Pierre v. State

990 So. 2d 565, 2008 WL 2744243
District Court of Appeal of Florida·Decided July 16, 2008·No. 3D06-2072·Published·Cited by 8 cases

Opinion

990 So.2d 565 (2008)

Olson PIERRE, Appellant,
v.
The STATE of Florida, Appellee.

No. 3D06-2072.

District Court of Appeal of Florida, Third District.

July 16, 2008.
Rehearing Denied September 10, 2008.

*567 Robert Finlay; Albert Guffanti, Miami, for appellant.

Bill McCollum, Attorney General, and Jerome Smiley, Jr., Assistant Attorney General, for appellee.

Before SUAREZ, ROTHENBERG, and LAGOA, JJ.

ROTHENBERG, J.

Olson Pierre ("the defendant") appeals his convictions and sentences for attempted first-degree murder with a firearm, armed burglary, and armed false imprisonment. We affirm.

Fedlet Oscar ("the victim") testified that on the night of November 7, 2004, upon exiting the shower, he was confronted by a man armed with a black-colored firearm, who forced him into his living room at gunpoint. The victim also saw a second man ("the co-defendant"), who was armed with an "off-polished chrome" firearm, talking to Jouan Dhaiti ("the victim's ex-girlfriend"). In response to the co-defendant's demand for drugs and money, the victim handed $350 and some crack cocaine to the co-defendant. The defendant and co-defendant chased him into a bedroom closet, and both men shot the victim repeatedly. The victim's younger brother, Bimby Oscar, was sitting on the living room couch throughout these events.

Santana Oscar, the victim's mother, testified that she was awakened by noises, and when she emerged from her bedroom, she saw an armed man pointing a handgun at the victim. The man placed a gun to her head and ordered her to return to her bedroom and to stay there. The victim's mother testified that she heard a series of gunshots and screaming. After being shot, the victim made his way to his mother. She called 911 and the victim was taken to the hospital. After the shooting, both the victim and the victim's mother positively identified the defendant from an array of photographs.

At trial, the defense theory was that the defendant was not present when these crimes were committed and that these *568 crimes were committed by an unnamed third person. Prior to the victim's testimony, the State moved in limine to preclude the defense from eliciting any testimony on cross-examination regarding whether the victim was a drug dealer. The trial court granted the motion after finding that the testimony was irrelevant, misleading, and barred by case law. Prior to cross-examination of the witness, defense counsel asked leave from the trial court to permit him to cross-examine the victim regarding his drug dealing on the theory that the victim had opened the door to this evidence during direct examination. The trial court denied the motion.

To dispute the defendant's alibi defense, the State, over objection by the defendant, elicited testimony from Detective Schuster, the lead detective, as to the distance between the defendant's residence and the crime scene, and the approximate time it would take to travel from one location to the other. During its re-direct examination, after defense counsel repeatedly referred to the photographs in the photo arrays as "mug shots" in cross-examination, the State asked Detective Schuster to explain what a "mug shot" was and asked her whether any of the photo arrays contained "mug shots." The defense objected and moved for a mistrial, but since defense counsel previously used the phrase on several occasions, the trial court denied the defendant's motion for a mistrial.

The jury found the defendant guilty of the attempted murder of the victim, armed burglary, and false imprisonment. The trial court sentenced the defendant to life imprisonment for the attempted murder and armed burglary convictions, and to fifteen years for the false imprisonment conviction, and imposed a twenty-five year mandatory minimum sentence pursuant to section 775.087(2)(a)3., Florida Statutes (2006).

The defendant argues in this appeal that he is entitled to a new trial because: (1) the trial court did not allow his attorney to cross-examine the victim regarding his background as a drug dealer; (2) the trial court impermissibly allowed Detective Schuster to testify as to the location of the defendant's home, and the distance and travel time from the defendant's home to the crime scene; (3) the trial court erred in denying his motion to suppress the photographic identifications; (4) he was prejudiced by Detective Schuster's reference to the photographs in the photo arrays as "mug shots"; (5) there was insufficient evidence presented at trial to support the convictions; and (6) he was denied meaningful appellate review due to the missing portions of the post-trial transcript. We find that the points raised on appeal, considered individually and collectively, do not constitute reversible error.

Cross-Examination of the Victim

On appeal, the defendant claims that the trial court impermissibly limited his cross-examination of the victim by not permitting defense counsel to question the victim about his background as a drug dealer. The defendant claims that this cross-examination was relevant to the victim's veracity and the defendant's defense that an unknown third party committed these offenses. Assuming that the objection was properly preserved for appellate review, we find that the trial court did not err in limiting defense counsel's cross-examination, as the evidence the defendant sought to introduce was an impermissible character attack, was outside the scope of direct examination, and was intended to inject a defense to the crime through cross-examination and with no evidentiary support.

The law is well-settled that "questions on cross-examination must either relate to credibility or be germane to *569 the matters brought out on direct examination." Steinhorst v. State, 412 So.2d 332, 337 (Fla.1982). Although the defendant argues on appeal that cross-examination of the victim regarding his "lifestyle" was relevant to the victim's veracity, this is not the argument raised below. More importantly, whether or not the victim was a drug dealer does not shed any light on the truthfulness of the victim's testimony. We, therefore, find that the trial court did not err when it concluded that cross-examination of the victim regarding his drug dealing lifestyle was an impermissible character attack, not impeachment. In Ruland v. State, 614 So.2d 537 (Fla. 3d DCA 1993), the defendant made a similar argument on appeal. The Ruland court was similarly unpersuaded, and concluded that:

The trial court did not err in excluding evidence of the victim's drug use and possession of drug paraphernalia at the time of the offense. Contrary to the defendant's argument, such evidence was not offered at trial to impeach the ability of the victim to recall and relate the events at issue in this case; it was instead offered to establish that the victim was a drug dealer or user, and, thus, was an impermissible attack on the character of the victim.

Id. at 538.

The defendant also argues that because the trial court limited cross-examination regarding the victim's history as a drug dealer, he was unable to develop a key defense—that a third party committed the crimes. We are not persuaded by this contention, either. First, our review of the record reflects that the defense theory, that an unknown third party was responsible for the crimes, was entirely speculative and was not supported by any record evidence.

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Pierre v. State, 990 So. 2d 565, 2008 WL 2744243 (Fla. Ct. App. 2008).

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