Smith v. StateSmith v. State
In December, 1997 four masked men, armed with firearms, entered the 15th Street Market, a convenience store in Pompano Beach, where they robbed the manager and assaulted the clerk. Appellant, charged with armed robbery and aggravated assault, both with a firearm, was convicted on both counts primarily on the strength of the victims’ eyewitness identification of appellant as one of the perpetrators. On this appeal from the judgment аnd sentence, appellant contends the court erred by (1) proceeding with appellant‘s trial in the absence of a defense witness who was in state custody, (2) refusing to allow appellant to impeach the state‘s prinсipal witness by prior inconsistent statement, and (3) failing to follow the requirements of section 985.233, Florida Statutes before sentencing appellant, a juvenile, as an adult. We affirm both the judgment and the sentence.
On the first point, that the court еrred by proceeding with appellant‘s trial in the absence of a defense witness then in state custody, appellant bases his argument on the constitutionally guaranteed right1 to offer the testimony of witnesses and to compel their аttendance, a fundamental element of due process. Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967). The purported
A colloquy between the court and counsel developed the information that the prosecutor had changed his mind about calling Maddarrow as a witness. In explaining his decision not to call Maddarrow as a witness, the prosecutor stated to the court that Maddarrow, while under oath, on one occasion had implicаted appellant and on another occasion had exonerated appellant, although most recently at his sentencing hearing and under oath he had identified appellant by name as a co-participant in thе charged offenses. The prosecutor also stated that he had not delivered the court order to the sheriff because he was informed the sheriff would not transport Maddarrow from prison to Broward County without two weeks notice. Dеfense counsel stated that he had relied on the prosecutor‘s representation that the transport order would be delivered to the sheriff, and that Maddarrow, if called as a witness, would testify that appellant was not a co-participant in the December, 1997 caper. The court overruled defense counsel‘s objection, an objection that was again made and overruled before opening statements. The absence of the witness was аlso the basis for a motion for mistrial, made and overruled at the close of the state‘s case.
We view appellant‘s objection to proceeding with the trial in the absence of the purported witness as being, in effect, a motion for a continuance. Such motion is directed to the sound, judicial discretion of the court. The denial of such a motion should not be reversed unless it clearly and affirmatively appears on the record that the denial wаs a palpable abuse of discretion. See Geralds v. State, 674 So.2d 96, 99 (Fla.1996); Jent v. State, 408 So.2d 1024 (Fla.1981); Magill v. State, 386 So.2d 1188 (Fla.1980). For a defendant to prevail on a motion for continuance (because of the absence of a witness), the defendant is required to show (1) prior due diligence to obtain the witness’ рresence; (2) that substantially favorable testimony would have been forthcoming; (3) that the witness was available and willing to testify, and (4) that the denial of the continuance caused material prejudice. Geralds, 674 So.2d at 99 (citing United States v. O‘Neill, 767 F.2d 780, 784 (11th Cir.1985); see also Robinson v. State, 561 So.2d 419, 421 (Fla. 1st DCA 1990); Goree v. State, 411 So.2d 1352, 1353 (Fla. 3d DCA 1982)).
Here, defense counsel failеd to carry the burden described above; indeed, it is questionable that he adequately met any of the four requirements. Defense counsel took no steps himself to obtain the presence of Maddarrow.4 Though defense counsel
Appellant‘s second point is that the court erred in sustaining the state‘s hearsay objection to defense counsel‘s efforts to impeach the credibility of the state‘s principal witness, the store manager. The latter had testified at trial that appellant came behind the counter close to where he, the manager, was standing, and took money from under the counter. On cross examination the witness was asked if he had given the investigating officers a statement that it was the person known as “Mad Dog” who came behind the counter and took money from under the countеr.7 The witness denied that he had made such a statement to the investigating officers. Thus, if appellant had evidence that the witness had indeed told the investigating officers under the circumstances described in the question that it was the person knоwn as “Mad Dog” who came behind the counter, that evidence would have been admissible as proper impeachment.8
The problem here is that the record does not show either proof or proffer of proof of such prior inconsistent statement on the part of the store manager. The closest approach is the following question by defense counsel on cross-examination of Detective Lindsey, one of the investigating officers:
Do yоu recall [the store manager] giving a description that the person that he later identified as being Mr. Henry Smith as being the one previously behind the counter rummaging, looking for money, and removing cigarettes as he exited the store? (e.s.)
The prosecutor‘s objection on the grounds of hearsay was sustained, and the question was never answered nor was any proffer made of what the answer would have been if allowed. Of course, as the question was phrased, an affirmative аnswer by the detective would have shown
Appеllant‘s third point is that it was error for the court to sentence him because the presentence report did not include a comments section prepared by the Department of Juvenile Justice with its recommendations as to disposition, an evaluation mandated by
FARMER and KLEIN, JJ., concur.