Smith v. StateSmith v. State
As a result of an altercation outside a bar between appellant and his son-in-law, Marshall Newton, Newton suffered a spinal cord injury that left him paralyzed from the neck down. Appellant asserted the defense of self-defense. Both sides presented eyewitness testimony at the trial. The state submitted evidence inferring that appellant was the aggressor and that he used a knife to stab Newton, while the defense, on the other hand, introduced evidence implicating Newton as the aggressor wielding the knife. In addition, appellant sought to introduce evidence relating to Newton‘s character for violence consisting of both reputation evidence and specific act evidence. Appellant proffered evidence both as to Newton‘s reputation for violence and as to specific instances of violence, which would disclose, among other things that Newton attacked him with a butcher knife in July 1988, threatened his son with a knife, stabbed his daughter in the neck with a knife, threatened Doug Katt with a shotgun, told Joey Porter that if appellant did not “butt out” of his relationship with appellant‘s daughter, he would do something to appellant, and pulled a knife on Bobby Claghorn in May 1989, at the same bar where the fight between appellant and Newton occurred in October 1990. Appellant clearly testified during the proffer that all of the above incidents were known to him before the alteration. Although the trial court allowed the reputation evidence, it excluded the evidence relating to specific instances of violence.
We cannot agree that the trial court‘s denial of such evidence was consistent with established case law. In Florida, evidence of the dangerous character of the victim is admissible to show, or as tending to show, that the defendant acted in self-defense. Garner v. State, 28 Fla. 113, 136, 9 So. 835, 841 (1891). Thus, when self-defense is raised, evidence of the victim‘s reputation is admissible to disclose his or her propensity for violence and the likelihood
Before a defendant may offer either type of character evidence, he or she must lay a proper predicate demonstrating some overt act by the victim at or about the time of the incident which reasonably indicated to the defendant a need for action in self-defense. Quintana, 452 So.2d at 100; Williams, 252 So.2d at 247. Consequently, if there is the slightest evidence of an overt act by the victim which may be reasonably regarded as placing the defendant in imminent danger, all doubts as to the admission of self-defense evidence must be resolved in favor of the accused. Quintana, 452 So.2d at 101; Warren v. State, 577 So.2d 682, 684 (Fla. 1st DCA 1991) (reversing second degree murder conviction because defendant was erroneously precluded from introducing evidence of deceased‘s character that was relevant to a self-defense theory).
In the instant case, appellant, as stated, claimed self-defense and laid a proper predicate for the admission of character evidence in that his evidence disclosed that Newton approached him in a threatening manner, that Newton pushed against him, and that Newton held a knife. Warren; Quintana. Under the circumstances, appellant was properly allowed to introduce evidence of Newton‘s reputation for violence under
Appellant was erroneously prohibited, however, from introducing evidence of specific acts of violence by Newton for the reason that appellant‘s apprehension of bodily harm or death threatened by Newton was an essential element of his defense. Therefore, appellant should have been permitted to testify under
Considering the nature of the evidence in this case, especially the conflicts between the theories offered by the two
Although our disposition of point I, requiring reversal and remand of the case for new trial, makes it unnecessary for us to address point II, relating to the propriety of the trial court‘s refusal to admit into evidence the deposition testimony of an absent witness, we consider that discussion of this issue would be helpful to the parties on remand. During the trial below, appellant attempted to introduce into evidence the deposition of Bradford Blackwell, in which he testified as to certain threatening statements made by Newton about appellant approximately two hours before the occurrence of the altercation. The state objected on the ground that appellant had not followed the procedure for perpetuating testimony, as provided in Florida Rule of Criminal Procedure 3.190(j), and that appellant made no showing that Blackwell was unavailable as a witness under the former-testimony hearsay statute,
Appellant argues that the trial court‘s ruling excluding such testimony was erroneous in that deposition testimony is admissible under Florida‘s long-standing rule allowing the admission of former testimony, codified in
Persuasive as the above cases are permitting the admissibility of deposition testimony under such circumstances in the civil sector, the rule applied in civil cases is not applied in this jurisdiction in criminal cases. This court has held that the substantive use of a deposition taken solely for the purpose of discovery is improper under the Florida Rules of Criminal Procedure. Terrell v. State, 407 So.2d 1039 (Fla. 1st DCA 1981) (discovery deposition erroneously admitted at trial when court determined witness was unavailable). See also State v. James, 402 So.2d 1169, 1171 (Fla. 1981) (holding that discovery depositions may not be used as substantive evidence in criminal trials). And see Barnett v. State, 444 So.2d 967 (Fla. 1st DCA 1983); Clark v. State, 572 So.2d 929 (Fla. 5th DCA 1990); Campos v. State, 489 So.2d 1238 (Fla. 3d DCA 1986). We acknowledge that the above decisions are at variance with the interpretation placed on
[T]here is some Florida authority that in a criminal case a deposition must be admissible under the Rules of Criminal Procedure. If those rules do not provide for its admission, the deposition cannot be admitted under
section 90.804(2)(a) . There appears to be no logical reason to draw this distinction. Depositions should be admissible undersection 90.804(2)(a) in both criminal and civil cases. In addition, when the Florida Supreme Court adopted that part of the Evidence Code which was procedural as a rule of court, it stated: “all present rules of evidence established by case law or express rules of court are hereby superseded to the extent they are in conflict with the code.” Thus, if procedural rules limiting the use of depositions as evidence are “rules ofevidence,” as it would appear they would be, the Florida Supreme Court has already ruled that section 90.804(2)(a) controls and the deposition would be admissible.
Charles W. Ehrhardt, Florida Evidence § 804.2, at 670-71 (1992 ed.) (footnotes omitted).
Although Professor Ehrhardt makes an extremely logical argument, paralleling appellant‘s position that the criminal rules, like the civil rules, should be read in conjunction with
Our disposition of Point I moots consideration of the sentencing error raised in Point III.
REVERSED and REMANDED.
MINER and WEBSTER, JJ., concur.