MICHAEL HENRY MICHAELS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Michael Michaels was convicted of manslaughter for killing David Traas by punching him twice. The Florida District Court of Appeal reversed the conviction due to three significant trial errors: improper cross-examination questions about post-crime violence, admission of evidence of alleged post-offense conduct, and prosecutorial comment on the defense's failure to call a witness.
The court held that all three trial errors were improper and reversible. Cross-examination of a character witness regarding the defendant's reputation for violence must be limited to events prior to the offense being tried. The state should prove a defendant's reputation for violence through reputation testimony, not through cross-examination about specific acts of violence. Additionally, it is improper for the prosecution to comment on the defense's failure to call available witnesses.
[1] A party may not impeach its own witness unless the witness proves adverse.
[2] Cross-examination of a character witness regarding specific acts of the defendant should be limited to events occurring prior to the offense being tried when the defendan…
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Join FLexlaw to unlock all legal intelligence“such cross-examination of a character witness should be limited to events prior to the offense being tried when the defendant's reputation for peace and good order is in issue”
Establishes the primary rule limiting character witness cross-examination to pre-offense conduct when reputation for violence is at issue.
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Join FLexlaw to unlock all legal intelligenceMichaels was convicted of manslaughter for striking victim David Traas in the face twice with his fist on October 8, 1980. During trial, the defendant…
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DANAHY, Judge.
The defendant was convicted of manslaughter for causing the death of David Traas on October 8, 1980, by striking Traas in the face twice with his fist. The defendant appeals, raising three issues. We find merit in all three, and reverse for a new trial. To avoid recurrence of these matters on retrial, we will discuss all three issues.
On direct examination of its first witness, the state established the victim’s reputation for peacefulness. On cross-examination, the defense established that the witness had never seen the defendant violent. On redirect, the state was permitted by the trial judge to ask the witness “Have you heard that [the defendant] physically struck his wife on [March 4, 1981]?” The trial judge overruled an objection by the defense to this question, and denied a defense motion for mistrial on the ground that the question was improper. We hold that the trial judge erred.
The only justification for the question is that it was to test the witness’s actual knowledge of the defendant’s reputation for violence. It occurs to us initially that the question was improper because it was an effort by the state to impeach its own witness. A party is not permitted to impeach a witness called by that party unless the witness proves adverse. ' § 90.-608(2), Fla.Stat. (1981); Johnson v. State, 178 So. 2d 724 (Fla. 2d DCA 1965). The defendant, however, has not raised this issue and apparently the trial judge overlooked this aspect of the matter. But even if the impeachment effort was permissible, the question itself was improper in any event.
The general rule is that the state has the right to cross-examine a character witness for the defense as to his having heard of specific acts of the defendant. Greenfield v. State, 336 So. 2d 1205 (Fla. 4th DCA 1976); Annot., 13 A.L.R. 4th 796 (1982). However, we agree with the proposition that such cross-examination of a character witness should be limited to events prior to the offense being tried when the defendant’s reputation for peace and good order is in issue — as distinguished from his reputation for truth and veracity. Greenfield v. State. In the instant case, the defendant put in issue the question of his reputation as a violent person. But the state’s impeachment question pertained to an event which allegedly occurred several months after the occurrence of the crime for which the defendant was on trial. For this reason alone, the question was improper. During testimony by the defendant on his own behalf, the trial judge permitted the state to ask the defendant whether he had in fact struck his wife on March 4,1981. Again, this question was improper. Even though the defendant had put in issue the question of his reputation for violence, the state should have proved his reputation for violence through testimony about the defendant’s reputation, not by cross-examination of the defendant concerning prior criminal acts of violence. Dixon v. State, 426 So. 2d 1258 (Fla. 2d DCA 1983).
The third and last issue raised by the defendant concerns the extensive comment by the state in closing argument on the failure of the defendant to call the defendant’s daughter as a witness. It had been demonstrated during the trial that the defendant’s daughter, who was present when the alleged crime occurred, was available to testify. It is clearly improper for the state to comment on the defense’s fail ure to call witnesses. Kirk v. State, 227 So. 2d 40 (Fla. 4th DCA 1969).
For the foregoing reasons, we reverse and remand for a new trial.
HOBSON, Acting C.J., and SCHOON-OVER, J., concur.
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Kruse v. State, 483 So. 2d 1383 (Fla. 4th DCA 1986)…only rebut testimony on reputation for good moral character, by reputation testimony as to bad moral character, not by cross-examination about prior arrests or specific bad acts. Dixon v. State, 426 So. 2d 1258 (Fla. 2d DCA 1983); Michaels v. State, 429 So. 2d 338 (Fla. 2d DCA 1983); §§ 90.404(l)(a), 90.405, Fla. Stat. (1983). Here the state was allowed, through the guise of impeaching a character witness, to inform the jury that the appellant had been accused of other specific child sexual abuse crimes, evid…
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Fidel Romero v. State, 435 So. 2d 318 (Fla. 4th DCA 1983)…. 2d 949 (Fla. 3d DCA 1983) and cases cited therein. From these concerns has evolved the general rule that such comments constitute prejudicial and therefore reversible error. See Kirk v. State, 227 So. 2d 40 (Fla. 4th DCA 1969); Michaels v. State, 429 So. 2d 338 (Fla. 2d DCA 1983). On the other hand, where there is ample evidence of guilt, circumstances may render such an error harmless. Lane v. State, 352 So. 2d 1237 (Fla. 1st DCA 1977), cert. denied, 362 So. 2d 1054 (Fla.1978); Arline v. State, 303 So. 2d…
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State v. Michaels, 454 So. 2d 560 (Fla. 1984)…SHAW, Justice. This is a petition to review Michaels v. State, 429 So. 2d 338 (Fla. 2d DCA 1983) on the ground that it conflicts with Buckrem v. State, 355 So. 2d 111 (Fla.1978). We find conflict and jurisdiction. Art. V, § 3(b)(3), Fla. Const. Respondent was convicted of manslaughter. The evidence reflects that respondent’s…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Johnson v. State, 178 So. 2d 724 (Fla. 2d DCA 1965)
- Kirk v. State, 227 So. 2d 40 (Fla. 4th DCA 1969)
- Wall v. State, 336 So. 2d 1205 (Fla. 1st DCA 1976)
- Dixon v. State, 426 So. 2d 1258 (Fla. 2d DCA 1983)