ALEX HERNANDEZ, APPELLANT,
v.
HONORABLE WILLIAM R. PTOMEY, JR., APPELLEE

Fla. 3d DCA | 1989-10-03
No. 88-2548
Before HUBBART, BASKIN and FERGUSON, JJ.
549 So. 2d 757 Florida District Court of Appeal, Third District (1989) Negative Treatment
Cited by 4 cases

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Synopsis

Alex Hernandez was charged with battery and resisting arrest. During trial, when defense counsel attempted to cross-examine the arresting officer about an internal review investigation that could lead to criminal charges, the judge declared a mistrial without any party requesting it. The court reversed, holding that a defendant has an absolute right to impeach a prosecution witness by showing the witness is under investigation that could lead to criminal charges, as this demonstrates potential bias or motive.


Holding

A criminal defendant has an absolute right to impeach a prosecution witness through cross-examination or otherwise by disclosing that the witness is under actual or threatened criminal charges or investigation leading to such charges, as this demonstrates potential bias, motive, or self-interest. The mistrial was improper because it prevented the defendant from exercising this fundamental right, and consequently a new trial would constitute double jeopardy; the trial court should have granted the motion to dismiss.


Headnotes

[1] A criminal defendant has an absolute right to cross-examine a state witness regarding actual or threatened criminal charges or investigations that could lead to such char…

[2] A mistrial declared sua sponte by a judge, without the consent of the defendant or the state, and without manifest necessity, may bar retrial on double jeopardy grounds.

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Key Quotes

“if a witness for the state is "under actual or threatened criminal charges or investigation leading to such criminal charges, a person against whom such person testifies in a criminal case has an absolute right to bring those circumstances out on cross-examination or otherwise."”

Establishes the core legal principle that defendants have an absolute right to impeach prosecution witnesses by revealing their status under criminal investigation or charges

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Facts & Procedural History

Hernandez was charged with battery and resisting arrest without violence and proceeded to jury trial in county court. During cross-examination of the …

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Opinion of the Court
PER CURIAM.

PER CURIAM.

Charged with battery and resisting arrest without violence, Alex Hernandez went to trial before a jury in the county court. During cross-examination of the arresting officer, defense counsel asked whether the officer was under internal review investigation for actions in other cases. Before the witness could respond, the judge dismissed the jury and declared a mistrial, finding that the question violated section 112.533(2), Florida Statutes (1987).1 Neither the state nor defendant had asked for the mistrial. Hernandez requested the court to dismiss the charges on the ground that retrial could constitute double jeopardy, but the trial court denied the motion. Hernandez petitioned the circuit court for a writ of prohibition. Following the circuit court’s denial of the petition, he instituted this appeal.

We reverse.

Pending or recent charges of unrelated offenses against a defense witness are not proper grounds for impeachment, Fulton v. State, 335 So. 2d 280 (Fla.1976); however, if a witness for the state is “under actual or threatened criminal charges or investigation leading to such criminal charges, a person against whom such person testifies in a criminal case has an absolute right to bring those circumstances out on cross-examination or otherwise.” Morrell v. State, 297 So. 2d 579, 580 (Fla. 1st DCA 1974) (emphasis supplied), cited with approval in Fulton v. State, 335 So. 2d 280, 284 (Fla.1976); Patterson v. State, 501 So. 2d 691 (Fla. 2d DCA 1987).

Defense counsel for Hernandez was attempting to elicit that information when the judge declared a mistrial. He sought to disclose that while he was testifying for the state against Hernandez in a criminal case, the arresting officer was under an internal review investigation that could lead to criminal charges. The implication is that the witness could benefit in exchange for aiding the state. The law allows Hernandez an absolute right to bring these facts to the jury’s attention in order to show bias, motive or self-interest.2 Torres-Arboledo v. State, 524 So. 2d 403, 408 (Fla.), cert. denied, — U.S.-, 109 S.Ct. 250, 102 L.Ed.2d 239 (1988), citing Fulton v. State, 335 So. 2d 280 (Fla.1976).

Under these circumstances, the mistrial was inappropriate and a new trial would place Hernandez in renewed jeopardy.

Consequently, the trial court should have granted the motion to dismiss, and because it failed to do so, the circuit court should have granted the petition for writ of prohibition.

Reversed and remanded.

. Section 112.533(2), Florida Statutes (1987), makes the disclosure of information concerning an internal investigation by a law enforcement agency a misdemeanor. . The officer could have asked for immunity before proceeding to answer the question. The rule enunciated in Morrell v. State, 297 So. 2d 579 (Fla. 1st DCA 1974), places a premium on the defendant’s ability to apprise the jury of any factors that could possibly bias a prosecution witness, such as the possibility that a "witness testified falsely to save his own skin.” Morrell, 297 So. 2d at 580.


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Cited By

  • McArthur Breedlove v. State, 580 So. 2d 605 (Fla. 1991)
    …his extends to situations where charges are no longer pending when the witness testifies, but were dropped in exchange for that testimony. E.g., Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986). . In Hernandez v. Ptomey, 549 So. 2d 757 (Fla. 3d DCA 1989), the district court held that a defendant should have been permitted to question a police officer about his being under an internal review investigation. The opinion, however, does not state what the defendant was charged with or…
  • Cherry v. State, 572 So. 2d 521 (Fla. 1st DCA 1990)
    …t allegation of error, we find that the trial court improperly disregarded Cherry’s absolute right to elicit facts showing a state witness’ bias, motive or self-interest. See Morrell v. State, 297 So. 2d 579 (Fla. 1st DCA 1974); Hernandez v. Ptomey, 549 So. 2d 757 (Fla. 3d DCA 1989). With regard to the second alleged error, the record does not show that counsel was provided notice and an opportunity to participate in the discussion of the action to be taken on the jury’s request. Thus, the trial court erred i…

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