Pottgen v. State

District Court of Appeal of Florida

Pottgen v. State

616 So. 2d 1125, 1993 Fla. App. LEXIS 4419, 1993 WL 107062

CourtDistrict Court of Appeal of Florida

DecidedApril 13, 1993

DocketNo. 92-594

StatusPublished

Cited by1 cases

This text of 616 So. 2d 1125 (Pottgen 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.

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Pottgen v. State, 616 So. 2d 1125, 1993 Fla. App. LEXIS 4419, 1993 WL 107062 (Fla. Ct. App. 1993).

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Opinion

SCHWARTZ, Associate Judge.

Following our reversal of his conviction in Pottgen v. State, 589 So.2d 390 (Fla. 1st DCA 1991), Pottgen was again found guilty of disturbing the contents of a grave and now appeals from the resulting adjudication and sentence. We find no reversible error in any of the three evidentiary points presented.¹

In accordance with the previous opinion, 589 So.2d at 391, the trial judge, upon the state’s pre-trial motion, made a specific finding that the witness Fred Day, who disappeared after the first trial and whose testimony was therefore read into evidence at the second under section 90.804(l)(e), Florida Statutes (1989), was adverse to the state² for the purpose of admitting his prior inconsistent statements pursuant to section 90.608(2), Florida Statutes (1989). While the appellant’s first point claims error in this ruling, none of the arguments made below are pressed here and none of those raised on appeal were presented to the trial court. Because this is true, they are not even cognizable on appeal. Steinkorst v. State, 412 So.2d 332 (Fla.1982); Jones v. State, 452 So.2d 643 (Fla. 4th DCA 1984), rev. denied, 461 So.2d 116 (Fla.1985). In any event, our consideration of the issue, undertaken in an abundance of caution, reveals no error. See Pottgen 589 So.2d at 392; Wolcoff v. State, 576 So.2d 726 (Fla. 4th DCA), rev. denied, 583 So.2d 1038 (Fla.1991); Jackson v. State, 575 So.2d 181 (Fla.1991).

Second, there is nothing at all to the claim — which concerns .the state’s star witness, Rose Charland, who was also unavailable for retrial — that the admission of her former testimony in acknowledged conformity with section 90.804(l)(e) and the United States Constitution, somehow violated the confrontation clause of the Florida Constitution, article I, section 16. See Putnal v. State, 56 Fla. 86, 47 So. 864 (1908).

Finally, Pottgen complains that the state’s cross-examination of a defense witness erroneously implied that he had committed an offense of which the prosecutor had no direct evidence.³ See State v. Castillo, 486 So.2d 565, 565-66 (Fla.1986). It must be noted that the defendant untimely objected only after the entire series of questions was both asked and answered. See Schley v. State, 48 Fla. 53, 37 So. 518 [1127]*1127(1904). More important, the inquiry in question — even if arguendo improper — was surely “not so serious in the context of the case as a whole to vitiate the entire trial,” Gonzalez v. State, 511 So.2d 703, 704 (Fla. 3d DCA 1987), and thus require a mistrial, as the defendant sought below, or a new trial, as he demands here. See Duest v. State, 462 So.2d 446 (Fla.1985); Palmer v. State, 486 So.2d 22 (Fla. 1st DCA 1986). As the trial judge correctly indicated on the spot, the issue was not a “problem that rises to a mistrial.” In the absence of a request for a curative instruction, which would have sufficed to repair the alleged damage, we may not reverse on this point. Duest, 462 So.2d at 448; Williams v. State, 443 So.2d 1053, 1054 (Fla. 1st DCA 1984); Mabery v. State, 303 So.2d 369 (Fla. 3d DCA 1974), cert. denied, 312 So.2d 756 (Fla.1975).

Affirmed.

WIGGINTON and MICKLE, JJ., concur.

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SCHWARTZ, Associate Judge.

Following our reversal of his conviction in Pottgen v. State, 589 So.2d 390 (Fla. 1st DCA 1991), Pottgen was again found guilty of disturbing the contents of a grave and now appeals from the resulting adjudication and sentence. We find no reversible error in any of the three evidentiary points presented.¹

In accordance with the previous opinion, 589 So.2d at 391, the trial judge, upon the state’s pre-trial motion, made a specific finding that the witness Fred Day, who disappeared after the first trial and whose testimony was therefore read into evidence at the second under section 90.804(l)(e), Florida Statutes (1989), was adverse to the state² for the purpose of admitting his prior inconsistent statements pursuant to section 90.608(2), Florida Statutes (1989). While the appellant’s first point claims error in this ruling, none of the arguments made below are pressed here and none of those raised on appeal were presented to the trial court. Because this is true, they are not even cognizable on appeal. Steinkorst v. State, 412 So.2d 332 (Fla.1982); Jones v. State, 452 So.2d 643 (Fla. 4th DCA 1984), rev. denied, 461 So.2d 116 (Fla.1985). In any event, our consideration of the issue, undertaken in an abundance of caution, reveals no error. See Pottgen 589 So.2d at 392; Wolcoff v. State, 576 So.2d 726 (Fla. 4th DCA), rev. denied, 583 So.2d 1038 (Fla.1991); Jackson v. State, 575 So.2d 181 (Fla.1991).

Second, there is nothing at all to the claim — which concerns .the state’s star witness, Rose Charland, who was also unavailable for retrial — that the admission of her former testimony in acknowledged conformity with section 90.804(l)(e) and the United States Constitution, somehow violated the confrontation clause of the Florida Constitution, article I, section 16. See Putnal v. State, 56 Fla. 86, 47 So. 864 (1908).

Finally, Pottgen complains that the state’s cross-examination of a defense witness erroneously implied that he had committed an offense of which the prosecutor had no direct evidence.³ See State v. Castillo, 486 So.2d 565, 565-66 (Fla.1986). It must be noted that the defendant untimely objected only after the entire series of questions was both asked and answered. See Schley v. State, 48 Fla. 53, 37 So. 518 [1127]*1127(1904). More important, the inquiry in question — even if arguendo improper — was surely “not so serious in the context of the case as a whole to vitiate the entire trial,” Gonzalez v. State, 511 So.2d 703, 704 (Fla. 3d DCA 1987), and thus require a mistrial, as the defendant sought below, or a new trial, as he demands here. See Duest v. State, 462 So.2d 446 (Fla.1985); Palmer v. State, 486 So.2d 22 (Fla. 1st DCA 1986). As the trial judge correctly indicated on the spot, the issue was not a “problem that rises to a mistrial.” In the absence of a request for a curative instruction, which would have sufficed to repair the alleged damage, we may not reverse on this point. Duest, 462 So.2d at 448; Williams v. State, 443 So.2d 1053, 1054 (Fla. 1st DCA 1984); Mabery v. State, 303 So.2d 369 (Fla. 3d DCA 1974), cert. denied, 312 So.2d 756 (Fla.1975).

Affirmed.

WIGGINTON and MICKLE, JJ., concur.

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616 So. 2d 1125, 1993 Fla. App. LEXIS 4419, 1993 WL 107062, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pottgen-v-state-fladistctapp-1993.

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