former girlfriend. Because the court erroneously (1) allowed impeachment of appellant on an irrelevant collateral matter and (2) admitted hearsay statements under the excited utterance exception to the hearsay rule, we reverse.

Around 4:30 a.m. on September 13, 2003, Deputies Brochu and Rice observed a vehicle drive by with the passenger door open. Brochu saw a female, whom he identified as Ann Schaab, Mariano's former girlfriend, waving and screaming, and trying to jump out of the vehicle. Brochu directed Rice to pursue the vehicle. Rice turned on the patrol car lights, and the vehicle pulled over. At that point, Brochu and Rice saw Mariano and Schaab struggling in the front seat. Brochu saw Mariano hitting Schaab.

The two deputies approached the vehicle and saw that Mariano was holding a knife. Brochu drew his gun and ordered Mariano to open his door. Mariano refused, and Brochu found that the door was locked. Brochu ordered Schaab to exit the vehicle, which she did. Brochu then broke the car window with his baton and opened the door. He ordered Mariano to drop the knife, which he immediately did. He then held Mariano at gun point while Rice talked with Schaab.

Deputies Porcelli and Siemer also arrived at the scene and assisted in removing Mariano from the car and handcuffing him. Mariano had a gaping cut on his neck and needed to be airlifted to the hospital.

Deputies Rice, Brochu, and Porcelli all testified that they spoke to Schaab at the scene at different times. All three deputies testified to the same explanation of events relayed to them by Schaab. She told them that while she was driving a drunken Mariano back to his residence, they got into an argument. Mariano took over driving the car and began looking for an isolated spot along the road, saying that if he could not have her, then no one would. He had a knife with him.

In addition, the state called Mariano's sister, Lorindo Chapman, who testified that a hysterical Schaab called her between 5:00 and 6:00 a.m. to tell her what had occurred. Schaab related the evening's events and told Chapman that Mariano tried to stab her and threatened to run her down. This was the only specific threat evidence introduced.

On the defense case, both Mariano and Schaab testified to a series of events that minimized Mariano's culpability. They explained that they had a twenty-year relationship, but prior to the incident in this case, they had separated. Schaab wanted the separation because she was dating someone else. On the evening of the incident, Mariano came over to Schaab's home. While he was there, Schaab's new boyfriend called. Mariano, who had been drinking, became very distraught and said that he was going to kill himself. Finally, Mariano asked Schaab to take him home, and she agreed.

While Schaab was driving, Mariano took out a knife and told Schaab that he was going to kill himself. He told her that if he could not have her, he did not want to live. At this point, Mariano wanted to *114 drive so Schaab climbed over him and let him drive. She then saw a police car and opened her door so that she could flag it down to try to prevent Mariano from killing himself. She testified that she yelled to the police, "he's [sic] got a knife, he's going to kill himself," but the police could not hear her.

Mariano and Schaab pulled over immediately when the police came behind them, and Schaab testified that she tried to open her door. At this point, Mariano reached over and shut the door because he did not want her to leave. When he reached over, the knife came close to Schaab and Schaab grabbed the knife, resulting in the cut to her two fingers. However, they both testified that he never pointed the knife at her. Additionally, they both denied that they were ever struggling in the car.

When Schaab was about to exit the vehicle, she looked over at Mariano and saw him slash his neck. Mariano testified that because he wanted to sit there and die, he did not open his door for the police. He wanted to kill himself to show Schaab his love. When the police did open the door, he immediately dropped the knife. Mariano did not recall speaking to the police at this point, but he did remember getting into the helicopter to be airlifted.

Mariano was convicted by the jury of attempted second degree murder with a weapon. He was sentenced to fifteen years in prison and to pay a $5,000 fine. He appeals his conviction and sentence.

Impeachment with Evidence of a Collateral Matter

During cross-examination of Mariano, the state asked him if he had threatened Schaab's new boyfriend, to which he responded that he did not recall doing so. The state was then allowed to impeach him by making him read to the jury letters that he wrote to Schaab after the incident. These contained statements that, "I fear for his safety in time;" "[i]n which case he will pay, whichever the case, he will pay;" "I would hunt him to the end of the earth;" "h[e] has no idea who or what I am;" and "I never quit." We conclude that it was error for the court to have permitted impeachment with this evidence involving a collateral matter.

Where a witness is cross-examined concerning a collateral or irrelevant matter, the examiner is bound by the answer and may not subsequently impeach the witness by introducing extrinsic evidence to impeach the witness on that point. Caruso v. State, 645 So.2d 389, 394 (Fla.1994). "The test is whether the proposed [impeachment] testimony can be admitted into evidence for any purpose independent of the contradictions. There are two types of evidence that pass this test: (1) facts relevant to a particular issue; and (2) facts which discredit a witness by pointing out the witness' bias, corruption, or lack of competency." Dupont v. State, 556 So.2d 457, 458 (Fla. 4th DCA 1990).

In Dupont, the defendant was charged with battery based on a fistfight. His defense was self-defense. On cross-examination Dupont denied verbally threatening the victim in an elevator during a court recess of the trial. The state then presented rebuttal testimony to prove that the elevator threat took place.

On appeal, we held that admission of the rebuttal testimony was error because it was irrelevant as it occurred several months after the fistfight. We determined that the testimony was not reputation testimony relating to his character for truthfulness, nor did it relate to any issue in the case, as the defendant had not put his character trait for violence in issue. We reversed, finding that the admission was harmful because the case hinged on the credibility of the defendant. Similarly, in *115 Gelabert v. State, 407 So.2d 1007 (Fla. 5th DCA 1981), the fifth district held that evidence of collateral matters was inadmissible and not harmless, because it was evidence of bad character and a propensity toward violence.

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933 So. 2d 111, 2006 WL 1476171, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mariano-v-state-fladistctapp-2006.