JAMES WISINSKI, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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James Wisinski appealed his conviction, claiming the trial court erred by excluding character evidence regarding his reputation for truth and veracity. The Fourth District affirmed the conviction, holding that the reputation testimony was properly excluded because it was based on too small and narrow a group of people to constitute admissible character evidence.
The trial court did not abuse its discretion in excluding the reputation testimony. Character evidence based on the opinions of only three or four people lacks the breadth required by Florida law, which mandates that reputation testimony be based on discussions among a broad group of people to accurately reflect character rather than biased opinions of a few individuals.
[1] Reputation testimony must be based on discussions among a broad group of people to accurately reflect a person's character, rather than the biased opinions of a few indiv…
[2] A trial court has broad discretion in ruling on the admissibility of evidence, and its rulings will not be disturbed absent a clear showing of an abuse of discretion.
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Join FLexlaw to unlock all legal intelligence“The reputation must be based on discussions among a broad group of people so that it accurately reflects the person's character, rather than the biased opinions or comments of two or three persons.”
Establishes the legal standard that reputation evidence requires a sufficiently broad foundation, not just a few people's opinions.
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Join FLexlaw to unlock all legal intelligenceSeymour Haspell, who owned a muffler shop near where Wisinski lived and had known him for approximately one year, was called to testify about Wisinski…
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PER CURIAM.
We affirm appellant’s conviction and reject all three claims of error asserted on appeal. We discuss only one issue: that the trial court erred in refusing to permit a witness to testify as to appellant’s reputation for truth and veracity.
Seymour Haspell was called as a witness for appellant. He owned the Meineke Discount Muffler Shop near where appellant lived. He knew appellant approximately one year before appellant’s arrest. When appellant’s attorney attempted to question Mr. Haspell as to appellant’s reputation for truth and veracity in the community, the prosecution objected. Mr. Haspell stated that his impression was based on three or four people who worked with appellant or for Mr. Haspell. The trial court then sustained the prosecutor’s objection and refused to admit Haspell’s testimony.
Appellee argues that this was not error. In support of that position it relies on Parker v. State, 458 So. 2d 750 (Fla.1984), and Fike v. State, 455 So. 2d 628 (Fla. 5th DCA 1984). In Fike, the appellant contended it was error not to admit the reputation evidence of the state’s principal witness. The Fifth District affirmed, stating:
The testimony was to the effect that Bodner’s reputation in the “legal community” was questionable. However, the “legal community” apparently consisted of criminal defense attorneys, rather than the bar as a whole. As the court pointed out in Florida East Coast Railway Co. v. Hunt, 322 So. 2d 68 (Fla. 3d DCA 1975), cert. den., 336 So. 2d 600 (Fla.1976), the rule regarding use of reputation evidence from one’s working community should not be applied so as to confine the testimony to particular employees. Rather, the evidence must retain the quality of being “general.” See 29 Am.Jur.2d Evidence § 347 (1967). Here, the community was too narrow and thus the exclusion of the reputation testimony was proper. Id. at 629. (Emphasis supplied.) Parker is not dispositive, finding that the criminal justice system was neither neutral enough nor generalized enough to be classed as a community. The court went on to hold that, therefore, a police officer could not testify as to the defendant’s (who had had numerous encounters with the police) reputation for veracity.
Appellant relies largely on a quote from Ehrhardt, Florida Evidence, (2d Ed.1984) § 405.1:
The reputation does not have to be a matter of discussion in the community, since the lack of comment about a person may be the best evidence of a good reputation. For evidence concerning a person’s reputation to be admissible, it is not necessary to have the witness testify he had heard people discussing the character involved, but he must lay the foundation that he knows the person’s reputation for the trait involved.
(Footnotes omitted.) See also Eubanks v. State, 179 So. 2d 256 (Fla. 1st DCA 1965) (fact that witnesses who had known defendant for many years testified their opinion of defendant’s character was based primarily on the fact they had never heard anything bad about him did not render evidence inadmissible). While the above passage from Erhardt would seem to support appellant’s position, the same section goes on to state:
Thus, there has been a legislative recognition of the reliability of a person’s reputation in the neighborhood where the person resides or is employed. It appears that reputation testimony from the place of employment is appropriate without any predicate showing of “unavailability.” The reputation must be based on discussions among a broad group of people so that it accurately reflects the person’s character, rather than the biased opinions or comments of two or three persons.
(Emphasis supplied; footnote omitted.)
In the present case, the reputation testimony was based on three or four people who worked with appellant or for Mr. Has-pell. Given the small number of people, the limited cross-section, and the relatively short period of time Haspell had known appellant, we do not believe the trial judge abused his discretion in refusing to admit the testimony. See generally Muehleman v. State, 503 So. 2d 310, 315 (Fla.1987) (trial court is afforded broad discretion in ruling on the admissibility of evidence and its ruling will not be disturbed absent a clear showing of an abuse of discretion).
ANSTEAD, DELL and GUNTHER, JJ., concur.
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Citator
Cited By
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Larzelere v. State, 676 So. 2d 394 (Fla. 1996)…on in ruling on the admissibility of evidence and its rulings will not be disturbed absent an abuse of discretion), cert. denied, — U.S. -, 115 S.Ct. 2618, 132 L.Ed.2d 860 (1995); Welty v. State, 402 So. 2d 1159 (Fla.1981) (same); Wisinski v. State, 508 So. 2d 504 (Fla. 4th DCA) (trial court did not abuse its discretion in refusing to admit reputation testimony given the small number of people, the limited cross-section, and the relatively short period of time on which the reputation testimony was based), rev…
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Johnson v. State, 108 So. 3d 707 (Fla. 5th DCA 2013)…, and narrow section of community); Gonzalez v. State, 871 So. 2d 1010, 1011 (Fla. 4th DCA 2004) (reputation within family too narrow segment of community; source of evidence must be sufficiently broad to enhance its reliability); Wisinski v. State, 508 So. 2d 504, 505 (Fla. 4th DCA 1987) (reputation must be based on more than three or four persons); Fike v. State, 455 So. 2d 628, 629 (Fla. 5th DCA 1984) (reputation of witness among criminal defense lawyers too narrow). Here, the trial court was well within…
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Romans v. State, 221 So. 3d 647 (Fla. 4th DCA 2017)…3d DCA 2003) (citing Morrison v. State, 818 So. 2d 432 (Fla. 2002)). The trial court did not abuse its discretion in excluding the testimony because appellant did not show the witness’s testimony was sufficiently broad-based. See Wisinski v. State, 508 So. 2d 504, 506 (Fla. 4th DCA 1987) (finding no abuse of discretion in excluding reputation witness testimony based on three or four people who worked with appellant). Additionally, reputation testimony from coworkers is admissible only in the limited circumst…
Authorities Cited
- Parker v. State, 458 So. 2d 750 (Fla. 1984)
- Muehleman v. State, 503 So. 2d 310 (Fla. 1987)
- Fike v. State, 455 So. 2d 628 (Fla. 5th DCA 1984)
- Fla. E. Coast Ry. Co. v. Hunt, 322 So. 2d 68 (Fla. 3d DCA 1975)
- Eubanks v. State, 179 So. 2d 256 (Fla. 1st DCA 1965)
- ABC Liquors, Inc. v. State of Fla. on the relation of Frank M. Wolfe, 179 So. 2d 256 (Fla. 1st DCA 1965)