A. MCD., A JUVENILE, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE

Fla. 3d DCA | 1982-11-09
No. 81-2210
Before HUBBART, C.J., and BARK-DULL and NESBITT, JJ.
422 So. 2d 336 Florida District Court of Appeal, Third District (1982) Positive Treatment
Cited by 29 cases

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Holding

The court held that the trial court did not err in restricting cross-examination regarding an officer's disciplinary investigations because no offer of proof was made to establish relevancy.


Headnotes

[1] Failure to make an offer of proof as to the substance of excluded evidence precludes appellate review of the alleged error.

[2] A party must make an offer of proof to preserve for appellate review the exclusion of evidence, unless the substance of the evidence is apparent from the context.

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Facts & Procedural History

The defendant was adjudicated delinquent for battery on a police officer and resisting arrest. Defense counsel attempted to cross-examine an arresting…

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Opinion of the Court
NESBITT, Judge.

NESBITT, Judge.

The defendant appeals an adjudication of delinquency upon two counts of battery on a police officer and one count of resisting arrest with violence. The defendant entered a plea of not guilty, contending at trial that the police officers had in fact assaulted the defendant.

The defendant first contends that the trial court improperly sustained the state’s objection when, on cross-examination, defense counsel asked one of the arresting officers, “Have you ever been subject to any disciplinary investigations?” The defendant in a criminal case is accorded wide latitude in the cross-examination of prosecutorial witnesses. Mendez v. State, 412 So. 2d 965 (Fla. 2d DCA 1982); Porter v. State, 386 So. 2d 1209 (Fla. 3d DCA 1980); Lutherman v. State, 348 So. 2d 624 (Fla. 3d DCA 1977). All witnesses are subject to cross-examination for the purpose of discrediting them by showing bias, prejudice, or interest. Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974); D.C. v. State, 400 So. 2d 825 (Fla. 3d DCA 1981). The defendant cites several cases1 for the proposition that inquiry into prior or pending disciplinary action is proper cross-examination. While we are in agreement with those decisions, under the facts of the present case, we find no error. It is axiomatic that failure to proffer what the excluded evidence would have revealed precludes appellate consideration of the alleged error. Cason v. Smith, 365 So. 2d 1042 (Fla. 3d DCA 1978); Seaboard Air Line Railroad Co. v. Ellis, 143 So. 2d 550 (Fla. 3d DCA 1962). The Florida Evidence Code, Section 90.104, Florida Statutes (1979) provides:

(1) A court may predicate error, set aside or reverse a judgment, or grant a new trial on the basis of admitted or excluded evidence when a substantial right of the party is adversely affected and:
(b) When the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer of proof or was apparent from the context within which the questions were asked.

In the present case, no offer of proof was made to indicate the testimony to be elicited from the police officer. The bare question, “Have you ever been subject to any disciplinary investigations?” provides no insight as to its relevancy.2 Thus, while it is clear that a disciplinary investigation, concerning prior incidents of excessive force or arising out of the arrest of this defendant, would be relevant; it is equally apparent that a prior investigation for something remote in time, or unrelated to excessive force would not be relevant. See Morrell v. State, 297 So. 2d 579 (Fla. 1st DCA 1974) (fact that two years earlier undercover agent became involved in police work in order to prevent criminal charges from being prosecuted against him for his own arrest in a narcotics case, and charges had been dropped six months earlier, was not relevant to show bias). It is in this crucial respect that the instant case is distinguishable from those cited by the defendant. In each of those decisions, the relevancy was apparent from the question being asked or from the proffer that was made.3 We therefore find that the absence of such .a proffer in the present case precludes our review of the alleged error. The appellant, in apparent reliance upon Section 90.104(3), Florida Statutes (1979)4 and Davis v. Alaska, supra, argues that the restriction of cross-examination constitutes fundamental error for which this court must reverse. We disagree. This section can hardly be applied where the party fails to make an offer of proof since, as a result of this failure, there is an absence of material in the record to disclose the error. See Law Revision Council Note to § 90.104(3), Fla.Stat.Ann. (1976).

We next consider the defendant’s contention that the trial court improperly refused to allow inquiry into the substance of conversations which the three arresting officers had with the state attorney in the presence of each other. In Duncomb v. State, 237 So. 2d 86 (Fla. 3d DCA 1970), this court held that curtailment of cross-examination on this issue is not improper since

[t]he only value or materiality to the defendants of disclosing that the said state witnesses were interviewed in the presence of each other prior to trial, was that the credibility of those witnesses could be considered by the jury to have been lessened through the possibility that one may have been influenced (beyond his personal observation or recollection) by information supplied by another, during such joint interrogation.

237 So. 2d at 87. Once the fact became known, the trier of fact was in a position to consider the credibility of the witnesses.

For the foregoing reasons, we affirm.

. Mendez v. State, supra; D.C. v. State, supra; Lutherman v. State, supra; Webb v. State, 336 So. 2d 416 (Fla. 2d DCA 1976).

. We can only conclude by the absence of a proffer that the attorney was engaging in a fishing expedition during trial. To propound such a question, without knowing what the answer would be, can only serve to taint the minds of the jurors. An attorney who employs such tactics deserves a rebuke from the trial judge.

. Mendez v. State, supra, (proffer of police officer’s prior suspensions without pay for excessive use of force, as well as pending investigation for pulling a revolver on a traffic violator); D.C. v. State, supra, (evidence that the defendant’s sister had filed a complaint against police officers who arrested defendant); Lutherman v. State, supra, (cross-examination of police officer for police brutality in making the defendant’s arrest); Webb v. State, supra, (proffer that defendant was being framed by the police department because of a pending civil suit for false arrest).

.Section 90.104(3):

Nothing in this section shall preclude a court from taking notice of fundamental errors affecting substantial rights, even though such errors were not brought to the attention of the trial judge.

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Citator

Cited By (28 total)

  • State v. Pettis, 520 So. 2d 250 (Fla. 1988)
    …ppeal from entertaining state petitions for certiorari from pretrial orders in criminal cases. We agree that the trial judge below erred in permitting the police officer to [*254] be questioned concerning unrelated reprimands. See A. McD. v. State, 422 So. 2d 336 (Fla. 3d DCA 1982); Morrell v. State, 297 So. 2d 579 (Fla. 1st DCA 1974). However, we cannot say that the ruling was a departure from the essential requirements of law.5 While some pretrial evidentiary rulings may qualify for certiorari, it must be…
    1 / 2
  • McArthur Breedlove v. State, 580 So. 2d 605 (Fla. 1991)
    …nrelated to the case at bar.6 Thus, this Court has stated that a trial court “erred in permitting the police officer to be questioned concerning unrelated reprimands.” State v. Pettis, 520 So. 2d 250, 253-54 (Fla.1988). Likewise, in A.McD. v. State, 422 So. 2d 336, 338 (Fla. 3d DCA 1982), the court held that, although “a disciplinary investigation, concerning prior incidents of excessive force or arising out of the arrest of this defendant, would be relevant[,] ... a prior investigation for something remote i…
  • Malla Landry v. State, 620 So. 2d 1099 (Fla. 4th DCA 1993)
    …d 605 (Fla.1991). Where there is an issue of whether or not excessive force was used by the officer in this case, prior investigations into this officer’s use of excessive force in other cases are relevant. Breedlove at 609, citing A. McD. v. State, 422 So. 2d 336, 338 (Fla. 3d DCA 1982). Thus, it was error to restrict cross-examination of the officer on this matter. In addition, we are compelled to address conduct by the attorneys in this case which appears to us to have exceeded the bounds of acceptable be…

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