Pate v. State

529 So. 2d 328, 1988 WL 77950
CourtDistrict Court of Appeal of Florida
DecidedJuly 29, 1988
Docket86-2161
StatusPublished
Cited by3 cases

This text of 529 So. 2d 328 (Pate 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
Pate v. State, 529 So. 2d 328, 1988 WL 77950 (Fla. Ct. App. 1988).

Opinion

529 So.2d 328 (1988)

Stephen PATE, Appellant,
v.
STATE of Florida, Appellee.

No. 86-2161.

District Court of Appeal of Florida, Second District.

July 29, 1988.

James Marion Moorman, Public Defender, and Stephen Krosschell, Asst. Public Defender, Bartow, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellee.

LEHAN, Judge.

Defendant was convicted and sentenced for sexual battery and kidnapping. He raises five issues on appeal. We reverse and remand for a new trial on the first issue and briefly address the remaining four issues.

Defendant first contends that reversible error was committed when the trial court allowed the state to cross-examine the defendant concerning his giving of a false name and address during a prior D.U.I. arrest, his failure to appear in court on that *329 charge, and a separate sexual battery charge pending against defendant. We agree and reverse for a new trial.

The disputed questions on cross-examination were apparently prompted by two statements made by defendant on direct examination. Those two statements were (1) that he thought at first that the arrest for the current charges concerned his D.U.I. offense and (2) that the reason for his initial refusal to talk to the arresting officer was that the nature of the current charges scared him because he was "not normally accustomed to it." Although defendant did not explain then what it was he was not "normally accustomed" to, on cross-examination he said he meant he was not accustomed to being arrested for a serious crime.

As to the defendant's first statement which concerned his D.U.I. arrest, the state's questions about the arrest and related matters were entirely collateral and had the effect only of showing defendant's bad character. See Fulton v. State, 335 So.2d 280 (Fla. 1976); Finlay v. State, 424 So.2d 967 (Fla. 3d DCA 1983); Gelabert v. State, 407 So.2d 1007 (Fla. 5th DCA 1981).

As to defendant's second statement, on cross-examination the state asked defendant whether the current charges represented his first contact with police, whether defendant had been charged with a serious felony before, and whether defendant had twice been convicted, culminating in the questioning about the pending sexual battery charge. This entire line of questioning on the collateral matter of defendant's experience with police was improper. It was error to allow inquiry into defendant's past criminal history other than convictions. See Fulton; Gelabert; Dixon v. State, 426 So.2d 1258 (Fla. 2d DCA 1983); Sneed v. State, 397 So.2d 931 (Fla. 5th DCA 1981); Ragusa v. State, 338 So.2d 1103 (Fla. 4th DCA 1976).

We now respectfully address the position of the dissenting opinion in this case. That position appears to be that the questions on cross-examination were proper attempts to get defendant to contradict his false testimony on direct examination. That opinion does not precisely identify which testimony by defendant is thought to have been false and is therefore thought to have been subject to impeachment. But we assume that that testimony consists of the two statements set out above in the third paragraph of this opinion.

As to the first statement — that defendant thought his current arrest was for his D.U.I. offense — this cannot be said to have been a false statement and did not justify an attempt to impeach that testimony. Nor did the mere mention of the D.U.I. arrest open the door for the state to delve into the matters which followed that arrest, such as the failure to appear and the giving of a false birthdate.

As to the second statement, the state's questions concerning defendant's prior contact with police and prior arrests seemed to be an attempt to impeach the testimony that he was "not normally accustomed to it." But this testimony was so inherently imprecise that it is not susceptible of being called false and, therefore, impeachable. Also, even on the basis that defendant meant he was not normally accustomed to being arrested on serious charges, the statement cannot be said to be false. The two serious charges referred to by the state in its attempt to impeach this statement were the D.U.I. and the other pending sexual battery. However, the record does not conclusively show that the arrest for the other sexual battery occurred prior to the arrest in this case, and we do not conclude that the existence of the D.U.I. arrest rendered false defendant's statement that he was not "normally accustomed" to being arrested on serious charges. Even if we were to conclude (and we do not feel entitled to do so) that the other sexual battery arrest did occur prior to the arrest in this case, we still would not consider the state's questions to have been proper. See Ragusa. In that case, a question on cross-examination accusing defendant of criminal conduct was found to be reversible error and not proper to impeach defendant's prior statement that he was "not in the habit of breaking the law." *330 That prior statement was found not to have opened the door to that cross-examination.

Although, having reversed on the first issue, we need not address the remaining issues, we do so briefly since we are remanding for a new trial. Defendant's second contention is that hypnotically induced testimony was improperly admitted without proper safeguards. Defendant concedes that the prohibition against hypnotically refreshed testimony contained in Bundy v. State, 471 So.2d 9 (Fla. 1985), does not apply because that case stated that that prohibition would apply only to hypnosis sessions conducted after the date of that opinion. The session in this case was conducted prior to that date. Nonetheless, defendant contends that the safeguards contained in Brown v. State, 426 So.2d 76 (Fla. 1st DCA 1983), should apply. We disagree.

This case is similar to the first Bundy case, Bundy v. State, 455 So.2d 330, 339-343 (Fla. 1984), in that this case does not actually involve hypnotically-refreshed testimony. In this case, as in that case, the witness had given a description of the attacker prior to hypnosis, was not shown a picture of defendant before being hypnotized, and identified defendant when shown his picture some time after the hypnosis session. In neither case were significant facts recalled during hypnosis which contributed to the identification of the attacker. Accordingly, we find no error in admitting into evidence the victim's identification of defendant.

We do not address defendant's third issue on appeal concerning the trial court's failure to grant a continuance. That issue is moot in light of our reversal for a new trial.

Defendant's fourth issue raises various asserted errors not objected to below which he contends amount to fundamental error. It is not appropriate for us to anticipate whether there will be any such objections upon retrial or what the ruling of the trial court might be if there are, especially since the law governing these aspects does not appear to require clarification.

Defendant's final issue concerns an alleged error in the calculation of the sentencing guidelines scoresheet, which we need not address.

Reversed and remanded for a new trial.

FRANK, J., concurs.

CAMPBELL, C.J., dissenting with opinion.

CAMPBELL, Chief Judge, dissenting.

I must respectfully dissent in regard to the conclusion of the majority that appellant's conviction should be reversed on the basis of the first issue he raises in this appeal.

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529 So. 2d 328, 1988 WL 77950, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pate-v-state-fladistctapp-1988.