Opinion
Case No. 3D02-2202.
Opinion filed March 31, 2004.
An Appeal from the Circuit Court for Miami-Dade County, Cecilia Altonaga, Judge, Lower Tribunal No. 01-25042.
Bennett H. Brummer, Public Defender, and Valerie Jonas, Assistant Public Defender, for appellant.
Charles J. Crist, Jr., Attorney General, and Roberta G. Mandel, Assistant Attorney General, for appellee.
Before SCHWARTZ, C.J., and GREEN, J., and BARKDULL, THOMAS H., JR., Senior Judge.
Following the failure of police officer Adams, one of the two alleged victims, to appear at the time of trial in support of a charge of resisting arrest with violence, the trial court proceeded to prevent defense counsel from arguing in closing that an adverse inference arose from the state's failure to call Adams as a witness. We find this was error when there was no adequate explanation for Adams' absence. See Martinez v. State, 478 So.2d 871, 871-72 (Fla. 3d DCA 1985) (citing United States v. Mahone, 537 F.2d 922 (7th Cir. 1976)). Therefore, the conviction, adjudication, and sentence are reversed, and the matter is returned to the trial court for a new trial.
Reversed and remanded.
SCHWARTZ, C.J., and BARKDULL, Thomas H., Jr., Senior Judge, concur.
I respectfully dissent. Under the facts of this case, I do not believe that the trial court abused its discretion in precluding the defense from arguing, in closing, an adverse inference from the State's failure to call one of the victims to the stand.
In August 2001, uniformed Officer Denise Bernhard detained Johnny Beard because he matched the description given by a citizen's complaint. Officer Bernhard asked Beard his name and where he was going. Beard gave several different names and said he had no identification. Beard's agitated manner, clenched fists, and uncooperative behavior prompted Officer Bernhard, who was working alone that day, to call for a back-up officer. Officer Franklin Adams soon arrived on the scene. Officer Bernhard asked Beard to sit down on a small retaining wall near a chain-link fence, but he kept sitting down and standing up. He continued to give false names to the police, but when his true name was eventually given, it appeared in a police database in connection with a civil writ of attachment lodged against him.
Given that there was an outstanding writ of attachment against Beard and that he fit the complainant's description, Officer Bernhard took out her handcuffs. Beard flailed his arms and said he didn't want to go. He lunged at Officer Bernhard, causing her to move backward. Both officers tried to handcuff Beard, who was struggling and kicking. Officer Bernhard managed to handcuff Beard's left arm, but he continued to struggle. Officer Bernhard tried to clamp the other end of the handcuff to the chain-link fence in back of Beard, but she was unsuccessful.
Officer Bernhard called for emergency back-up. Beard then moved in such a way that he fell forward, causing both officers to fall to the ground along with him. Officer Bernhard sustained injuries which required stitches to her knee and left a scar. Officer Adams suffered a sprained wrist and a rotator cuff injury. Beard continued to struggle until he was eventually subdued by several officers. Beard was charged by information with, among other things, resisting arrest with violence towards "Officer D. Bernhard and/or Officer F. Adams[.]" Beard's counsel deposed Officer Adams before trial, but neither the State nor the defense called him to testify. At trial, Officer Bernhard and two other police officers did testify. Beard conceded that he had resisted arrest, but denied that he had resisted with violence. During closing argument, Beard's counsel argued that the state had not met its burden of proof with regard to Officer Adams because the officer had not testified. The State objected, citingHaliburton v. State, 561 So.2d 248 (Fla. 1990). The judge sustained the objection and instructed the jury to disregard defense counsel's remark regarding Officer Adams's absence. This is the sole issue on this appeal.In Haliburton, the Florida Supreme Court held that a party may make an inference based on the opposing party's failure to call a witness when it is shown that (1) the witness was peculiarly within the opposing party's power to produce and (2) the testimony of the witness would elucidate the transaction. Id. at 250 (citing Martinez v. State, 478 So.2d 871, 871 (Fla. 3d DCA 1985)). Under the first prong of the Haliburton test, a witness is deemed to be peculiarly within a party's power to produce when that witness has a "special relationship" to the party. See Martinez, 478 So.2d at 872. One such type of special relationship exists where the witness is "a police officer closely associated with the government in developing its case [who] had an interest in seeing his police work vindicated by defendant's conviction." Id. (citing United States v. Mahone, 537 F.2d 922, 926-27 (7th Cir. 1976)). Officer Adams, without question falls into this category, and the defense therefore met the first prong of the Haliburton test.
Beard was also charged with separate counts of battery against Officer Bernhard and Officer Adams. He was acquitted on both charges.
The defense did not, however, meet the second prong of theHaliburton test requiring it to demonstrate that Officer Adams's testimony would have somehow "elucidated" Beard's encounter with the police. See Haliburton, 561 So.2d at 250;Mahone, 537 F.2d at 927. The defense never presented the trial court with argument as to how Officer Adams's deposition testimony would have elucidated or clarified Beard's encounter with the police. If Officer Adams's deposition testimony revealed any new information about the police encounter with Beard, it was incumbent upon the defense under Haliburton to bring this to the trial court's attention. Since the defense failed to make a showing in the record that Officer Adams's testimony would have been anything other than cumulative to the other evidence presented at trial, the defense was not entitled to argue that an adverse inference could be drawn from the State's failure to call Officer Adams. See Haliburton, 561 So.2d at 250; Mahone, 537 F.2d at 927 (holding where testimony would be merely cumulative, a party may not make any inferences regarding a witness's failure to testify). The trial court therefore did not abuse its discretion in disallowing such argument. See Esty v. State, 642 So.2d 1074, 1079 (Fla. 1994) (applying abuse of discretion or standard to trial court's control of attorney's comments); accord Breedlove v. State, 413 So.2d 1, 8 (Fla. 1982); Goodrich v. State, 854 So.2d 663, 664 (Fla. 3d DCA 2003) (citing Crump v. State, 622 So.2d 963, 972 (Fla. 1993)).
Moreover, notwithstanding the fact that the defense failed to make the requisite showing under Haliburton for an entitlement to make the adverse inference argument, it must also be emphasized that the State's information charged Beard disjunctively with resisting "Officer D. Bernhard and/or Officer F. Adams[.]" Thus, in order to find Beard guilty, the jury needed proof beyond a reasonable doubt that he resisted either one or both of the officers with violence. The State, through the testimony of Officer Bernhard, produced competent, substantial evidence for the jury to believe that Beard was guilty of this offense, at least against Officer Bernhard. Thus, there was really no need for the State to additionally call Officer Adams to the stand.
The sufficiency of this evidence has not been challenged on appeal.
For all of the foregoing reasons, there is simply no legal basis for a reversal of this conviction and sentence and it should be affirmed.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF.