Opinion
No. 1D21-3494
07-05-2023
Patrick O'Neal MCCALL Jr., Appellant, v. STATE of Florida, Appellee.
Jessica J. Yeary, Public Defender, and Richard M. Bracey III, Assistant Public Defender, Tallahassee, for Appellant. Ashley Moody, Attorney General, and Zachary F. Lawton, Assistant Attorney General, Tallahassee, for Appellee.
Jessica J. Yeary, Public Defender, and Richard M. Bracey III, Assistant Public Defender, Tallahassee, for Appellant.
Ashley Moody, Attorney General, and Zachary F. Lawton, Assistant Attorney General, Tallahassee, for Appellee.
B.L. Thomas, J. Appellant challenges his judgment and sentence for aggravated battery on a pregnant woman, a second-second degree felony, pursuant to section 784.045 (1)(b), arguing the trial court abused its discretion on four separate grounds. We reverse because the trial court erred in refusing to allow Appellant to recall the State's key witness for further cross-examination to lay the foundation for impeachment of critical earlier testimony.
The woman pregnant with Appellant's baby testified that on the date of the incident she was in a relationship with Appellant. When asked to identify him in court, she equivocated, indicating that she normally wears glasses. She testified on the day of the incident they were waiting at a bus stop to go to an ultrasound appointment to determine the baby's sex. She indicated she argued with Appellant when she saw his ex-girlfriend was texting him. She said she tried to grab the phone and ended up hitting herself in the head. She indicated Appellant was moving his hands while trying to calm her down but he did not hit her. She recalled Andrea Davis arriving, and she told Davis she did not want to talk and walked away, as Davis called police.
Andrea Davis testified that she was driving with her four children when her son said a man was beating up a woman. Davis parked and "saw a [pregnant] young lady sitting at a bus stop being hit by a young man." The woman was being struck in the upper part of her body. Davis could not clearly see where the hits were landing but saw the "action of the hits he was throwing at her." Davis confronted the man, when "he had his fist drawn back like he was fixin’ to punch her in the stomach," telling him that if he hit the woman, Davis "was going to bust his head." Davis called the police and the 911 call was admitted into evidence and published to the jury.
During that call, Davis requested the operator to send someone, "because me and my kids literally just watched this (indiscernible) beat the hell out this girl, she about nine months pregnant. He even grabbed her around her waist and bust her in her face." Davis also stated:
I got into it with him. I made him take his hands off of her. He was fixing to beat the hell out of her. He was still beating her. And I jumped out my car and I said, Get your damn hands off of her. Don't hit her again. He went off on me, and I told him, I'm not the one. I done been through that before. I will shank a man about beating on a woman. He was beating the hell out this girl, and she was sitting down, they were at the bus stop, and she's pregnant.
On cross examination, defense counsel asked about Davis's vantage point, since the victim was sitting down and Appellant was standing in front of her obscuring the view from the street. However, counsel did not ask Davis if she had ever told anyone that she did not see the incident and Davis was excused from the stand.
Alachua County Deputy Sheriff Caroline Whittington testified that she was dispatched to the bus stop. She found the victim crying and holding her face.
Elisia Carter testified the pregnant witness and Appellant left her apartment near the bus stop on the date of the incident. Ten to fifteen minutes after the couple left her apartment, the witness called Carter, crying and slurring her speech. Carter testified the witness told her Appellant had hit her and said, "I can't do this no more."
Both Carter and Davis testified in jail clothes having been arrested for failing to appear at Appellant's first trial date a month earlier. Carter testified that Appellant had contacted her and indicated she did not need to come to court, because the victim had recanted. Carter then relayed that information to Davis.
After the State rested, Carter was called again in the Defense's case-in-chief. She testified that she had seen the pregnant witness before and after the incident that day and she had no bruises, marks, or cuts. Carter also testified that she was in the same pod at the jail with Ms. Davis. Defense counsel asked if Carter had heard Davis making statements to other inmates, which drew a hearsay objection. Defense Counsel argued it was impeachment evidence, because Carter had overheard Ms. Davis saying she did not see anything. The trial court sustained the objection.
