DAVID HAMMETT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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David Hammett appealed his aggravated assault conviction, challenging the trial court's exclusion of evidence regarding the victim's drug use at the time of the alleged incident. The appellate court affirmed the conviction on most grounds but reversed and remanded for a new trial due to the improper exclusion of evidence showing the victim was using crystal methamphetamine when the alleged assault occurred.
The trial court abused its discretion in excluding evidence that the victim had been using crystal methamphetamine at or about the time of the incident. Such evidence was admissible under Florida law to impeach the victim's ability to perceive the alleged assault without requiring expert testimony showing the drug's specific effects on perception and memory.
[1] Evidence of a witness's drug use is admissible for impeachment if it can be shown that the witness was using drugs at or about the time of the incident or testimony, or i…
[2] Expert testimony is not necessary to establish the effect of drug use on a witness's ability to perceive or remember when the witness used drugs at or about the time of t…
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Join FLexlaw to unlock all legal intelligence“evidence of drug use for the purpose of impeachment [is excluded] unless: (a) it can be shown that the witness had been using drugs at or about the time of the incident which is the subject of the witness's testimony; (b) it can be shown that the witness is using drugs at or about the time of the testimony itself; or (c) it is expressly shown by other relevant evidence that the prior drug use affects the witness's ability to observe, remember, and recount.”
Establishes the three-part test for admitting drug use evidence for impeachment purposes under Florida law
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceHammett lived with his girlfriend Delsey Gaines. When Hammett returned home with groceries, he discovered the alleged victim Scott Helling and Gaines …
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NORTHCUTT, Judge.
David Hammett challenges his conviction for aggravated assault on several grounds. We find no error in the trial court’s inquiry into Hammett’s request to discharge appointed counsel, in the admission of prior consistent statements to rebut charges of recent fabrication, or in the prosecutor’s closing argument, and we affirm on these points without discussion. But we reverse based on the trial court’s exclusion of evidence regarding the victim’s drug use.
The State’s evidence described a day that culminated in an altercation between Hammett and the alleged victim, Scott Helling, during which Hammett allegedly threatened Helling with a steel bar.1 At the time of the incident, Hammett lived with his girlfriend, Delsey Gaines. That morning, when Hammett returned from the store with groceries, Helling was at their home. Helling testified that Hammett became upset at his presence for “no reason,” so Helling left at Hammett’s request. What the jury did not hear was evidence that upon Hammett’s arrival at the home he discovered Helling and Gaines smoking crystal methamphetamine. The trial court had granted the State’s motion in limine to exclude this evidence.
Later that day, Helling went back to the house, and he and Gaines drank a few beers with a friend named Michelle Chipps. Helling testified that Hammett arrived one to two hours later and that Hammett again became upset and belligerent for reasons that Helling did not know. Chipps called the police, but Hammett left before they arrived. Hammett then returned and asked Helling to leave. Hell-ing ran out the front door, and Hammett eventually followed. Helling testified that Hammett grabbed a bar from the bed of Ms pickup truck and threatened Helling with it when he was fifteen to twenty feet away. Hammett, on the other hand, testified that Helling had run down the alley and was approximately 150 to 200 feet away before Hammett picked up the bar. Hammett argues, and we agree, that the trial court abused its discretion in excluding the evidence of drug use. Hammett sought to introduce this evidence both to impeach Helling’s ability to perceive and to explain why Hammett was angry at Helling’s presence.
[E]vidence of drug use for the purpose of impeachment [is excluded] unless: (a) it can be shown that the witness had been using drugs at or about the time of the incident which is the subject of the witness’s testimony; (b) it can be shown that the witness is using drugs at or about the time of the testimony itself; or (c) it is expressly shown by other relevant evidence that the prior drug use affects the witness’s ability to observe, remember, and recount.
Edwards v. State, 548 So. 2d 656, 658 (Fla.1989). The trial court focused on the lack of expert testimony showing the drug’s effect on a person’s ability to perceive or remember, but such testimony was not necessary when the witness had been using drugs at or about the time of the incident which was the subject of the witness’s testimony.
The State argues that this issue was not preserved because defense counsel failed to make a proffer, but we conclude from the record that the substance of the evidence was made known. See § 90.104(l)(b), Fla. Stat. (2002); see also Reaves v. State, 531 So. 2d 401, 403 (Fla. 5th DCA 1988) (“While ordinarily the adversely affected party must proffer the excluded evidence to the court, a proffer is unnecessary when the substance of the excluded testimony is apparent from the context within which it was offered.”). Accordingly, we reverse.
Affirmed in part, reversed in part, and remanded for a new trial.
SILBERMAN, J., and THREADGILL, EDWARD F., Senior Judge, Concur. . In our record the three-foot steel bar is repeatedly referred to as a crowbar, but Hammett, an ironworker, testified that it was called a "sleeper bar,” which he used in his work to pry metal beams.
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Citator
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Petruschke v. State, 125 So. 3d 274 (Fla. 4th DCA 2013)…l failed to make a proffer and could have made a more cogent argument to the trial court regarding the relevance of this evidence, we find the issue was adequately preserved because the substance of the evidence was made known. See Hammett v. State, 908 So. 2d 595, 597 (Fla. 2d DCA 2005). Further, it was unnecessary for the defense to offer expert evidence regarding the effect of cocaine on the father’s ability to perceive. See Felton v. State, 949 So. 2d 342, 344 (Fla. 4th DCA 2007) (“In precluding the evide…
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Felton v. State, 949 So. 2d 342 (Fla. 4th DCA 2007)…ony showing the effects of methadone on a person’s ability to perceive; however, expert testimony is not necessary when the witness used drugs “at or about the time of the incident which was the subject of the witness’s testimony.” Hammett v. State, 908 So. 2d 595, 597 (Fla. 2d DCA 2005). Another basis for admitting the cross-examination about the victim’s methadone use is that the state opened the door to such testimony by portraying the victim in a misleading way on direct examination. On direct examinatio…
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German Pito Ayala v. State, 232 So. 3d 517 (Fla. 2d DCA 2017)…here the evidence is rejected as a class, or where the court indicates the proffer would, be unavailing.” (citing Seeba v. Bowden, 86 So. 2d 432, 434 (Fla. 1956), Wright v. Schulte, 441 So. 2d 660, 663 (Fla. 2d DCA 1983)); see also Hammett v. State, 908 So. 2d 595, 597 (Fla. 2d DCA 2005) (citing Reaves with approval). For the reasons.set forth.above, we reverse and remand for a new trial.3 Reversed and remanded. VILLANTI and SLEET, JJ., Concur. . We note that the State did not argue in its answer brief th…
Authorities Cited
- Derinda Edwards v. State, 548 So. 2d 656 (Fla. 1989)
- Reaves v. State, 531 So. 2d 401 (Fla. 5th DCA 1988)