Martinez v. State

125 So. 3d 985, 2013 WL 3197139, 2013 Fla. App. LEXIS 10069
District Court of Appeal of Florida·Decided June 26, 2013·No. No. 4D11-4780·Published·Cited by 3 cases

Opinion

LEVINE, J.

The issues presented for our review are whether the trial court erred in allowing the state, during a criminal prosecution, to question witnesses and argue in closing argument that appellant had hired a law firm to file a civil suit related to the incident for which appellant was arrested. We find, specifically, that the trial court erred in allowing the state to question a doctor, testifying for appellant, as to whether appellant had hired a civil attorney to file a lawsuit. We further find that the error was not harmless, as it was compounded by the questioning of appellant’s wife as to whether appellant had hired a civil attorney and the state’s references in closing argument to appellant “gearing up for a lawsuit.” We, therefore, reverse appellant’s conviction and sentence for resisting an officer with violence.

Appellant’s wife called paramedics due to appellant not breathing and being unresponsive. A paramedic arrived and saw [987]*987appellant lying on Ms stomach and beginning to wake up. The paramedic asked appellant whether he was okay. After initially appearing confused, appellant started screaming and then began to approach the paramedic as if ready to fight. The paramedic testified that appellant was “standing and squaring off, clenched fist, irate, angry, mad.” The paramedic motioned for his crew to stay back from appellant.

Meanwhile, a patrol officer from the Pembroke Pines Police Department arrived as a result of a call regarding an unresponsive male. The officer asked appellant for his name and asked appellant to calm down, but appellant did not respond. Appellant was “all over the room” and put his hands on the officer’s shoulder, as well as the shoulder of another officer who was present. After' appellant ripped off the closet doors and began to search through the drawers in the closet, one officer decided to handcuff appellant for officer safety. The officer handcuffed one of appellant’s wrists and blocked punches from appellant’s other hand.

Appellant violently swung his arms back and forth towards the officer, who was struck while on the ground. At this point there was blood on the floor, which had come from the officer’s head. Appellant ran out of the room and the other officer chased appellant with her gun drawn. This officer commanded appellant to get down and appellant shook his head “no.” Appellant ran into the kitchen, still agitated, and then started to come back toward the officers. One of the officers then fired a shot into appellant’s abdomen. Appellant tried to get up but the officer pushed him back to the ground. Appellant was tased several times and it took multiple officers to subdue him. Appellant was charged with battery on a law enforcement officer and resisting an officer with violence.

At trial, a neurologist, Dr. Cutler, testified for the defense. The neurologist stated that appellant had a seizure that day, and a person who had just had á seizure would respond poorly to commands, and may act confused, aggressive, combative, and agitated.

The following cross-examination of Dr. Cutler was elicited by the state:

Q. So again, getting back to that first visit of his, July 8th, 2010, [appellant] was referred to you by an individual named Mr. McDonald, is that correct?
A. Yes.
Q. Do you know that individual’s full name?
A. It says here David McDonald.
Q. Is that the law firm of McClusky and McDonald?
A. Yes.
Q. That person is not in the courtroom today; is he, Mr. McDonald?
A. I don’t know.
Q. He has referred people to you in the past; hasn’t he?
A. He may have.
Q. He is a civil attorney?
A. I don’t know sir. I don’t know him very well.
Q. You are not sure if he has referred people to you in the past?
A. I’m not sure.
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Q. Would looking at a copy of your deposition refresh your recollection, regarding whether you had patients referred from Mr. McDonald in the past?
A. It may help, yes.
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A. I think basically what I said was that if I have seen patients for him, I [988]*988said it is possible but I really don’t know.
Q. Okay. Then do you have any personal knowledge as to whether Mr. McDonald was obtained as a civil attorney by [appellant]?

(emphasis added).

At this point, appellant objected to relevance. At sidebar, the state represented that appellant was suing the City of Pembroke Pines. The trial court overruled the objection, finding that the inquiry was relevant to Dr. Cutler’s credibility.

Upon further questioning, Dr. Cutler testified that he did not know for sure whether Mr. McDonald was retained as a civil attorney by appellant. Dr. Cutler stated that “someone else” could be making payment on appellant’s behalf, but stated he had no idea where money was coming from for payment for his time.

During the testimony of appellant’s wife, the state on cross-examination asked whether appellant had been referred to Dr. Cutler by Mr. McDonald. The state further asked appellant’s wife, “[D]o you know if your husband has hired a civil attorney as a result of this?” Appellant objected on the grounds of relevancy and calling for speculation. The trial court overruled the objections with the qualification that appellant’s wife could answer if she knew. After appellant’s wife answered “[n]o,” appellant withdrew his objection.

Finally, the state made the following closing argument:

I submit to you that as soon as this happened, as soon as [appellant] got in trouble with the law, and perceived an injury to himself, he started thinking. How am I going to defend against this case, this criminal case, that I’m being charged with, and how am I going to get some money out of it.
We have some criminal defense attorneys that he has hired, and they have put on a defense.
However, you have also heard evidence from the doctor, from Dr. Cutler.
He didn’t seem to know a lot about it, but he did know that a Mr. McDonald, a civil attorney, referred [appellant]- to him.
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What the state would submit to you ... is it is a reasonable inference for you to draw that putting aside whether or not Dr. Cutler is a biased or interested witness.
That what is really at play here is [appellant] is gearing up for a civil lawsuit against the City of Pembroke Pines.
It is a reasonable inference for you to draw that the City of Pembroke Pines has money. We have heard from [appellant’s] wife that at that time he was out of a job.

The state conceded that it was reasonable for the jury to infer that appellant did in fact suffer from some sort of a disorder.

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Martinez v. State, 125 So. 3d 985, 2013 WL 3197139, 2013 Fla. App. LEXIS 10069 (Fla. Ct. App. 2013).

125 So. 3d 985 (Martinez v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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