Henry v. State

Aug 15, 1990

No. 89-1613

Versions:566 So. 2d 29

1990 WL 116372

1990 Fla. App. LEXIS 6096

Lead Opinion

PER CURIAM.

Affirmed. We recognize that the trial court may have abused its discretion in precluding cross-examination of a state’s witness concerning statements made by the defendant. The statements were made in the conversation at the scene of a consent search. Although the officer/witness testified only to the physical conduct of the search and not to the contemporaneous conversation, the defense was entitled to ask about the statements even if self-serving. E.g., Coco v. State, 62 So.2d 892 (Fla.1953); Eberhardt v. State, 550 So.2d 102 (Fla. 1st DCA 1989), rev. denied, 560 So.2d 234 (Fla.1990). Nevertheless, here, *30such error was harmless. Cf. Coxwell v. State, 361 So.2d 148 (Fla.1978). See also Ackerman v. State, 372 So.2d 215 (Fla. 1st DCA 1979) (Smith, J., concurring). The statement concerned the defendant explaining how he acquired a suitcase containing cocaine. This was subsequently testified to on defense. The defense also had the opportunity to recall the witness but elected not to do so. Nothing in the nature of the officer’s testimony made the court’s ruling unfair, nor did the excluded testimony refute, impeach or modify the state’s evidence.

WALDEN and STONE, JJ., concur. WARNER, J., dissents with opinion.

Dissenting Opinion

WARNER, Judge,

dissenting.

I would reverse because defendant was denied his Sixth Amendment right to confront and cross-examine witnesses. Eberhardt v. State, 550 So.2d 102 (Fla. 1st DCA 1989); Heathcoat v. State, 430 So.2d 945 (Fla. 2d DCA 1983), aff'd, 442 So.2d 955 (Fla.1983). The fact that the court offered to the defendant the right to recall the witness on his case does not cure the constitutional error because the defendant cannot be compelled to forego his Sixth Amendment right and make a witness his own when he is entitled to cross a witness on subjects opened up on direct examination. See Coco v. State, 62 So.2d 892 (Fla.1953).