Defense counsel attempted to recall Davis to ask her if she made a statement to anyone at the jail about her testimony. The trial court asked if defense counsel was recalling a witness "just for the sole reason of setting up what you didn't ask before? So you can try to impeach it?" Defense counsel reiterated that it was to lay the predicate for impeachment. The court denied the request, stating "we are not going to recall Ms. Davis solely to set up that question to then try to impeach it with Ms. Carter."
On proffered examination, Ms. Carter testified she overheard Ms. Davis having conversation with some of the other inmates about the case and what she had observed. Carter was asked about the statement and answered:
A: [Davis] was talking about the case. She had stated that she did not see what happened, that her 10-year-old son said, and I quote, He's beating the hell out of her, is what the 10-year-old said ....
Q: ... But I'm talking about [Davis] made the unequivocal statement that she did not see the incident, her son told her?
A: Right.
Q: And you heard that?
A: Yes.
Ms. Davis was then called to proffer testimony. She was asked:
So in the jail, in the Alachua County jail, when you and Ms. Carter were incarcerated on these warrants, did you say to other people in the jail that you didn't actually see what happened, but your son told you he's beating the hell out of her?
Davis responded, "Absolutely not."
The trial court did not change its earlier ruling. The jury returned a verdict of guilty as charged and Appellant was sentenced to fifteen years in the Department of Corrections, as a prison releasee reoffender, pursuant to section 775.082(9), Florida Statutes.
Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is first afforded an opportunity to explain or deny the prior statement. § 90.614(2). Appellant sought to recall Davis for further cross-examination in order to confront her with the inconsistent statement.
At trial and here, the State's sole argument is that it is improper to call a witness ‘merely as a device to place the impeaching testimony before the jury,’ citing Curtis v. State , 876 So. 2d 13, 20 (Fla. 1st DCA 2004). However, that argument is not persuasive, because Appellant was not attempting to call a witness whose only testimony would be offered as a means to bring in impeachment evidence. Instead, Appellant was attempting to reopen cross-examination in order to impeach the witness's prior testimony.
It is widely accepted in Florida and elsewhere that "it is an abuse of discretion for the trial court to deny a request to recall a witness if the denial will deprive the defendant of an opportunity to present evidence crucial to the defense." 98 C.J.S. Witnesses § 443 (citations omitted):
The matter of recalling witnesses rests in the discretion of the trial court. The court may limit the scope of the examination of a recalled witness, and it is not necessary for the court to recall a witness on a collateral matter or where the testimony would be repetitious. However, it is an abuse of discretion for the trial court to deny a request to recall a witness if the denial will deprive the defendant of an opportunity to present evidence crucial to the defense.
A witness may be recalled for either direct or cross-examination, for the purpose of impeachment[.]
Id. (citations omitted).
"[T]he right to recall witnesses to lay the predicate for impeachment is not absolute but such right rests in the discretion of the trial Court." Hahn v. State , 58 So. 2d 188, 191 (Fla. 1952) (citations omitted); see also Hoskins v. State , 70 Fla. 186, 69 So. 701 (1915).
In Hahn , as is the case here, the witness was excused after cross-examination without laying the predicate to impeach his statement. Id. at 189. The supreme court found the trial court abused its discretion in denying the request to recall the witness because "[i]t was crucial to defendant's case that he be permitted to recall [the witness] to lay the predicate for controverting his [account of the crime] already in evidence." Id. at 190.
In reaching its conclusion in Hahn , the supreme court relied on Johnson v. State , 55 Fla. 46, 46 So. 154 (1908), which again addressed the issue here: the refusal to permit the recalling of a State witness in order to lay the foundation for impeachment. The supreme court cited a number of cases and noted:
These cases, while recognizing a large discretion in the trial courts in the matter of relaxing the rules of evidence, are instructive, in that they assert the larger law that furtherance of justice should be the guide for courts, rather than the blind following of rules of convenience that may have been adopted from time to time as more likely to bring about the main object of all courts—to see that justice is administered under the forms of law.
Id. at 155.
