Earl STOTLER, Appellant, v. STATE of Florida, Appellee.
No. 4D02-814.
District Court of Appeal of Florida, Fourth District.
January 22, 2003.
834 So. 2d 940
GROSS, J.
Charlie Crist, Attorney General, Tallahassee, and Claudine M. LаFrance, Assistant Attorney General, West Palm Beach, for appellee.
GROSS, J.
Earl Stotler appeals his convictions for burglary of a structure and contributing to the delinquenсy of a child. The theory of the state‘s case was that Stotler was a principal to the criminal acts of his girlfriend, Julie Napier. We reverse, holding that the trial court erroneously restricted Stotler‘s cross-examination of Napier.
The crimes occurred at 4:00 a.m. at a closed gas station. The entire incident was captured on a surveillance videotape positioned inside the station and facing the cashier‘s window. The tape was published to the jury through the testimony of Officer Brian Avila, who retrieved thе tape from the gas station at 7:00 a.m. on the morning of the crimes.
The tape depicts Napier approaching the cashier‘s window and inserting her arm into the round oрening in the middle of the window. She grabbed some items and walked away. Napier returned with a walking cane and stuck it into the opening. Next, Stotler appeared with his son. He took the cane away from Napier, stood by a few moments, looked around, and walked away. Napier continued to steal merchandise without the cane while Stotlеr‘s son
At no time does the tape depict Stotler reaching into the window opening. All of the conversation on the tape was inaudible; the trial judge described it as sounding “like the chipmunks, Alvin, Theodore, and Simon.”1
The state callеd Napier as a witness. She viewed the videotape while on the witness stand and testified that it was “a true and accurate representation” of what occurred at the gas station. She identified Stotler as being the man on the tape and six-year-old Shane Stotler as the child. Napier stated that Stotler had picked her up at a friend‘s housе at 3:30 a.m. and that they stopped at the gas station on their way home. She testified that she took “[s]ome lighters and some phone cards” worth $1,200 from the gas station.
On cross-examination, Napier testified that they stopped at the gas station for Stotler to use the phone; Napier removed the cane from the car while Stotler was using the telephone. They had no conversation at that time. The trial judge granted the state‘s motion in limine and prevented the defense from questioning Napier about Stotler‘s statеments during the burglary. The following colloquy occurred during the cross-examination of Napier:
Q And where was Earl Stotler when you went to look in the window of the door?
A He‘s following right behind me.
Q And was he saying anything to you?
A He was wanting to leave.
[STATE]: Objection—objection, Your Honor.
THE COURT: Sustain the objection.
...
Q And was there any disсussion between you and Earl Stotler before you got out of the car?
A I told him I was going—
[STATE]: Objection, Your Honor.
THE COURT: Sustain the objection. Ma‘am, you can—
THE WITNESS: Yes sir.
THE COURT: You cannot testify as to the contents of the conversations, just was there conversation.
...
Q Okay. Did Mr. Stotlеr sug—suggest that you burglarize the gas station?
A No.
[STATE]: Objection, goes to the—
THE COURT: I‘ll sustain—
[STATE]: Previous ruling of this Court.
THE COURT: I‘ll sustain the objection.
Q Did Mr. Stotler suggest that he burglarize the gas station?
THE COURT: I‘ll sus—I‘ll sustain the objection consistent with the Cоurt‘s previous ruling. Members of the jury, I‘ll ask you all to disregard that question.
(Emphasis added).
In closing, the state argued that Stotler aided the burglary by acting as the getaway driver and allowing Napier to use the cane. The state further contended that the video showed Stotler acting as a lookout.
We agree with appellant that the trial court erred in ruling that the proрosed cross-examination went beyond the scope of direct examination.
[W]hen the direct examination opens a general subject, the cross-еxamination may go into any phase, and may not be restricted to mere parts ... or to the specific facts developed by the direct examination. Cross-examination should always be allowed relative to the details of an event or transaction a portion only of which has been testified to on direct examination. As has beеn stated, cross-examination is not confined to the identical details testified to in chief, but extends to its entire subject matter, and to all matters that may modify, supplement, contradict, rebut or make clearer the facts testified to in chief.
Zerquera v. State, 549 So. 2d 189, 192 (Fla. 1989) (quoting Coxwell, 361 So. 2d at 151 (quoting Coco v. State, 62 So. 2d 892, 895 (Fla. 1953))).
This case falls within the rule of Coco. “[I]f a portion of a transaction ... or event is brought out on direct examination, the remainder can be brought out on cross-examination.” CHARLES W. EHRHARDT, FLORIDA EVIDENCE § 612.2 at 54 (2002 ed.). The subject matter of Napier‘s direct examination was the commission of the burglary depicted on the videotape. Stotlеr was charged as a principal to Napier‘s crimes.
The state relies on Steinhorst v. State, 412 So. 2d 332 (Fla. 1982), but it is not controlling. Unlike this casе, the proposed cross-examination in Steinhorst did not involve the circumstances of the crime charged, but rather the marijuana importation conspiracy that providеd the background for the homicides there at issue. Also, the defendant in Steinhorst failed to preserve his theory of cross-examination
Finally, we agree with appellant that statements he made during the burglary depicted on the videotape are not hearsay under
The legal significance of acts taken alone and isolated from surrounding circumstances may be unclear. Thus the bare physical act of handing over money tо another person is susceptible of many interpretations. The possibilities include loan, payment of a debt, bribe, bet, gift, and no doubt many other kinds of transactions. Explanаtory words which accompany and give character to the transaction are not hearsay.
We do not find the limitations on cross-examination to be harmless. The burdеn is on the state to prove beyond a reasonable doubt that “the error complained of did not contribute to the verdict or, alternatively stated, that there is no rеasonable possibility that the error contributed to the conviction.” Goodwin v. State, 751 So. 2d 537, 541 (Fla. 1999) (quoting State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986)). We cannot say beyond a reasonable doubt that the error did not affect the verdict.
REVERSED.
SHAHOOD, J., and MAASS, ELIZABETH T., Assoсiate Judge, concur.