STEVEN WASHINGTON, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Steven Washington appeals his convictions for unlawful possession of a firearm by a convicted felon and carrying a concealed firearm. The appellate court affirms, rejecting his arguments that the initial arrest lacked probable cause and that the trial court improperly allowed the state to comment on his failure to call his cousin as a witness.
The trial court properly denied the suppression motion because the evidence of excessive speeding and forcing another vehicle to veer established probable cause for reckless driving arrest. The trial court also properly allowed the state's comment about the missing cousin witness because Washington asserted an affirmative defense of emergency/necessity that relied on facts only his cousin could clarify, and the cousin was peculiarly within Washington's power to produce.
[1] Probable cause for an arrest for reckless driving exists when a defendant travels at a highly excessive speed and forces another vehicle to veer out of the way.
[2] A narrow exception allows the state to comment on a defendant's failure to present evidence when the defendant asserts an affirmative defense and relies on facts that cou…
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“The uncontroverted evidence at the suppression hearing showed that not only did Washington travel at a highly excessive speed, but his vehicle forced another vehicle to veer out of the way when Washington's vehicle went airborne after crossing railroad tracks. This evidence was sufficient to establish probable cause for an arrest for reckless driving.”
Establishes that the trial court properly denied the suppression motion based on adequate probable cause for the initial reckless driving arrest.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligencePolice stopped Washington for reckless driving after observing him traveling at an excessive speed and forcing another vehicle to veer out of the way …
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RAMIREZ, J.
Steven Washington appeals his convictions and sentences for unlawful possession of a firearm or weapon by a convicted felon and for carrying a concealed firearm. We affirm.
Washington first argues that the trial court should have granted his motion to suppress because the police did not have probable cause to arrest him for reckless driving. We disagree. The uncontrovert-ed evidence at the suppression hearing showed that not only did Washington travel at a highly excessive speed, but his vehicle forced another vehicle to veer out of the way when Washington’s vehicle went airborne after crossing railroad tracks. This evidence was sufficient to establish probable cause for an arrest for reckless driving. See State v. Orozco, 607 So. 2d 464 (Fla. 3d DCA 1992).
Washington also complains that the trial court improperly allowed the State to comment on Washington’s failure to call his cousin as a witness. Generally, the state may not comment upon a defendant’s failure to present evidence, thereby shifting the burden to the defendant.
However, there is a “narrow exception to allow comment when the defendant voluntarily assumes some burden of proof by asserting the defenses of alibi, self-defense, and defense of others, relying on facts that could be elicited only from a witness who is not equally available to the state.” Jackson v. State, 575 So. 2d 181, 188 (Fla.1991).
In this case, Washington raised the affirmative defense of emergency or necessity when he elicited testimony from the arresting officer that Washington stated, at the time of his arrest, that he took the firearm away from his cousin because he was afraid that his cousin might shoot someone. Although the court in Jackson did not mention the defense of emergency or necessity, Washington’s defense was essentially the same as the defense of others in that Washington tried to protect others from his cousin, as well as protect his cousin from himself.
Additionally, we have recognized an inference adverse to a party based on the party’s failure to call a witness when the witness is peculiarly within the party’s power to produce and the testimony of the witness would elucidate the transaction. Martinez v. State, 478 So. 2d 871 (Fla. 3d DCA 1985). Washington’s cousin would be such a witness, particularly as he never revealed the name and address of the cousin. We thus find no error in allowing the State to comment briefly on whether Washington failed to call his cousin as a witness.
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Brosnan v. State Farm Fla. Ins. Co. & Lucille V. Brosnan (Fla. 5th DCA 2024)
Authorities Cited
- Jackson v. State, 575 So. 2d 181 (Fla. 1991)
- Martinez v. State, 478 So. 2d 871 (Fla. 3d DCA 1985)
- State v. Elain Orozco and Claudia Monegro, 607 So. 2d 464 (Fla. 3d DCA 1992)