Wilcox v. State

39 Fla. Supp. 2d 36
CourtCircuit Court for the Judicial Circuits of Florida
DecidedFebruary 22, 1990
DocketCase No. 89-5-AM (County Court Case No. 89-10211 TT 42)
StatusPublished

This text of 39 Fla. Supp. 2d 36 (Wilcox v. State) is published on Counsel Stack Legal Research, covering Circuit Court for the Judicial Circuits of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wilcox v. State, 39 Fla. Supp. 2d 36 (Fla. Super. Ct. 1990).

Opinion

OPINION OF THE COURT

McNEAL, R., Circuit Judge.

Appellant, Cynthia Wilcox, appeals a judgment and sentence entered by the Lake County Court after a jury trial finding her guilty of Driving Under the Influence of Alcohol. Appellant complains that the court improperly prohibited cross-examination of two officers regarding [37]*37social contacts they had with her subsequent to the arrest and that the court improperly excluded extrinsic evidence of those contacts. The state argues that the evidence was properly excluded because it was irrelevant to the issue of appellant’s guilt and if the court was wrong, the error was harmless. We find that it was reversible error to exclude the evidence of contacts between appellant and Sergeant Jerry Chapel.

Appellant was arrested for Driving Under the Influence of Alcohol by a Leesburg Police Sergeant, Jerry Chapel, who observed her make a delayed stop at a red light. Officer Chapel required appellant to perform roadside sobriety tests that were observed by officer Peter Ahem. Then she was arrested and transported to the Lake County Jail for breathalyzer tests that resulted in readings of .12% and .13%. Appellant was released on her own recognizance.

Sergeant Chapel had social contacts with appellant after her arrest and before her trial. The first was at the police station where Sergeant Chapel and appellant discussed meeting at a local tavern to shoot pool. They had this discussion before he released her on her own recognizance.

The next contact was at the Post Time Lounge. Sergeant Chapel’s version of what happened is substantially different from appellant’s. Sergeant Chapel states that appellant approached him, embraced him and although apprehensive, he made a date with her. Appellant alleges that Sergeant Chapel told her he and Officer Ahem had been looking for her all evening in different lounges; that Sergeant Chapel followed her out to her car, embraced her and fondled her and she made a date with him in order to get away. This meeting was witnessed by a third party.

The next meeting was later that evening when Sergeant Chapel stopped by her home. Once again the versions of what happened are substantially different. Sergeant Chapel says that he had second thoughts about the date they had made and merely stopped by to break it in person. Appellant states that Sergeant Chapel, who had been drinking, invited her to breakfast, fondled her hair, held her hand and told her how badly he wanted to make love to her and only left after repeated requests. She also alleges that he hinted that the case against her would be “blown” if things went any farther, meaning he would blow the case if she established a relationship with him. This meeting was also witnessed by a third person. As a result of these contacts Sergeant Chapel was being investigated by the Leesburg Police Department at the time of trial.

Officer Ahern’s only contact with Appellant subsequent to her arrest [38]*38occurred when he left a note on her car inviting her to his home for dinner. Appellant did not respond to the invitation.

Appellee moved in limine to exclude all evidence regarding the contacts by Sergeant Chapel and Officer Ahem because the contacts were not relevant to the issue of whether appellant committed the offense of Driving Under the Influence. Appellant argued that while irrelevant to the issue of guilt, this evidence was admissible to impeach the offficers’ testimony. After considering a proffer, the trial court ruled that the evidence was irrelevant to the charge of Driving Under the Influence and granted the motion in limine.

Cross examination is the constitutionally guaranteed method of exposing bias, prejudice or motive of a witness. Defendant should be given a broad latitude on cross-examination to demonstrate bias or the possible motive of the witness to testify falsely. Davis v Alaska, 415 U.S. 308 (1974). Fla. Stat. § 90.608(1)(b) (1987) permits a party, except a party calling a witness, to attack the witness’ credibility by showing the witness is biased at the time the witness testifies. Also, a jury may consider any interest the witness may have in the outcome of the case when weighing the witness’ testimony. Fla. Std. Jury Instr. (Crim.) 2.04. See also Lavette v State, 442 So.2d 265 (Fla. 1st DCA 1983) (error to exclude evidence of witness’ drug use following offenses committed with defendant); Mendez v State, 412 So.2d 965 (Fla. 2d DCA 1982) (error to exclude evidence of officer’s prior suspensions for use of excessive force where defendant was charged with attempted second degree murder of the officer); Jones v State, 385 So.2d 132 (Fla. 4th DCA 1980) (error in possession of cocaine case to prohibit cross-examination about whether witness said that he was going to have the defendant killed); Holt v State, 378 So.2d 106 (Fla. 5th DCA 1980) (error to prevent inquiry into the details surrounding a grant of immunity to a prosecution witness); Cowheard v State, 365 So.2d 191 (Fla. 3d DCA 1978) (error to exclude evidence that witness was awaiting sentencing in federal court on an unrelated charge). Once a special motive to lie is established it colors every bit of the witness’ testimony. Azbill v Pogue, 534 F.2d 195 (9th Cir. 1976).

