COUNTY CRIMINAL COURT: CRIMINAL LAW Ė Jury trial evidence Ė Defendantís testimony did not open door justifying Stateís inquiry into defendantís previous arrest. Judgment and sentence reversed. White v. State, No. CRC 04-17 APANO, (Fla, 6th Cir.App.Ct. March 15, 2006).

 

 

NOT FINAL UNTIL TIME EXPIRES FOR REHEARING

AND, IF FILED, DETERMINED

 

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA IN AND FOR PINELLAS COUNTY

 

 

 

APRIL MICHELLE WHITE

 

††††††††††† Appellant,

 

 

Appeal No. CRC 04-17 APANO

UCN522004AP000017XXXXC

v.

 

 

STATE OF FLORIDA

 

††††††††††† Appellee.

____________________________________/

 

 

Opinion filed ______________________.

 

 

Appeal from a judgment and sentence

imposed by the Pinellas County Court

County Judge Dorothy Vaccaro

 

Larry Sandefer, Esq.

Attorney for appellant

 

C. Marie King, Esq.

Assistant State Attorney

 

ORDERAND OPINION

 

 

††††††††††† (J. Schaefer)

 

††††††††††† THIS MATTER is before the Court on the defendant, April Michelle Whiteís, appeal from a judgment and sentence imposed by the Pinellas County Court after a jury trial. After reviewing the briefs and record, this Court reverses the judgment and sentence.

††††††††††† The defendant was tried before a jury on the charges of fleeing and eluding and DUI. She was acquitted of the fleeing and eluding charge, but the jury found her guilty of DUI. The defendant contends that she did not receive a fair trial. She raises numerous issues.

††††††††††† First, she argues that the trial court erred in admitting into evidence information about her previous arrest for DUI. During the trial the State questioned the defendant

about her prior arrest for DUI. The State contended, and the trial court agreed, that the defendant opened the door to the introduction of the evidence. The defendant contends, however, that she did not.

††††††††††† The record shows that during her direct examination by her attorney about the circumstances surrounding the stop, the defendant stated: ďI hadnít been through this stuff before.Ē R. 354. The State contends that by making this statement the defendant

offered misleading testimony which entitled it to then correct the false impression that the

jury may have taken from the defendantís comment. Specifically, the State believed the defendantís comment would lead the jury to believe that she had never been arrested or in

trouble before. The defendant contends that the comment only related to her being

stopped for fleeing and eluding.

††††††††††† A review of the transcript supports the defendantís position. The immediate prior questions addressed the circumstances of the stop --- generally about the alleged fleeing

and eluding. Defense counsel then asked the defendant what she had told the police. The defendant said: ďI was like I donít see why you were pulling me over. I was doing what I

thought was right. You, know, I explained it basically I was just, you know, I hadnít been through this stuff before and I was just like I donít understand why.Ē R. 354. Defense

counsel then asked about what she meant by ďthis stuffĒ and the defendant responded: ďI havenít been through this and I was like I donít understand why this is fleeing and eluding when it was only a quarter of a mile and I pulled over.Ē In its context, the statement could not be said to have opened the door to the admission of otherwise inadmissible evidence. The defendantís comments did not open the door to the Stateís introduction of evidence that the defendant had been arrested once before for DUI.

††††††††††† The cases cited by the State all deal with situations where the witnesses clearly

make material assertions that might mislead the jury. Davis v. State, 216 So.2d 87 (Fla. 2d DCA 1968) (I hadnít owned or possessed a firearm); Butler v. State, 842 So.2d 817 (Fla. 2003) (I wouldnít hurt the victim); Simmons v. State, 790 So.2d 1177 (Fla. 3d DCA 2001) (Iím non-violent). The cases cited by the defendant, however, are more on point. For example, in Modeste v. State, 760 So.2d 1078 (Fla. 5th DCA 2000), the appellate court found that the defendantís statement that he did not know what cannabis meant did not entitle the State to introduce evidence of the defendantís previous arrests for possession of marijuana. The court reasoned that the defendant did not make a sufficiently false or misleading statement that justified the State to impeach him with the details of his prior arrests. In Pate v. State, 529 So.2d 328 (Fla. 2d DCA 1988), the court held that the defendantís statement about why he refused to talk to the arresting officer that: ďhe was not normally accustomed to itĒ did not justify the State in introducing evidence of the defendantís prior arrest. The court found the testimony to be inherently imprecise and therefore not susceptible of being called false and therefore, impeachable. Similarly, in the case at bar the defendantís statement could, at best, be interpreted in several ways. It did not rise nearly to the level of making false statements that might mislead the jury.

††††††††††† Moreover, the State made the arrest a significant part of its cross-examination. The State began its cross-examination with this issue at R. 385 and continued on the issue until it moved on to another issue at R. 394. During this time the State mentioned not only that the defendant had been arrested before, but that it was for DUI. To compound the error, the State repeatedly referred to the prior arrest for DUI, and mentioned it again during its closing argument.

††††††††††† As did the courts in Modeste and Pate, this Court finds that the previous arrest had the effect of unfairly prejudicing the defendant by showing bad character. The erroneous admission of collateral crime evidence is presumptively harmful. See Suarez-Mesa v. State, 722 So.2d 843 (Fla. 2d DCA 1998). This Court cannot say beyond a reasonable doubt that the error did not contribute to the verdict. Therefore, the judgment and sentence must be reversed. See State v. DiGuillo, 491 So.2d 1129 (Fla. 1986).

††††††††††† Although the judgment and sentence in this case is reversed, this case will be remanded to the trial court for a new trial. Therefore, since several of the other issues that were raised in this appeal may arise in the new trial, this Court reviewed the other issues raised by the appellant. However, no error was found in the appellantís remaining points.†††††††††† IT IS THEREFORE ORDERED that the judgment and sentence is reversed, and


this case is remanded to the trial court for a new trial.

††††††††††† DONE AND ORDERED in Chambers at Clearwater, Pinellas County, Florida this _____ day of March, 2006.

 

 

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† ______________________________

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† David A. Demers

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Circuit Judge

 

 

 

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† _____________________________

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† John A. Schafer

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Circuit Judge

 

 

 

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† _____________________________

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Irene H. Sullivan

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Circuit Judge

 

cc:††††††† State Attorney

 

††††††††††† Larry Sandefer, Esq.

 

††††††††††† Judge Vacarro