NOT FINAL UNTIL TIME EXPIRES FOR REHEARING
AND, IF FILED, DETERMINED
IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
OF THE STATE OF
APRIL MICHELLE WHITE
Appellant,
Appeal No. CRC 04-17 APANO
UCN522004AP000017XXXXC
v.
STATE OF
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
ORDER AND OPINION
(J. Schaefer)
THIS
MATTER is before the Court on the defendant, April Michelle White’s, appeal
from a judgment and sentence imposed by the
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: “I hadn’t been through this stuff before.” 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 defendant’s comment. Specifically, the State believed the defendant’s 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 defendant’s 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: “I was like I don’t 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 hadn’t been through this stuff before and I was just like I don’t understand why.” R. 354. Defense
counsel then asked about what she meant by “this stuff” and the defendant responded: “I haven’t been through this and I was like I don’t understand why this is fleeing and eluding when it was only a quarter of a mile and I pulled over.” In its context, the statement could not be said to have opened the door to the admission of otherwise inadmissible evidence. The defendant’s comments did not open the door to the State’s 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.
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.
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 appellant’s 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
______________________________
David A. Demers
Circuit Judge
_____________________________
John A. Schafer
Circuit Judge
_____________________________
Irene H. Sullivan
Circuit Judge
cc: State Attorney
Larry Sandefer, Esq.
Judge Vacarro