Furthermore, bias of a witness is not a collateral issue. Counsel is not required to accept the answer of a witness denying the acts establishing bias, but may introduce extrinsic evidence to prove that the witness has a motive to testify falsely. United States v Robinson, 530 F.2d 1076 (D.C. Cir. 1976); Brown v State, 362 So.2d 437 (Fla. 1978); Lusk v State, 531 So.2d 1377 (Fla. 2d DCA 1988); Gamble v State, 492 So.2d 1132 (Fla. 5th DCA 1986); Hair v State, 428 So.2d 760 (Fla. 3d DCA 1983).

[39]*39Whether to allow this evidence is not limited by Fla. Stat. § 90.609 (1987) relating to impeachment by reference to witness’ character or by Fla. Stat. § 90.610 (1987) relating to impeachment by conviction of certain crimes. These statutes prohibiting evidence of specific instances of misconduct do not apply to the evidence of bias or interest. For a good discussion of the relationship between the impeachment provisions of the evidence code, see Gelabert v State, 407 So.2d 1007 (Fla. 5th DCA 1981). Also, evidence tending to show bias is not limited by the scope of direct examination. Yolman v State, 469 So.2d 842 (Fla. 2d DCA 1985). The test is not whether the proffered evidence is relevant to the offense charged, but whether it is relevant to the witness’ bias or interest at the time he testifies.

We find that evidence of the post arrest contacts of Sergeant Chapel with the appellant were relevant to Sergeant Chapel’s possible bias against appellant at the time he testified and relevant to establish his interest in the outcome of the case. Improper conduct by a law enforcement officer with a defendant is a proper subject for cross examination, especially where a complaint has been made and the incidents are under investigation by internal affairs. A defendant has an absolute light

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Related

Davis v. Alaska
415 U.S. 308 (Supreme Court, 1974)
United States v. Garnell S. Robinson
530 F.2d 1076 (D.C. Circuit, 1976)
Gelabert v. State
407 So. 2d 1007 (District Court of Appeal of Florida, 1981)
Lavette v. State
442 So. 2d 265 (District Court of Appeal of Florida, 1983)
Gamble v. State
492 So. 2d 1132 (District Court of Appeal of Florida, 1986)
Mendez v. State
412 So. 2d 965 (District Court of Appeal of Florida, 1982)
Ciccarelli v. State
531 So. 2d 129 (Supreme Court of Florida, 1988)
Lusk v. State
531 So. 2d 1377 (District Court of Appeal of Florida, 1988)
Stripling v. State
349 So. 2d 187 (District Court of Appeal of Florida, 1977)
Frazier v. State
530 So. 2d 986 (District Court of Appeal of Florida, 1988)
Yolman v. State
469 So. 2d 842 (District Court of Appeal of Florida, 1985)
Cowheard v. State
365 So. 2d 191 (District Court of Appeal of Florida, 1978)
Jones v. State
385 So. 2d 132 (District Court of Appeal of Florida, 1980)
Brown v. State
362 So. 2d 437 (District Court of Appeal of Florida, 1978)
Rolle v. State
528 So. 2d 1208 (District Court of Appeal of Florida, 1988)
Hair v. State
428 So. 2d 760 (District Court of Appeal of Florida, 1983)
Holt v. State
378 So. 2d 106 (District Court of Appeal of Florida, 1980)
Kleinrichert v. State
530 N.E.2d 321 (Indiana Court of Appeals, 1988)

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Bluebook (online)
39 Fla. Supp. 2d 36, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wilcox-v-state-flacirct-1990.