ARTHUR LEE BREEDLOVE, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Arthur Lee Breedlove was convicted of robbery and breaking and entering a dwelling with intent to commit robbery and assault, receiving two concurrent 20-year sentences. On appeal, the Florida District Court of Appeal affirmed, finding no reversible error in the trial court's evidentiary rulings or denial of the motion for new trial.
The trial court committed no reversible error. The use of an unlisted rebuttal witness was within the trial court's discretion. The motion for new trial was properly denied because the record supported the court's finding that the defense witness was not threatened or coerced. Reference to the defendant's prior incarceration was not reversible error because the defendant opened the door to his incarceration status and failed to object to the state's cross-examination evidence at trial.
[1] A trial court does not abuse its discretion by allowing a rebuttal witness not previously disclosed when circumstances warrant.
[2] A motion for a new trial based on witness coercion is properly denied if the court finds, after a hearing, that the witness was not threatened or coerced.
Previewing 2 of 3 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 ruling of the trial court permitting the state to use a rebuttal witness who had not been listed as an intended witness was not an abuse of discretion in the circumstances.”
Establishes that trial courts have discretion to allow unlisted rebuttal witnesses without committing reversible error.
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Join FLexlaw to unlock all legal intelligenceBreedlove was convicted of robbery and breaking and entering a dwelling with intent to commit robbery and assault. He claimed an alibi defense, suppor…
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PER CURIAM.
The appellant was informed against, tried and convicted of the separate offens es of robbery and of breaking and entering a dwelling with intent to commit robbery and therein committing an assault. Two sentences of 20 years imprisonment followed, with provision for the service thereof to be concurrent. The defendant appealed.
We hold no reversible error has been shown. The ruling of the trial court permitting the state to use a rebuttal witness who had not been listed as an intended witness was not an abuse of discretion in the circumstances. See Rowan v. State, Fla.App.1971, 252 So. 2d 851, 852, and cases cited there. The motion for new trial was properly denied. One of the witnesses who was to testify on the defendant’s defense of alibi had stated in a pretrial deposition that he had observed the defendant at a church fish fry held on the eleventh day of the month which was a Saturday. The offense occurred in the early hours of that day. The church held such fish frys on Friday and Saturday evenings. Before trial the witness appeared at the office of the state attorney and stated his prior deposition testimony that the date in question was the eleventh of the month was not correct, and that the correct date was the tenth.
At trial he testified as he had on the deposition. On motion for new trial it was contended the witness was threatened with perjury, and was coerced into adhering to his prior deposition testimony. The court conducted a hearing thereon at which testimony was given by a number of witnesses who were present at the state attorney’s office at the time involved. The conclusion of the court that the witness was not so threatened or coerced is supported by the record thereof. That ground of the motion for new trial was properly rejected.
The reference in testimony of a witness at trial, that the present status of incarceration of the defendant was for a previously committed robbery, was not reversible error in the circumstances shown. When the crime involved in this case was committed the defendant was serving a sentence of imprisonment, in a state detention work camp in Palm Beach County, from which it appears he was furloughed on the week ends. The defendant had brought out the fact of his incarceration status. Moreover, the evidence as to the nature of the crime for which he was so imprisoned, which was elicited by the state from a defendant’s witness on cross-examination, was not made the basis of an objection or motion to strike by the defendant at trial.
The judgment is affirmed.
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Lucas v. State, 376 So. 2d 1149 (Fla. 1979)…al witnesses, the necessity for whom the state can reasonably anticipate, are included within the operation of the rule. Hardison v. State, 341 So. 2d 270 (Fla. 2nd DCA 1977); Frazier v. State, 336 So. 2d 435 (Fla. 1st DCA 1976); Breedlove v. State, 295 So. 2d 654 (Fla. 3d DCA 1974); Rowan v. State, 252 So. 2d 851 (Fla. 3d DCA 1971). The rule further provides: (j) Sanctions. (1) If, at any time during the course of the proceedings, it is brought to the attention of the court that a party has failed to comp…
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Kilpatrick v. State, 376 So. 2d 386 (Fla. 1979)…tion, when applicable, the fact that the unlisted witness is sought to be used on rebuttal following presentation by the opposition of evidence which causes surprise. See, e. g. Holman v. State, 347 So. 2d 832 (Fla. 3d DCA 1977); Breedlove v. State, 295 So. 2d 654 (Fla. 3d DCA 1974); C.A.W. v. State, 295 So. 2d 329 (Fla. 1st DCA 1974); Rowan v. State, 252 So. 2d 851 (Fla. 3d DCA 1971). [*391] The record does not disclose any attempt by defense counsel, after arguing his objection, to seek an alternative remed…
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Holman v. State, 347 So. 2d 832 (Fla. 3d DCA 1977)…allow [*835] a non-listed witness to testify. However, this court has repeatedly noted that the trial court’s decision to allow a non-listed rebuttal witness is a matter of discretion, dependent on the circumstances of the case. Breedlove v. State, 295 So. 2d 654 (Fla. 3rd D.C.A. 1974); Rowan v. State, 252 So. 2d 851 (Fla. 3rd D.C.A. 1971). Turning to the facts in this case, the record discloses the victim identified the defendant, through police photographs, at a lineup and at trial as the person who broke…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Jewel Evangeline Rowan v. State, 252 So. 2d 851 (Fla. 3d DCA 1971)