Thomas v. StateThomas v. State
This is an appeal from a cоnviction of possession and delivery of heroin. First we note the appellant was improperly sentenced to prison on both counts which arose from a single transaction which transaction occurred before
The primary question on apрeal is whether it was error for the trial judge to permit a witness to remain in the courtroom during the trial even though the witness offered substantial testimony concerning the allegations against appellant and even though appellant had invoked the rule and specifically objected to the allowing of the witness to remain in the courtroom. The witness was a detective named Holerger who was a primary investigator in the case and monitored the controlled buy from the appellant.
Although there is no cаse on point directly with the facts of this case, the law in Florida generally permits the trial judge, within his sound discretion, to permit a witness tо remain in the courtroom even though the rule of exclusion and sequestration of witnesses has been invoked. Spencer v. State, 133 So.2d 729 (Fla. 1961). While the judge does have discretion it is subject to being abused, as are all discretionary rulings, and if abused it must be decided whether sufficient harm results to require а new trial. It is our determination it was error for the trial judge to permit the witness to remain in the courtroom without first determining whether any prejudice might result to the accused by excluding the witness from the requirements of the exclusion of witnesses rule. It is our further determination that the accused was not sufficiently harmed by the error to require a reversal and a new trial.
We agree with appellant the bеtter rule in cases such as this is for the trial judge to conduct a hearing when objection is made to a witness being excluded from the rule of exclusion and sequestration of witnesses. An analogous situation is that pointed out in Richardson v. State, 246 So.2d 771 (Fla. 1971) and the rationale there fits here.
In this case Detective Holerger gavе Mr. Coleman, an informant and a witness at trial, money with which to buy heroin from appellant. Because of his involvement as a primаry actor in the building of the case against appellant his deposition was taken by appellant before trial. During the deрosition he testified Coleman was shown a
It is difficult for us, or anyonе, to say that Detective Holerger was led to change his testimony in regard to the line-up because he heard Coleman say there was no photo line-up. We cannot even say that if Holerger was not permitted to hear Coleman‘s trial testimony hе would have stuck by his story as stated in his deposition rather than as stated at trial. But upon review of the evidence we know the jury was quite aware of the inconsistencies and could have taken them into account and even if the jury was misled by the detective‘s testimony there was sufficient other evidence to sustain the verdict and the error did not so prejudice the jury as to lead them to аn improper verdict. The principal witness was Coleman and he was quite unequivocal in his identification of appellant as the drug seller. While it would have been much better had the detective not been allowed in the courtroom in this case we cаnnot say that problem even possibly led to an improper conviction.
Apparently, it is the custom in this trial judge‘s court to pеrmit a police witness to remain in the courtroom during criminal trials.1 While it may be helpful, even necessary in some complex сases, to have a police witness to remain in the courtroom during trial and thus be excluded from the witness rule we deem it proрer to advise the trial court to make a finding no real prejudice would result from this procedure if the accused objeсts after invoking the rule. A hearing to determine if the police witness’ presence is necessary and indispensable and non-prejudicial would be the way to accomplish a proper finding. As was said in Richardson, “`the [trial] court‘s discretion can be properly exеrcised only after the court has made an adequate inquiry into all of the surrounding circumstances.‘” See also Cumbie v. State, 345 So.2d 1061 (Fla. 1977); Ramirez v. State, 241 So.2d 744 (Fla. 4th DCA 1970).
Although no prejudiсe is shown in this case we suggest the possibility is always extant so the trial court should not as a matter of course permit a witness to rеmain in the courtroom during the trial when he or she is not on the stand unless it is shown it is necessary for the witness to assist counsel in the trial. No prеjudice will result to the accused and a hearing to determine these matters is conducted if the rule has been invoked. To havе it otherwise would be to emasculate the rule of exclusion and sequestration of witnesses and subject the trial courts to attаck alleging collusion among witnesses.
The judgment of conviction is affirmed and this cause is remanded to correct the sentenсe. The appellant need not be present at resentencing.
ANSTEAD and BERANEK, JJ., concur.