PEDRO PATRICIO FONTICOBA, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Pedro Fonticoba was convicted of second-degree murder in the shooting death of his common-law wife. The court reversed his conviction and remanded for a new trial because the prosecutor violated a pretrial order by informing the jury during opening arguments that Fonticoba had failed a polygraph examination, which was inadmissible evidence.
The court held that the prosecutor's error was not harmless and required reversal and remand for a new trial. Because Fonticoba was the only person with knowledge of the actual circumstances of the shooting and the trial outcome depended largely on his credibility and which of his various pretrial statements the jury believed, the state could not meet its burden of demonstrating the polygraph disclosure error was harmless.
[1] The results of a polygraph examination are inadmissible in the absence of a stipulation.
[2] A prosecutor's violation of a pretrial order in limine by informing the jury of inadmissible polygraph results can constitute reversible error.
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Join FLexlaw to unlock all legal intelligence“the results of the polygraph examination were inadmissible”
Establishes that polygraph evidence is generally inadmissible in Florida absent stipulation
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Join FLexlaw to unlock all legal intelligenceFonticoba was charged with second-degree murder in the shooting death of his common-law wife, Mirtha Mon, in their bedroom. Fonticoba's defense was th…
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PER CURIAM.
The appellant, Pedro Patricio Fonticoba, was charged with second degree murder in the shooting death of his common law wife, Mirtha Mon, in the bedroom of their home. Although Fonticoba did not testify at his trial, his theory of defense was that the shooting was accidental and at best, he was only guilty of manslaughter. The jury convicted Fonticoba of second degree murder as charged and this appeal followed.
Fonticoba argues that he was deprived of his right to a fair trial where, Assistant State Attorney, Harvey Hyman,1 in direct violation of a pretrial order on his motion in limine, informed the jury during opening arguments that he had taken and failed a polygraph or “lie detector” test. The state concedes that in the absence of a stipulation, the results of the polygraph examination were inadmissible, see Delap v. State, 440 So. 2d 1242, 1247 (Fla.1983); Zeigler v. State, 402 So. 2d 365, 373 (Fla.1981); Sullivan v. State, 303 So. 2d 632, 634 (Fla.1974), but asserts that its error in this regard was harmless in light of the abundant evidence of Fonticoba’s guilt. See State v. DiGuilio, 491 So. 2d 1129, 1135, 1138 (Fla.1986). We disagree.
In this case, other than the deceased victim, Fonticoba is the only person with knowledge of the actual circumstances surrounding the discharge of the firearm. Although Fonticoba’s pretrial accounts of the shooting differed, he steadfastly maintained that the shooting was an accident. The state’s medical examiner opined that the shooting was a homicide but conceded that there was nothing about the physical evidence in this case that was inconsistent with the shooting being an accident. The state’s firearm expert was able to discredit Fontico-ba’s initial account that he accidentally discharged the gun while it was in the holster and explained that the gun’s safety mechanism precluded it from firing unless the trigger was pulled all the way back. However, the expert could not testify whether Fontico-ba fired the weapon as a reckless act of intimidation or with the intention to kill. Given the fact that the outcome of this trial depended, in large part, upon Fonticoba’s credibility and which of his various pretrial statements the jury elected to believe, we do not believe that the state can meet its burden under DiGuilio to demonstrate that its error in informing the jury of the results of Fonti-coba’s polygraph examination was harmless and did not affect the result of this trial. We therefore reverse and remand for a new trial.
Reversed.
. This is, we hope, the last in a series of cases where we are asked to consider what we have previously concluded to be the "unprofessional and unethical” behavior of Assistant State Attorney Harvey Hyman. See Izquierdo v. State, 724 So. 2d 124 (Fla. 3d DCA 1998); see also Lewis v. State, 711 So. 2d 205 (Fla. 3d DCA 1998); State v. Benton, 662 So. 2d 1364 (Fla. 3d DCA 1995). We have been advised that Mr. Hyman is no longer part of the Dade County State Attorney's office.
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Latonda Latrell Shannon v. State, 753 So. 2d 148 (Fla. 3d DCA 2000)…e quality of expert testimony. If the officer had administered a polygraph, he would have been unable to report his findings in the absence of a stipulation as to its admissibility. See Delap v. State, 440 So. 2d 1242 (Fla.1983); Fonticoba v. State, 725 So. 2d 1244, 1245 (Fla. 3d DCA 1999) (“in the absence of a stipulation, the results of the polygraph examination were inadmissible”); State v. [*150] E.J.J., 682 So. 2d 206, 208 (Fla. 5th DCA 1996) (“It is well established that in Florida, as in most states, po…
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)
- Sullivan v. State, 303 So. 2d 632 (Fla. 1974)
- Zeigler v. State, 402 So. 2d 365 (Fla. 1981)
- Delap v. State, 440 So. 2d 1242 (Fla. 1983)
- Lewis v. State, 711 So. 2d 205 (Fla. 3d DCA 1998)
- Zacarias Jaime Izquierdo v. State, 724 So. 2d 124 (Fla. 3d DCA 1998)
- State v. Benton, 662 So. 2d 1364 (Fla. 3d DCA 1995)