ANTOINE L. PERKINS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 4th DCA | 1997-10-29
No. 96-3841
GLICKSTEIN, GUNTHER and POLEN, JJ. concur.
704 So. 2d 619 Florida District Court of Appeal, Fourth District (1997) Positive Treatment
Cited by 8 cases

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Synopsis

Appellant Perkins was convicted of attempted first degree murder and armed robbery. The court reversed and remanded for a new trial, holding that the trial court abused its discretion by preventing defense counsel from recalling a key state witness to establish that Perkins had been misidentified, particularly given that the defense theory was that Perkins's identical twin brother was the actual perpetrator.


Holding

Yes. The court held that the trial court abused its discretion in denying the defense's request to recall the witness. Given that identity was a critical issue in the case and the defense had timely informed the court of its basis for recalling the witness, the jury should have been permitted to hear evidence that might have significantly impacted resolution of the case.


Headnotes

[1] A trial court abuses its discretion by denying a defendant the opportunity to recall a state witness when the purpose is to elicit testimony that could significantly impa…

[2] A defendant's right to present a defense may be prejudiced by the denial of a timely request to recall a witness for cross-examination on critical issues.

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Key Quotes

“We reverse appellant's convictions and remand for new trial as we conclude that the trial court abused its discretion in not permitting appellant to recall one of the state's witnesses, given the critical issue of identity.”

States the core holding and basis for reversal

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Facts & Procedural History

Two males robbed Pizza Express and shot two people. Appellant, age 17, claimed he was misidentified and that his identical twin brother was actually o…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

A jury found appellant guilty of two counts of attempted first degree murder with a firearm and two counts of armed robbery with a firearm. We reverse appellant’s convictions and remand for new trial as we conclude that the trial court abused its discretion in not permitting appellant to recall one of the state’s witnesses, given the critical issue of identity.

Two males robbed Pizza Express and in the process shot two people. Appellant’s theory of defense was that he had been misidentified because it was in fact his identical twin brother who was one of the perpetrators, and not appellant. Appellant was seventeen years old at the time of the incident.

The state’s key identification witness was appellant’s high school teacher at the timé of the incident and had been a neighbor of the family until the twins were ten years old. She testified that she has known the Perkins twins since they were infants and is able to distinguish between the two; that she saw three youths running aside the Pizza Express building around the time of the incident; that she was sure that the one with the dark shirt and pants and a baseball cap was appellant; that when she called to appellant by name, he. did not verbally respond, but as he ran he turned, looked over his shoulder and gestured; that she was able to observe appellant’s face for several seconds; and that she heard the one she recognized laugh and this helped her to confirm that it was appellant and not his twin brother. During extensive cross-examination, the defense asked this witness about her previous deposition statement that she did not see the face. She explained that she saw appellant from the side and not straight on. In the deposition portion read by defense counsel; she also stated that she was not fairly sure that it was appellant because he did not respond when she called out appellant’s name; and that based on his failure to respond; she assumed it was the twin brother and not appellant. However, during its cross-examination, the defense failed to ask the witness whether she previously had told appellant’s aunt that she could not tell appellant apart from his twin. When the defense subsequently attempted to recall the witness, the trial court sustained the state’s objection.

In. Vazquez v. State, 700 So. 2d 5 (Fla. 4th DCA 1997), this court held it was an abuse of discretion not to allow the defense to reopen its cross-examination of a state witness where the purpose of such cross-examination is to weaken testimony given by the witness on direct examination by the state. In Louisy v. State, 667 So. 2d 972 (Fla. 4th DCA 1996), we reached a similar conclusion on the issue of not letting the defense reopen its case to recall a defense witness, saying:

Although the decision to allow a case to be reopened involves sound judicial discretion not usually interfered with on the appellate level, a denial will be reversed where the request is timely made and the jury will be deprived of evidence which might have had a significant impact upon the issues to be resolved.

Louisy, 667 So. 2d at 973-74 (citations omitted).

In fact, on appeal the state has not offered any reason to refute the appellant’s claim of error. Rather, the state contends that this issue has not been preserved for appellate review. We disagree because the record demonstrates that the defense apprised the trial court of its basis for calling the witness and the several discussions of this issue sufficiently informed the court of the testimony which the defense expected to elicit.

While the claimed error in sentencing is moot, appellant’s argument is unpersuasive.

GLICKSTEIN, GUNTHER and POLEN, JJ. concur.


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Citator

Cited By

  • Frazier v. State, 761 So. 2d 337 (Fla. 4th DCA 1999)
    …e Constitution of the United States and Article I, section 9, of the Florida Constitution. However, this court has repeatedly recognized that the trial court has discretion to grant or deny a request to recall a witness. See, e.g., Perkins v. State, 704 So. 2d 619, 620 (Fla. 4th DCA 1997); Louisy v. State, 667 So. 2d 972, 973 (Fla. 4th DCA 1996). If Frazier is suggesting that it violates his right not to incriminate himself, he waived that right when he took the stand to testify and became subject to cross-ex…
  • Fitzgibbons v. State, 745 So. 2d 452 (Fla. 3d DCA 1999)
    …made by the defense which indicated that the exclusion of the victim’s testimony was prejudicial. We therefore find the court’s exclusion of such testimony to be an abuse of discretion. See Hahn v. State, 58 So. 2d 188 (Fla.1952); Perkins v. State, 704 So. 2d 619 (Fla. 4th DCA 1997). We therefore reverse for a new trial. Reversed.…
  • State v. Slater, 762 So. 2d 1057 (Fla. 5th DCA 2000)
    …the request resulted in the exclusion of evidence that would have had significant impact upon the issues to be resolved. See Williamson v. State, 92 Fla. 980, 111 So. 124 (1926); Steffanos v. State, 80 Fla. 309, 86 So. 204 (1920); Perkins v. State, 704 So. 2d 619 (Fla. 4th DCA 1997); State v. Ellis, 491 So. 2d 1296 (Fla. 3d DCA 1986); Britton v. State, 414 So. 2d 638 (Fla. 6th DCA 1982); see also Register v. State, 718 So. 2d 350 (Fla. 5th DCA 1998). This is so regardless of whether the State had rested its…

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