WILLIS EARL DUPREE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Dupree appeals his conviction for sexual battery, challenging the trial court's decision to allow a rebuttal witness whose name had not been disclosed in discovery and who was present in the courtroom during earlier testimony. The court affirmed, finding no error in the trial court's discretionary rulings.
The trial court did not err in allowing Officer Jennings' testimony. The State could not have reasonably anticipated the need for this rebuttal witness since Malick's testimony about her relationship with Dupree was unknown until she testified. The trial court properly conducted an inquiry into the failure to disclose, and had discretion to allow the witness despite his presence in the courtroom, particularly because the need for his testimony was not known until the end of trial.
[1] A trial court does not abuse its discretion in allowing a rebuttal witness to testify when the need for that witness's testimony could not have been reasonably anticipate…
[2] A trial court must conduct an inquiry into the circumstances of a discovery violation before allowing an undisclosed witness to testify.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The State could not reasonably have anticipated the need to call Officer Jennings as a rebuttal witness since Malick's testimony concerning the nature of her relationship with Dupree was not known until she took the stand.”
Establishes that unexpected rebuttal witness needs may excuse discovery violations when the necessity for the witness could not have been anticipated.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceDupree was convicted of sexual battery under Florida law. At trial, the defense called Anita Malick as a witness to testify about an incident between …
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Witness Sequestration cases and more on FLexlaw
[*318] MILLS, Judge.
From his conviction and sentence for sexual battery by using physical force and violence not likely to cause serious personal injury, Section 794.011(5), Florida Statutes (1981), Dupree appeals, contending that the trial court erred in allowing the State to call a rebuttal witness. We affirm.
At Dupree’s trial, after the State had presented its case in chief, the defense called Anita Malick, who was to testify about an incident which occurred between Dupree and the victim approximately one week before the trial. She was allowed to testify over the State’s objection that her name had not been disclosed pursuant to discovery. On cross-examination, the prosecutor inquired into the nature of Malick’s relationship with Dupree. She responded that she had dated Dupree “a time or two.”
On rebuttal, the State attempted to call Officer Lee Jennings. He had been working as a jailer at the Washington County Jail approximately one week before the trial when Malick was brought in on a DWI charge. According to Officer Jennings, while Malick was in jail, Dupree showed up, identified himself as Malick’s fiance, and asked permission to see her. The defense objected to this testimony because the State had failed to disclose Officer Jennings’ name as a potential witness and because he was present in the courtroom during Malick’s testimony. The trial court overruled the objection and allowed Officer Jennings to testify.
There was no error in allowing this testimony. The State could not reasonably have anticipated the need to call Officer Jennings as a rebuttal witness since Mal-ick’s testimony concerning the nature of her relationship with Dupree was not known until she took the stand. In any event, the record shows that there was no violation of the rule set out in Richardson v. State, 246 So. 2d 771 (Fla.1971). The trial court conducted an inquiry into the circumstances surrounding the State’s failure to disclose Officer Jennings’ name before it allowed him to testify.
Neither did the trial court abuse its discretion in allowing Officer Jennings’ testimony even though he was present in the courtroom when Malick testified. The trial court has discretion to decide whether a witness should be excluded from the rule of sequestration. The burden is on the defendant to show an abuse of that discretion and a resultant injury. Spencer v. State, 133 So. 2d 729 (Fla.1961). We can discern no reason why the rule should be different in this case, where Officer Jennings was not initially placed under the rule because the need for his testimony was not known until almost the end of the trial.
AFFIRMED.
ERVIN, C.J., and LARRY G. SMITH, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Berry O. Russell v. State, 441 So. 2d 165 (Fla. 3d DCA 1983)…PER CURIAM. Affirmed. Watson v. State, 437 So. 2d 702 (Fla. 4th DCA 1983); Dupree v. State, 436 So. 2d 317 (Fla. 1st DCA 1983); Jackson v. State, 413 So. 2d 112 (Fla. 2d DCA 1982); Beck v. State, 405 So. 2d 1365 (Fla. 4th DCA 1981); Rowan v. State, 252 So. 2d 851 (Fla. 3d DCA 1971).…
-
Major Hines v. State, 719 So. 2d 358 (Fla. 1st DCA 1998)…ey who had acted in bad faith. See Id. Once it has determined the circumstances surrounding the violation, the trial court may then exercise its discretion in deciding whether or not exclusion of the witness is necessary. See, e.g., Dupree v. State, 436 So. 2d 317 (Fla. 1st DCA 1983). We are unable to conclude that the error was harmless. We can agree with the state’s argument on appeal that whether or not Cora Hines was afraid of appellant sheds little light on the question of whether appellant assaulted th…
Authorities Cited
- Richardson v. State, 246 So. 2d 771 (Fla. 1971)
- Emmitt Monroe Spencer v. State, 133 So. 2d 729 (Fla. 1961)