HERVE JEAN-MARY, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Jean-Mary was convicted of burglary after a jury trial where the trial court improperly prevented cross-examination of a key state witness about her recently dismissed criminal charges. The appellate court reversed, finding that the defense was entitled to expose the witness's potential bias through questioning about her criminal history, and the error was not harmless because the other eyewitness was not sufficiently independent.
The trial court erred in precluding cross-examination of the witness about her recently nolle prossed criminal charges. Defendants are entitled to bring such facts to the jury's attention to show bias regardless of whether there is evidence of an explicit agreement between the witness and the state. The error was not harmless because the other eyewitness's testimony was not sufficiently independent to provide an alternative basis for conviction.
[1] A criminal defendant is entitled to question a prosecution witness about recent criminal charges, even if those charges were nolle prossed, to demonstrate potential bias,…
[2] The right to cross-examine a witness about pending or recently dismissed criminal charges exists even in the absence of evidence of a specific deal between the witness an…
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Join FLexlaw to unlock all legal intelligence“It is well established that when a prosecution witness is under actual or threatened criminal charges or was recently under an investigation which could result in criminal charges being filed against the witness, the defense is entitled to bring this fact to the jury's attention to show bias, motive, or self interest.”
Establishes the controlling legal principle that defendants have a right to cross-examine prosecution witnesses about pending or recent criminal charges to expose bias.
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Join FLexlaw to unlock all legal intelligenceJean-Mary was charged with two counts of burglary with assault. The state's two key witnesses were Tabitha Daniel (Jean-Mary's ex-girlfriend) and Swto…
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PER CURIAM.
Herve Jean-Mary appeals his conviction and sentence after a jury trial for burglary of an occupied dwelling. His sole contention on appeal is that the trial court improperly precluded him from questioning a key state witness about the witness’s recent criminal charge which was nolle prossed by the state approximately sixty to seventy days prior to this trial. We agree and reverse.
Jean-Mary was originally charged with two counts of burglary with assault therein. The state had two key witnesses in this case. One was Tabitha Daniel, Jean-Mary’s ex-girlfriend and mother of his child. The other was Ms. Daniel’s current boyfriend, Swtone Barreau. During the cross-examination of Daniel, the defense asked Daniel whether she had been charged and arrested for fraudulently obtaining title to an automobile. When the state objected, the defense proffered to the court at side bar that Daniel had been arrested and charged with fraudulently obtaining title to an automobile on May 7, 1994. The defense further proffered that the state nolle prossed this charge against Daniel in March 1995, roughly two months before the start of this trial.
The trial court sustained the state’s objection to the introduction of this evidence on the basis that there was no evidence of a “deal” having been struck between Daniel and the state for Daniel’s testimony in this case.
It is well established that when a prosecution witness is under actual or threatened criminal charges or was recently under an investigation which could result in criminal charges being filed against the witness, the defense is entitled to bring this fact to the jury’s attention to show bias, motive, or self interest. Breedlove v. State, 580 So. 2d 605, 608 (Fla.1991)(quoting Morrell v. State, 297 So. 2d 579, 580 (Fla. 1st DCA 1974)); Torres-Arboledo v. State, 524 So. 2d 403, 408 (Fla.), cert. denied, 488 U.S. 901, 109 S.Ct. 250,102 L.Ed.2d 239 (1988); Fulton v. State, 335 So. 2d 280, 283-84 (Fla.1976); Cortes v. State, 670 So. 2d 119 (Fla. 3d DCA 1996); Patterson v. State, 501 So. 2d 691 (Fla. 2d DCA 1987); Causey v. State, 484 So. 2d 1263, 1264 (Fla. 1st DCA 1986), quashed on other grounds, 503 So. 2d 321 (Fla.1987).
