Fla. Stat, (1981) - Florida State University College of Law

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ZHE TRIAL COURT ERRED IN m G A POLICE D m To TESTIFY A3 M ?HE REPU'IRTION OF DEFENSE WITNESS RICHARD ELTNmD FOR TRUTH AND VERACITY, IN VIOLATION OF 90.609 I FLa. STAT. (1981) I AKI'ICLE: I, 9 OF T€E mFSlY4 CONSTITUTION AND THE FIFTH AND F'O- AMENDMEN% 'ElE U.S . CONSTITUTION. lb rebut the testimny of defense witness Richard Ellmd, the prosecution called as a witness P. R. Mittld, a detective .With the Jacksonville Sheriff's Office. (T. 2041-2044). The officer testified that he was a burglary detective bho had known Richard Ellmod since Novarker of 1981, that he was able to learn Ellwood's reputation for truth and vexacity, and that it was "extraly bad". (21. 2042). In order to lay a predicate for the detective's testhny, a proffer was had out of the jury's presence.(T, 2027-2036). Mittleman testifiec that he m t Ellwmd because he had arrested him for burglary. (T. 2028). Mittleman stated that he had been involved in investigating Ellwmd's criminal activities fran Noverrkr 1981, through the date of the trial, and that based on his investigation he had learned that Ellwood had a bad reputation for truth and veracity. IT. 2032). Mittlm admitted that he was neither Ellwood's friend or neighbor, nor was he an associate of any of Ellwmd's friends or neighbors. (T. 2032-2033). neighbors of the defendant, and that saw of them resided in the Jacksonville mmrunity, (T. 2033-2034, 2036). Mittleman stated that he had spken to friends and Reputation as to a witness truthfulness is admissible as impeachrnmt, 5 90.609, Fla. Stat. (1981). for truth and veracity rrrust be bottmed u p cwnwu?ity of residence and neighborhood. So. 73 (1927); 3d D.C.A. 1975). The general rule is that testhny as to reputatJn Florida East Coast Railway Co. the reputation in th.e pxson's Stanley v. State, 93 Fla. 372, 112 v. - Hunt, 322 So. 2d 68 (Fla. Witnesses are not generally qetent to testify as to a person's reputatLon unless they are neighbors or people in the corrnnuzity in which he Page -56-
I resides. Stanley, supra; - Florida East Coast Railway Co supra, An exception to this rule was rerognized ih HatnUton v.'State, 129 Fla. 219, 176 So. 89 (1937). - In Hamilton, there was a showing of an unavailability of reputation Witnesses from the cmrmnity or neighborhmd where the person lived, and a further showing that the person was well known mng the: people with whcan she mrked. Based an such evidence, it was held that co-wrkers should have been pmnitted to testify as reputation witnesses. The Hamilton exception requires proof that residents of the person's ccawrrunity are not available before others will be permitted to testify as to - the person's reputation. In Hawthorne v. State, 377 So. 2d 780 (Fla. 1st D.C.A.1979) I it was held to be error for the trial murt to admit the testimny of four witnesses as to the reputation of the victh based on having seen him where he worked, or at a service station and at a b arb shop where he traded, because the state did not prove that testhny frm the ccannavlity where the victim resided was unavailable, witnesses fran Ellwood's neighborhood or cxrrmnunity =re unavailable; to the contrary, the evidence shaved that friends and neighbors did exist and still lived in the Jacksonville -unity. (T, 2033-2034). me detective knew persons in Jacksonville who knew Ellwood whm he was living in Jacksonville. (T. 2036). There was no evidence that any attenpk had heen made to locate those persons, or that they were unavailable. As in HavYthorne, the state mde 110 showing that &e prosecution tried to justify the use of Detective Mittlemn because "he learned it through hard work and investigating the individual". CT. 2037). In effect, the prosecution was seeking to Use Mittleman as their "q~" on Richard Ellwd. invades the province of the jury and is clearly inadmissible. Valdez, 353 So, 2d 1257 (Fla. 3rd D,C.A. 1978); GeneTal Telephdrle Coo v. Wallace, 417 So, 2d 1022 (Fla. 2nd D.C,A. 1982), Such "Pqxxt OpirZrian", whether offered as such or mt, Page -57- Lamazares V, It is inappropriate far one who is a
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RPPEAL FffQM THE CIRCUIT COURIT OF
Page 3 and 4:
V TRIAL COuIiT EXRED IN FAILING TO
Page 5 and 6:
UNRELATED O??F'ENSE AS EVIDENCE OF
Page 7 and 8:
ACEEY. mm, 33tlTo~7"T% (Fla. 4th ;D
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c?JME3IEV. smm 345 So. 2 d m CURRYV
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i%W'HW v. STATE j// So'.' 2d 7807Fl
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MCMILLANV. smm 4119 So. 2d 1-la. 3r
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0 PRamCE v. STATE 337 So, 2d 7 n l
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mmv, STATE 2d =la. 1st D.C.A, 1982)
Page 19 and 20:
0 INTRODUCTION The appellant, Fbber
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of Other Crbs, Wrongs, or Acts. (R.
Page 23 and 24: 0 (T. 1128-1129).crooVer said nothi
Page 25 and 26: 0 going to kill "the mther fucker",
Page 27 and 28: this would alleviate any problem be
Page 29 and 30: took out his knife and stabbed Padg
Page 31 and 32: (T, 1342-1343). mng's rmther disapp
Page 33 and 34: he said it, "nobdy paid any mbd to
Page 35 and 36: told the defendant to "back off". (
Page 37 and 38: and said, Yh ny God". (T. 1260). tw
Page 39 and 40: out of the cay. and walked around b
Page 41 and 42: WHEXFER THE THE JUHI UPON THE LAW Q
Page 43 and 44: IX X WHlTIWB THE TRIAL ERRED IN m I
Page 45 and 46: XVIII WHEXfER THE TRUG COUW: FBRED
Page 47 and 48: they were afraid of being killed by
Page 49 and 50: ut munsel could not argue it becaus
Page 51 and 52: to the co-defendant, who continued
Page 53 and 54: participate in the killing, 2. If t
Page 55 and 56: Brother Caps. (T. 1185) (4). the de
Page 57 and 58: So. 2d 583 (Fla. 4th D.C.A. 1983).
Page 59 and 60: EXPW AND JTETIFY PLEA BARWWNG WITH
Page 61 and 62: type of rebuke counsel received. on
Page 63 and 64: utilized the stature of his office
Page 65 and 66: likewise improper for the State Att
Page 67 and 68: Payment of mney to a witness for an
Page 69 and 70: the prosecutor informed a juror onc
Page 71 and 72: the fiream or threatened Padgett wi
Page 73: from the operation of discowry rule
Page 77 and 78: Pernutting the reputation testby. o
Page 79 and 80: little probative value w kn it is c
Page 81 and 82: - The fact that a defendant refused
Page 83 and 84: The United States Supre court has s
Page 85 and 86: 'BE general rule is that statements
Page 87 and 88: The general rule is that a witness'
Page 89 and 90: any person the defense "expects to
Page 91 and 92: CR, 6167 T, 58-7 Penalty (R. 16-31
Page 93 and 94: Sheppard's necklace and ring me tak
Page 95 and 96: (-TT* 1032, 10491. An execution-sty
Page 97 and 98: (5) W ilm Urgmn, the defendant's si
Page 99 and 100: The defense also argued for mitigat
Page 101 and 102: mitigating circumstance in a capita
Page 103: CFRI'IFICATE OF SERVTCE I HEREBY CE
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Fla. Stat, (1981) - Florida State University College of Law

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