DAVID BAROWS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 4th DCA | 2002-01-23
No. 4D00-1769
FARMER and HAZOURI, JJ., concur.
805 So. 2d 120 Florida District Court of Appeal, Fourth District (2002) Negative Treatment
Cited by 20 cases

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

David Barows was convicted of robbery and appealed, challenging the trial court's exclusion of evidence regarding a potential civil forfeiture action against the victim's property. The court held that the trial judge abused its discretion by preventing cross-examination on this issue, as it was relevant to showing the victim's bias or motive to testify falsely.


Holding

Yes, the trial court abused its discretion. The threat of forfeiture was relevant to show bias or motive to testify falsely and should have been permitted under the Sixth Amendment and Florida law, which provide defendants broad latitude to cross-examine witnesses on potential motives to be untruthful. The error was not harmless beyond a reasonable doubt despite other impeachment opportunities.


Headnotes

[1] A defendant has a constitutional right to a full and fair opportunity to cross-examine prosecution witnesses to show bias or motive to be untruthful.

[2] Inquiries that might appear to lack a basis at the outset of a trial are permissible if counsel states a basis tending to show witness bias.

Previewing 2 of 5 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 defendant has a strong interest in discrediting a crucial state's witness by showing bias, an interest in the outcome, or a possible ulterior motive for his in-court testimony.”

Establishes the fundamental right to impeach witnesses through bias evidence

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

Barows was charged with home robbery of the victim King. King testified that after returning from strip clubs, a hooded assailant (later identified as…

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
STONE, J.

STONE, J.

Barows was convicted and sentenced for robbery. He asserts an abuse of discretion by the trial court in restricting defense counsel’s cross-examination of the victim/witness as to bias.

Barows was charged with home robbery. The victim, King, testified that upon returning home after making a round of strip clubs in Miami and Broward County, a hooded individual, later identified as Ba-rows, approached him with a gun. When King tried to run, the assailant struck him over the head and, together with a second individual, took him into his house.

Once inside the house, King was taken to his bedroom. King testified that Ba-rows removed jewelry and other belong ings from his dresser. The two assailants also took approximately $122,000 from a safe. After the robbery, King watched the two individuals flee in a Ford Explorer. King followed the Explorer until he saw Deputy Higgins. Higgins then joined King in the pursuit. When the two caught up with the Explorer, King immediately recognized the driver of the vehicle as his friend, Latrice Frazier. He recognized the other two individuals, Samuel Thomas and the appellant, Barows, as the ones who robbed him.

During a search of the Explorer, a blue ski cap, a .45 caliber semi-automatic handgun, a pair of handcuffs, and a paper bag containing approximately $122,000 was found inside. In addition, they found approximately $8,286 and some jewelry on Barows. Barows, however, denied any involvement in the robbery.

The source of the money was an issue at trial. Evidence indicated that King was involved in gambling activities out of his home and was also possibly involved in narcotics activities. In particular, after the robbery, King was taken to the Fort Lauderdale police station to make a statement. Prior to making the recorded statement, he told the investigating detectives that the $122,000 was money he had made from gambling. However, during the recorded statement, he never mentioned, nor was he asked about, the gambling activities. Detective McGowan testified that he did not consider the gambling activities relevant to the robbery investigation. Nevertheless, focus of the trial involved King and his activities.

Prior to trial, the state made a motion in limine to exclude evidence regarding King’s three prior drug convictions. The court granted the motion and allowed King to be questioned only as to the existence and number of his prior felony convictions. At trial, King denied being a drug dealer but acknowledged that he had been accused of being a drug dealer. The court also ruled, in limine, that the fact that police were alerted to the bag of money in the Explorer by the reaction of a K-9 narcotics dog was not relevant. During trial, and outside the presence of the jury, it was proffered that the dog had alerted officers to the bag, indicating the possibility that there were trace amounts of narcotics on the money in the bag. The court again ruled that the testimony would not be allowed in because it was not relevant to the issue of whether Barows participated in the robbery.

The state also moved, in limine, that no evidence be allowed as to the threat of a forfeiture action being brought over the money. Barows’ principle defense was that King was not a credible witness. Defense counsel argued that evidence of an impending forfeiture was relevant in that King would have a motive to lie if he was worried about a potential forfeiture of the $122,000. The trial court granted the motion, ruling that the forfeiture action was a civil matter unrelated to the case.

We conclude that it was an abuse of discretion not to allow the defense to question King over any concern regarding a possible forfeiture of his money, where such evidence was relevant to show bias or motive to he.