The only authority offered by the State in support of its position is taken out of context and actually supports Appellant's argument. As part of the analysis in Curtis v. State , this Court noted the general rule that although a witness may be impeached by any party, including the party calling the witness, "it is still improper under Florida law for a party to call a witness merely as a device to place the impeaching testimony before the jury." 876 So. 2d 13, 20 (Fla. 1st DCA 2004) (citations omitted). In Curtis , the defendant sought to introduce a third-party confession of a man who had been acquitted of the murder for which the defendant was now standing trial. Id. at 15. The trial court would not allow the confession, because the declaration against penal interest exception to the hearsay rule is only applicable where the declarant is unavailable. Id. at 18–19. But this Court pointed out that Curtis would have been precluded from calling the declarant, because he would be called solely to impeach him with his earlier confession. Id. at 20. Additionally, and more importantly, Curtis stands for the proposition that "[i]n some cases, judges have a duty to admit evidence that does not fit neatly within the confines of the Evidence Code in order to protect the defendant's right to a fair trial." Id. at 19. This Court reversed the conviction because the exclusion of the confession, a critical piece of evidence, denied Curtis his constitutional right to a fair trial. Id. at 23.
In Hogle v. Lowe's of Florida, Inc. , 591 So. 2d 1095, 1096 (Fla. 1st DCA 1992), this Court noted:
An abuse of discretion has been found in various circumstances involving the refusal to permit additional evidence. See e.g., Buckingham v. Buckingham, 492 So. 2d 858 (Fla. 1st DCA 1986) ; Bieley v. Bieley, 398 So. 2d 932 (Fla. 3d DCA), rev. denied, 411 So. 2d 380 (Fla. 1981) ; Akins v. Taylor, 314 So. 2d 13 (Fla. 1st DCA 1975). In the present case the appellant asked to reexamine the appellee's sales manager after this witness presented testimony at trial which differed from the witness’ deposition answers regarding who might have used the cutting tool. This was extremely important testimony, as the appellee's knowledge and control of the tool's location were crucial aspects of the appellant's case.
Under those circumstances, this Court concluded "that the court abused its discretion in declining to permit the appellant to reexamine the witness." Id.
Here, Davis was the only witness who provided direct evidence that a battery occurred. The victim testified a battery did not occur. Carter indicated both that the victim had told her Appellant hit her and that the victim had recanted. No one testified to observing injuries. Carter testified the victim looked fine, that she had no marks on her face, although Carter was impeached with an earlier statement that the victim's face was red. Accordingly, whether Davis was telling the truth when she testified she actually saw the incident was crucial to Appellant's defense. Excluding the crucial impeachment evidence was therefore an abuse of discretion. See Johnson, supra.
An error cannot be harmless if guilt is not established by the evidence unrelated to the error. Thorne v. State , 271 So. 3d 177, 185 (Fla. 1st DCA 2019). In Thorne , this Court noted that errors may be "deemed harmless where the defendant's guilt was established by evidence unrelated to the error, even where the court did not deem that properly admitted evidence to be ‘overwhelming.’ " Id. (citing Bradley v. State , 214 So. 3d 648, 656 (Fla. 2017) (holding error related to improper impeachment of a witness was harmless where the jury also saw murder in patrol-car video and heard the defendant's confession)). Or an error can be harmful even where "properly admitted evidence was sufficient to support a jury verdict of guilty." Id. (citing State v. Lee , 531 So. 2d 133, 136 (Fla. 1988) ). We review all the inculpatory evidence, whether correctly admitted or erroneously admitted, to determine whether the legal error at issue was harmless, as we have done here.
Here, Appellant's guilt was established almost exclusively on Davis's observations, and therefore, her credibility. Therefore, this error was not harmless under State v. DiGuilio , as this Court cannot determine beyond a reasonable doubt that the exclusion of the evidence did not contribute to the verdict, given the total weight of the evidence. 491 So. 2d 1129, 1135 (Fla. 1986). The jury should have been allowed to consider evidence that Carter heard Davis tell others that she did not actually see that a battery occurred.
REVERSED and REMANDED for new trial.
Lewis and Roberts, JJ., concur.