This rule applies even to the instant situation where the charges against the state’s witness have been recently dismissed or nolle prossed and there is no specific evidence of any agreement between the witness and the state. Lewis v. State, 623 So. 2d 1205 (Fla. 4th DCA 1993) (trial court reversibly erred when it precluded the defense from questioning the victim about unrelated criminal charges which had been filed against the victim and subsequently nolle prossed even in the absence of an agreement between the witness and the state); see also Sarmiento v. State, 371 So. 2d 1047 (Fla. 3d DCA 1979)(the defense’s entitlement to question a police detective about his recent criminal investigation by the state was not altered by the fact that the Grand Jury returned a no true bill against the detective since it was the defense’s contention that the detective had struck a deal with the state for his testimony), decision approved on other grounds, 397 So. 2d 643 (Fla.1981).
Thus, we find that the trial court erred in precluding the defense from cross examining the victim about her criminal charges which had been recently nolle prossed by the state.
The state, however, argues that this error is subject to a harmless error analysis because the jury could have convicted Jean-Mary based upon the testimony given by Barreau, the state’s other eyewitness. Given the intimate relationship between Barreau and the victim, under the circumstances of this case, we cannot find that Barreau’s testimony provided a truly independent basis for the jury’s verdict. Consequently, we cannot agree with the state that the error complained of was harmless under State v. DiGuilio, 491 So. 2d 1129 (Fla.1986). We therefore reverse and remand for a new trial.
Reversed and remanded for new trial.
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Lugo v. State, 845 So. 2d 74 (Fla. 2003)…of a deal during his trial. We agree with the trial judge that the relevant and permissible inquiry concerned Torres’s possible bias toward the State, not whether her lawyer accompanied her during questioning. Lugo’s reliance on Jean-Mary v. State, 678 So. 2d 928 (Fla. Sd DCA 1996), is misplaced. In Lugo’s case, unlike the circumstances in Jean-Mary, the witness under cross-examination had not been arrested and charged with a crime which would warrant further inquiry by defense counsel. Therefore, Jean-Mary…
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Mormon v. State, 976 So. 2d 1188 (Fla. 5th DCA 2008)…therefore, be vacated. We agree. This court has consistently held that the trial judge must specify in the written order or judgment what conditions the defendant violated. Brinson v. State, 866 So. 2d 1268, 1269 (Fla. 5th DCA 2004); Barta v. State, 678 So. 2d 928 (Fla. 5th DCA 1996); Forget v. State, 675 So. 2d 259 (Fla. 5th DCA 1996). We, therefore, vacate the judgment under review and remand for entry of a proper judgment specifying which conditions Mormon was found to have violated. Order VACATED; case…
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Donel Johnson v. State, 766 So. 2d 480 (Fla. 5th DCA 2000)…witness, Gentry. The state acknowledges that a defendant has the right to show that a prosecution witness has charges pending at the time of the testimony in order to show bias, motive or self-interest on the part of the witness. Jean-Mary v. State, 678 So. 2d 928, 928-929 (Fla. 3d DCA 1996). If a prosecution witness is under criminal charges at the time of the testimony, the defendant has the absolute right to bring this fact out on cross-examination so that the jury will be fully advised as to the witness’…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (15 total)
- State v. DiGUILIO, 491 So. 2d 1129 (Fla. 1986)
- State v. Causey, 503 So. 2d 321 (Fla. 1987)
- Torres-Arboledo v. State, 524 So. 2d 403 (Fla. 1988)
- Fulton v. State, 335 So. 2d 280 (Fla. 1976)
- State v. Sarmiento, 397 So. 2d 643 (Fla. 1981)
- McArthur Breedlove v. State, 580 So. 2d 605 (Fla. 1991)
- Morrell v. State, 297 So. 2d 579 (Fla. 1st DCA 1974)
- Ohio Power Co. v. Thomas, 488 U.S. 901 (U.S. 1988)
- Sarmiento v. State, 371 So. 2d 1047 (Fla. 3d DCA 1979)
- Gen. Elec. Co. v. United States, 488 U.S. 901 (U.S. 1988)