County Criminal Court: CRIMINAL LAW --- Jury Trial – Evidence --- No error in limiting questions where defendant’s theory of the case was presented numerous times via several witnesses; any more testimony would have been cumulative. Any error would have been harmless where defendant admitted possession of the marijuana. Judgment and sentence affirmed. Yardy v. State, No. CRC 07-25 APANO, (Fla. 6th Cir. App. Ct. April 7, 2008).

 

 

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

 

 

MELISSA YARDY

 

            Appellant,

                                                                              Appeal No. CRC 07-25 APANO

                                                                              UCN522007AP000025XXXXCR

v.

 

STATE OF FLORIDA

 

            Appellee.

__________________________/

 

Opinion filed _________________.

 

Appeal from a judgment and sentence

entered by the Pinellas County Court

County Judge Lorraine M. Kelly

 

Nathaniel B. Kidder, Esquire

Attorney for appellant

 

Kate A. Alexander, Esquire

Assistant State Attorney

 

 

ORDER AND OPINION

 

            (J. Bulone)

 

            THIS MATTER is before the Court on the defendant, Melissa Yardy’s, appeal from a judgment and sentence entered by the Pinellas County Court following her conviction for possession of marijuana. After reviewing the briefs and record, this Court affirms the judgment and sentence.

 

Facts

 

            The police received an anonymous call that a woman was smoking marijuana in a particular car at a particular location, and that there was a bag of marijuana on the shelf below the rear widow. Two of the defendant’s witnesses testified that the voice of the caller was that of the defendant’s ex-husband. The police arrived at the location, found the car, and saw what appeared to be a bag of marijuana on the shelf below the rear window. They located the owner of the vehicle (the defendant) inside the business where the car was parked and had her come out so they could investigate. During the investigation the police, in addition to finding the bag of marijuana below the rear window, found two burnt marijuana cigarette stubs, called “roaches.” The defendant was ultimately charged with possession of marijuana and convicted of that charge by a jury.

No error resulted from limiting questions

 

            The defendant claims the trial court erred in limiting her cross-examination of two of the police officers and in limiting her testimony. The defendant’s theory of the case was that her ex-husband had planted the bag of marijuana found in her car. To advance her theory, the defendant mentioned, and tried to highlight, the fact that she had a difficult relationship with her ex-husband. She claims she was thwarted in her attempt to explain her theory of the case when the trial court sustained the State’s objections to questions about what she had told the police about her relationship with her ex-husband. The defendant proffered a response to one question about the difficult relationship, but there is nothing in the proffer that was not ultimately presented to the jury.

            The defendant presented her theory of the case --- that her ex-husband planted the marijuana; and information to establish his motive --- that they had a difficult relationship. Her theory and supporting information were presented by both her testimony and that of her two witnesses, as well as that elicited from the officers about what the defendant had said at the time of the investigation.             

            During cross-examination one of the officers testified that the defendant mentioned that her ex-husband was stalking her. (P. 62 of the trial transcript “TT”). Another officer, during his cross-examination, testified that the defendant made a vague statement that she believed the marijuana had been planted in the car by her ex-husband. (P. 98 TT). That officer also testified that the defendant said she had problems with her ex-husband stalking her. (P. 100 TT). A third officer testified that the defendant said her husband had something to do with it; that she looked very surprised when she saw the marijuana in the back window; that her husband set her up; that she was going through a bad divorce and her husband had posted some pictures of her on the internet. (P. 134-6 TT).

            The defendant testified that she told the officers: “what had been going on with the stalking and the harassment and how he had posted me on these adult websites …  .” (P. 164 TT). The defendant also testified that she: “told him (officer) I was sure my husband had placed that, that he had been harassing me, that she had just received an e-mail that he said that he was going to make sure I lost my license.” (P. 167 TT).

             The defendant’s two witnesses testified that the ex-husband had appeared at the defendant’s place of work earlier that day. According to one of the witnesses: “he bursted in the back door and came into the office and threw some papers on her desk and said,’ this is unacceptable.’” (P. 142 TT). He then “went back out and slammed the door.” The ex-husband was also described by the other witness as “very distressed that day” and was “shaking.” (P. 155 TT).

            In light of all this testimony, it was not error for the trial court to limit the questioning about the defendant’s relationship with her ex-husband. The jury was presented numerous times, via several witnesses, with the defendant’s theory about her ex-husband and his motive; any more testimony would have been cumulative.

Any error would be harmless

             

            Moreover, any error would be harmless beyond a reasonable doubt. As noted previously, the defendant was able to present her theory of the case to the jury. In addition, the defendant admitted that the marijuana was hers. One of the officers testified that: “she had said that she and her friends had smoked marijuana in the car that weekend and that she claimed ownership to the roaches.” (P. 46 TT). Another officer testified that the defendant admitted the marijuana was hers. The officer also testified: “She stated she was out with some girlfriends the past weekend and that they had been smoking in the vehicle this weekend.” According to that same officer, the defendant also admitted that the marijuana in the bag was hers. When the defendant saw the marijuana on the rear deck of the car, “she was almost in a state of shock.” The officer testified that she: “stated that she believed that the marijuana was in the glove box.” (P. 91 TT). Given this record, this Court concludes there was ample evidence presented to convict the defendant, and that any error possibly created by the trial court’s limiting of the questions concerning the defendant’s relationship with her ex-husband was harmless. Accordingly, the judgment and sentence must be affirmed.

 

            IT IS THEREFORE ORDERED that this Court affirms the judgment and sentence.

            DONE AND ORDERED in Clearwater, Pinellas County, Florida this _____ day of April, 2008.

                                                            _____________________________

                                                                        Joseph A. Bulone

                                                                        Circuit Court Judge

 

 

 

                                                            _____________________________

                                                                        David A. Demers

                                                                        Circuit Court Judge

 

 

 

                                                            ______________________________

                                                                        Cynthia J. Newton

                                                                        Circuit Court Judge

cc:        Office of the State Attorney

 

            Honorable Lorraine M. Kelly

 

            Nathaniel B. Kidder, Esquire