Section 90.608(2), Florida Statutes, as well as the Sixth Amendment to the United States Constitution, guarantee a defendant “the right to a full and fair opportunity to cross-examine prosecution witnesses in order to show their bias or motive to be untruthful.” See Chadwick v. State, 680 So. 2d 567, 568 (Fla. 1st DCA 1996) (citations omitted). Patently, “[a] defendant has a strong interest in discrediting a crucial state’s witness by showing bias, an interest in the outcome, or a possi ble ulterior motive for his in-court testimony.” Auchmuty v. State, 594 So. 2d 859, 860 (Fla. 4th DCA 1992); see Jones v. State, 577 So. 2d 606, 608 (Fla. 4th DCA 1991). Furthermore, “[b]ecause liberty is at risk in a criminal case, a defendant is afforded wide latitude to develop the motive behind a witness’ testimony.” Green v. State, 691 So. 2d 49, 50 (Fla. 4th DCA 1997) (citations omitted). Courts should even allow inquiries “that might at first blush appear to be lacking any basis at all thus far in the trial, so long as counsel states a basis tending ultimately to show such bias.” Purcell v. State, 735 So. 2d 579, 581 (Fla. 4th DCA 1999).

The witness’ interest in pending litigation arising out of the incident are proper areas for impeachment on cross-examination to show a witness’ possible bias or motive to be untruthful. See Livingston v. State, 678 So. 2d 895 (Fla. 4th DCA 1996); Cox v. State, 441 So. 2d 1169 (Fla. 4th DCA 1983).

Here, Barows should have been given the opportunity to question King about the possibility of a forfeiture because the avoidance of such a loss is certainly a motive to testify untruthfully. Although no forfeiture had yet been filed, the record indicated that a forfeiture action was being considered by the sheriffs office. Although the state correctly notes that the forfeiture action is not relevant to the issue of robbery, it is relevant to bias or motive to lie. See Purcell, 735 So. 2d at 580 (holding that trial court erred in refusing to allow defense counsel to impeach prosecution witness by showing bias).

We recognize, that Barows was given the opportunity to conduct an effective cross-examination of King which exposed other areas of impeachment. King was questioned extensively about the rather extravagant lifestyle he was able to afford and about the extensive gambling operation he conducted in a building behind his home. He was questioned about his nightly visits to strip clubs in the area and defense counsel asked King directly whether he had been a drug dealer. We also recognize that counsel was allowed to question King about the money, the fact that the police were still holding it, and whether he knew if or when his money would be returned to him. However, applying the mandate of Goodwin v. State, 751 So. 2d 537 (Fla.1999), we cannot say that the error was harmless beyond a reasonable doubt.

We, therefore, reverse and remand for new trial.

FARMER and HAZOURI, JJ., concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Wyon Dale Childers v. State, 936 So. 2d 585 (Fla. 1st DCA 2006)
    …essive use of force); • Shaw v. State, 831 So. 2d 772, 774 (Fla. 4th DCA 2002) (finding the trial court erred in excluding evidence of appellant’s complaints against police officers for use of excessive force during his arrest); • Barows v. State, 805 So. 2d 120, 122 (Fla. 4th DCA 2002) (finding the trial court erred in prohibiting appellant from cross-examination of State witness regarding the witness’ potential civil forfeiture of money “where such evidence was relevant to show bias or motive to lie”); •…
  • Minus v. State, 901 So. 2d 344 (Fla. 4th DCA 2005)
    …ow bias or prejudice, or to attack the credibility of a testifying witness, is broader than that of a civil defendant because of the defendant’s Sixth Amendment rights. See Mitchell v. State, 862 So. 2d 908, 912 (Fla. 4th DCA 2003); Barows v. State, 805 So. 2d 120, 122-23 (Fla. 4th DCA 2002). As we explained in Jones v. State, 577 So. 2d 606 (Fla. 4th DCA 1991): In Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), it was held that “exposure of a witness’ motivation in testifying is a prope…
  • Shaw v. State, 831 So. 2d 772 (Fla. 4th DCA 2002)
    …outcome, or a possible ulterior motive for his in-court testimony.’ Furthermore, ‘[bje-cause liberty is at risk in a criminal case, a defendant is afforded wide latitude to develop the motive behind a witness’ testimony.’ ” [c.o.] Barows v. State, 805 So. 2d 120, 122 (Fla. 4th DCA 2002); see also Green v. State, 691 So. 2d 49, 50 (Fla. 4th DCA 1997); Auchmuty v. State, 594 So. 2d 859, 860 (Fla. 4th DCA 1992); and Jones v. State, 577 So. 2d 606, 608 (Fla. 4th DCA 1991). Applying this important principle gen…

Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.

Join FLexlaw to unlock all legal intelligence

Authorities Cited

Full citator, related cases, and AI research tools

Open in FLexlaw