GERARDO ARROYO-MUNOZ, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 2d DCA | 1999-10-20
No. 98-03774
BLUE, A.C.J., and FULMER and DAVIS, JJ., Concur.
744 So. 2d 536 Florida District Court of Appeal, Second District (1999)

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Gerardo Arroyo-Munoz was convicted of vehicular homicide and culpable negligence after a highway passing accident that killed two people. The Florida appellate court reversed his convictions and remanded for a new trial because the prosecutor improperly gave unsworn testimony during cross-examination of a defense witness by commenting on facts not in evidence.


Holding

The trial court abused its discretion by permitting the prosecutor to comment on facts outside the record, specifically regarding the witness's false identity and blood alcohol content. Although such information was relevant to witness credibility, prosecutors cannot give unsworn testimony about facts not supported by evidence.


Headnotes

[1] A prosecutor may not give unsworn testimony regarding facts outside the record during cross-examination of a defense witness.

[2] A trial court abuses its discretion by allowing a prosecutor to comment on facts not in evidence during cross-examination.

Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.

Join FLexlaw to unlock all legal intelligence

Key Quotes

“a prosecutor may not give unsworn testimony regarding facts outside the record”

Establishes the core legal principle that prosecutors cannot testify about facts not in evidence during cross-examination

Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.

Join FLexlaw to unlock all legal intelligence

Facts & Procedural History

On August 16, 1997, Arroyo-Munoz attempted to pass a black pickup truck on a two-lane highway in his Camaro, causing a multi-vehicle accident that kil…

The full statement of facts, procedural history, and disposition for this case are member content.

Join FLexlaw to unlock all legal intelligence

© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.


Opinion of the Court
PER CURIAM.

PER CURIAM.

Gerardo Arroyo-Munoz (“Arroyo-Munoz”) appeals his convictions for vehicular homicide and culpable negligence. Although Arroyo-Munoz raises several issues on appeal, we find only one with merit. Arroyo-Munoz argues the trial court erred by allowing the prosecutor to give unsworn testimony during, cross-examination of a defense witness. We agree that the trial court abused its discretion, reverse Arroyo-Munoz’s convictions, and remand this case for a new trial.

On August 16, 1997, while driving a white Camaro, Arroyo-Munoz attempted to pass a black pickup truck on a two-lane highway. Victor Benitez rode in the passenger seat of the Camaro. When Arroyo-Munoz attempted to return to his proper lane, he lost control of the Camaro. The Camaro veered back into oncoming traffic, causing a multiple-car accident that resulted in the death of two persons.

The State presented witnesses who testified that Arroyo-Munoz did not have enough room to make the pass, and that oncoming traffic had to take evasive action as Arroyo-Munoz completed the pass. In contrast, Arroyo-Munoz testified that the black pickup truck caused the accident. He said the truck sped up as he tried to make the pass and hit the rear bumper of his Camaro as he completed the pass.

Benitez testified that the black pickup truck sped up when Arroyo-Munoz tried to pass, and he heard a cracking noise when the Camaro moved back into its original lane. The black pickup did not stay after the accident occurred and could not be located afterwards. There was no other testimony that the pickup struck the Camaro.

The State called Benitez during its case in chief for the limited purpose of identifying Arroyo-Munoz as the driver of the Camaro. While testifying for the State, Benitez appeared in a work shirt with another person’s name on it. Arroyo-Mu noz also called Benitez to testify during the defense’s case in chief.

On cross-examination, the prosecutor asked Benitez where he was employed. The prosecutor inquired, “Could you explain to me-I called Kimmins Construction, I’ve checked with payroll, I’ve checked with the head foreman, and they have no records of a Victor Benitez working there?” Arroyo-Munoz objected to the question and requested a mistrial or a curative instruction. The trial court overruled the objection, denied the motion for mistrial, and denied the request for a curative instruction. Benitez then admitted that his real name was Ernesto Hernandez.

Later, the prosecutor asked Benitez why his blood alcohol content was .10 at the hospital after the accident. Arguing that no evidence before the jury supported the question, Arroyo-Munoz objected to the question and once again moved for a mistrial. Again, the trial court overruled Arroyo-Munoz’s objection and denied the request for a mistrial. Benitez then admitted that he had been drinking on the night of the accident.

The jury found Arroyo-Munoz guilty as charged and this appeal followed. Citing Pacifico v. State, 642 So. 2d 1178 (Fla. 1st DCA 1994), Arroyo-Munoz argues that the trial court erred by allowing the prosecutor to comment on facts not in evidence. We agree. Although testimony about a false identity and intoxication were relevant to Benitez’s credibility, a prosecutor may not give unsworn testimony regarding facts outside the record. See, e.g., Cantero v. State, 612 So. 2d 634 (Fla. 2d DCA 1993).

This error became particularly egregious when the prosecutor, during closing arguments, urged that the jury should not believe Benitez because he withheld his true name. Since Benitez was the sole witness the defense presented to corroborate Arroyo-Munoz’s testimony, and the State failed to show that the prejudicial comments did not contribute to the verdict, we reverse Arroyo-Munoz’s conviction and sentence and remand for a new trial. See State v. DiGuilio, 491 So. 2d 1129 (Fla.1986).

Reversed and remanded for new trial.

BLUE, A.C.J., and FULMER and DAVIS, JJ., Concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Authorities Cited

Full citator, related cases, and AI research tools

Open in FLexlaw