JOHN THOMAS O'STEEN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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John Thomas O'Steen was convicted of felon in possession of a firearm under Florida law. The appellate court reversed and remanded for a new trial, finding that the trial court erred by admitting prejudicial rebuttal testimony about prior firearm possession that fell outside the scope of the state's stated evidence limitation.
The trial court properly denied the motion for directed verdict as the deputy's testimony was sufficient to establish a prima facie case. However, the trial court erred in admitting the girlfriend's rebuttal testimony about prior firearm possession because it fell outside the stated evidence limitation and was neither proper impeachment nor admissible under the Williams rule.
[1] A trial court does not err in denying a motion for directed verdict if the prosecution establishes a prima facie case.
[2] Rebuttal testimony is inadmissible if it concerns collateral matters outside the scope of direct examination and does not contradict the witness's testimony.
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Join FLexlaw to unlock all legal intelligence“When a witness is cross-examined on collateral matters outside the scope of direct examination, the cross-examiner adopts the witness as his own and is bound by the answers the witness gives.”
Establishes the rule that the state cannot offer rebuttal testimony to contradict a defendant's testimony on collateral matters addressed in cross-examination.
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Join FLexlaw to unlock all legal intelligenceO'Steen was charged with possession of a firearm on August 6, 1985. The trial court granted the defense motion for a statement of particulars, limitin…
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ZEHMER, Judge.
John Thomas O’Steen appeals his conviction for violation of section 790.23, Florida Statutes (1985), which prohibits possession of a firearm by a convicted felon. We reverse for a new trial.
Appellant first contends that the trial court erred in denying his motion for directed verdict. We find that the testimony of Deputy Perdue, although not as definitive as one would normally expect in a prosecution under this statute, was sufficient to establish a prima facie case against defendant. The trial court did not err in denying the motion for directed verdict.
We conclude, however, that the trial court erred in allowing the state to elicit rebuttal testimony from appellant’s girlfriend that appellant had, at some unspecified time in the past, possessed a gun and used it to shoot at a chicken. The trial court granted the defense motion for a statement of particulars, and limited the state to proof that appellant had possessed a gun on August 6, 1985. The testimony complained of did not conform to that ruling, and its admission undoubtedly prejudiced the defense. Stang v. State, 421 So. 2d 147 (Fla.1982).
The state argues that the testimony was properly admitted as rebuttal because it impeached defendant’s testimony on cross-examination. The state also argues that this testimony was admissible as similar-fact evidence under the Williams rule.1
This testimony was not admissible for the purpose of impeachment. When a witness is cross-examined on collateral matters outside the scope of direct examination, the cross-examiner adopts the witness as his own and is bound by the answers the witness gives. Gelabert v. State, 407 So. 2d 1007, 1009-10 (Fla. 5th DCA 1981). In addition, the state did not lay a proper predicate for impeachment. The testimony complained of did not contradict appellant’s testimony because appellant, when asked about the incident with the chicken, testified only that he could not remember. The so-called impeachment testimony offered by the state did not undertake to prove that defendant was, in fact, lying when he said he did not remember. The state’s argument that this testimony was properly admitted under the Williams rule is also without merit. This evidence does not tend to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident with respect to the specific charge being prosecuted; rather, it tends only to prove bad character. Fla.Stat. § 90.404(2)(a) (1985).
Because appellant denied that he possessed a gun on the date charged and contradicted the testimony of Deputy Per-due, and because the improperly admitted testimony was the only evidence of possession, other than the testimony of the deputy sheriff, it is impossible for us to say that this error did not have an impact on the jury’s decision. Thus, admission of this testimony cannot be treated as harmless error. State v. DiGuilio, 491 So. 2d 1129 (Fla.1986).
The judgment is reversed and the cause is remanded for a new trial. In view of our resolution of appellant’s second issue, we do not reach the remaining two points, addressed to alleged sentencing errors.
REVERSED AND REMANDED.
BARFIELD, J., and PEARSON, TILLMAN (Ret.), Associate Judge, concur. . Williams v. State, 110 So. 2d 654 (Fla.), cert. denied, 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86 (1959), codified by Florida Statutes § 90.404.
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Carlyle Francis Dempsey v. Shell OIL Co., 589 So. 2d 373 (Fla. 4th DCA 1991)…e truth or falsity of the answer on the. collateral matter by adducing independent proof through other witnesses. Patterson v. State, 157 Fla. 304, 25 So. 2d 713 (Fla.) cert. denied, 329 U.S. 789, 67 S.Ct. 352, 91 L.Ed. 676 (1946); O’Steen v. State, 506 So. 2d 476 (Fla. 1st DCA 1987); McCormick on Evidence § 47 (3d ed. 1984). See also Hernandez v. State, 575 So. 2d 1321 (Fla. 4th DCA 1991); Gelabert v. State, 407 So. 2d 1007 (Fla. 5th DCA 1981); Fuente v. State, 549 So. 2d 652 (Fla.1989). Ehrhardt comments o…
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Faucher v. R.C.F. Developers, 569 So. 2d 794 (Fla. 1st DCA 1990)…e truth or falsity of the answer on the collateral matter by adducing independent proof through other witnesses. Patterson v. State, 157 Fla. 304, 25 So. 2d 713 (Fla.), cert. denied, 329 U.S. 789, 67 S.Ct. 352, 91 L.Ed. 676 (1946); O’Steen v. State, 506 So. 2d 476 (Fla. 1st DCA 1987); McCormick on Evidence § 47 (3d ed. 1984). In the instant case, not only was it inappropriate to try the unresolved issues in the New Hampshire proceeding before the Florida judge, but the appellees have not pointed to any place…
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LEE v. State, 566 So. 2d 264 (Fla. 1st DCA 1990)…ot be impeached with regard to this testimony by any of the normal means of subsequent impeachment, including contradiction testimony by another witness. Id at 1009; see also Gonzalez v. State, 538 So. 2d 1343 (Fla. 4th DCA 1989); O’Steen v. State, 506 So. 2d 476 (Fla. 1st DCA 1987). As was observed by the supreme court in State v. Lee, whether or not appellant had possessed a gun at any time on December 15, 1983, was a question completely collateral, irrelevant, and immaterial to any issue regarding the cha…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. DiGUILIO, 491 So. 2d 1129 (Fla. 1986)
- Williams v. State, 110 So. 2d 654 (Fla. 1959)
- Williams v. Florida, 361 U.S. 847 (U.S. 1959)
- White v. Illinois, 361 U.S. 847 (U.S. 1959)
- Gelabert v. State, 407 So. 2d 1007 (Fla. 5th DCA 1981)
- Stang v. State, 421 So. 2d 147 (Fla. 1982)