Burk v. StateBurk v. State
Appellant, Norman Burk, has appealed from a judgment and sentence imposed upon him pursuant to a jury verdict finding him guilty of first degree murder. We find that the trial court erred in refusing to allow appellant to testify concerning his knowledge of the victim‘s reputation for violence and, accordingly, reverse and remand for a new trial.
Appellant was charged with committing the crime of first-degree premeditated murder, a violation of
The jury was instructed that if it found that the deceased, Charles Morrise, had a reputation for being a violent and dangerous person and that his rеputation was known to the appellant, it could consider this fact in determining whether the appellant‘s actions were those of a reasonable person dealing with an individual of that reputation. The jury found appellant guilty as charged. Upon appellant‘s motion, the сourt dispensed with the penalty phase of the proceedings on the ground that there were insufficient aggravating circumstances to warrant, as a matter of law, the death penalty. Appellant was subsequently adjudicated guilty and sentenced to serve a term of life imprisonment with a minimum of twenty-five years without parole. This timely appeal followed.
Of all the points appellant has raised on appeal, we agree only with his contention that the trial court erred in refusing to allow him to testify concerning the deceased‘s reputation for violence.
When a defendant pleads self-defense in a prosecution for murder and a proper foundation is laid at trial, evidence of the deceased‘s violent character is admissible if an issue exists as to either the deceased‘s conduct, i.e., whether he was the first aggressor, or the reasonableness of the defendant‘s belief concerning imminent danger from the deceased. See Hodge v. State, 315 So.2d 507 (Fla. 1st DCA 1975); Banks v. State, 351 So.2d 1071 (Fla. 4th DCA), cert. denied, 354 So.2d 986 (Fla. 1977); Williams v. State, 252 So.2d 243 (Fla. 4th DCA), cert. denied, 255 So.2d 682 (Fla. 1971); see also, Pino v. Koebler, 389 So.2d 1191 (Fla. 2d DCA 1980). In this case, evidence of the cirсumstances of the homicide tended to support the claim of self-defense. Appellant testified that the deceased approached him in a threatening manner and that, when the deceased reached into his pocket, he made a motion which caused appellant to believe he was going for a weapon. Appellant testified that for these reasons, he became afraid and shot thе deceased. Because an issue existed as to the reasonableness of the appellant‘s belief concerning the imminent danger from the deceased, the court erred in refusing to allow appellant to testify concerning his knowledge of the deceased‘s reputation for violence. Banks; Williams.
As appellant‘s only defense to the charge was that of self-defense, we are unable to say that the failurе to admit the reputation evidence was harmless error. Banks. This error was aggravated when the court sustained, in the jury‘s presence, an objection to appellant being questioned on this issue and then subsequently instructed the jury that it could consider the deceased‘s reputation, if it was known by аppellant, in determining whether his actions were those of a reasonable person dealing with an individual of that reputation.
The state сontends that when the trial court offered appellant an opportunity to reopen his case to present such evidence, it cured the previous error. We disagree.
Whether to allow the reopening of a case is a question involving sound judicial discretion of the triаl court, a discretion rarely interfered with at the appellate level. Pitts v. State, 185 So.2d 164 (Fla. 1966). It commonly occurs when either party requests the court to reopen their case so that they may present evidence. In this case, however, the appellant did not move to reopen his сase. It was the state who suggested this course of action in order to cure an error it had created the previous day.
In exercising its discretion to reopen a case for additional evidence, the court should consider the timeliness of the motion, the character оf the testimony, and the effect of granting the motion. United States v. Walker, 772 F.2d 1172 (5th Cir.1985). The belated receipt of such testimony should not imbue the evidence with distorted importance, prejudice the opposing party‘s case, or preclude an adversary from having an adequate opportunity to meet
The state argues that appellant could have asked the trial court to reissue subpoenas and recess the trial until such time as the witnesses could be returned to court. Appellant claims, however, and we agree, that even if the witnesses could have been resubpoenaed, thе fragmentation of appellant‘s defense together with the mixed messages the jury would have received would have had a debilitating effect on his defense. The state, as the moving party, had the burden of proving lack of prejudice to the opposing party. We do not find that it carried this burden.
We, accordingly, reverse and remand for a new trial.
GRIMES, A.C.J., and FRANK, J., concur.