ROBERT LEE YOUNG, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Robert Lee Young was convicted of robbery after a trial in which the court improperly limited cross-examination of an investigator and refused to instruct the jury on lesser included offenses. The Florida appellate court reversed, finding both rulings constituted reversible error.
The trial court erred in both rulings. When an investigating officer testifies about what eyewitnesses told him regarding a robber's actions, cross-examination about the eyewitnesses' description of the robber constitutes the same subject matter and is proper. Additionally, when evidence presents a Class 3 category offense situation, trial courts have a mandatory duty to instruct on all lesser included offenses.
[1] A defendant is entitled to cross-examine an investigating officer regarding descriptions given by eyewitnesses when the officer testifies about information received from…
[2] A trial court must instruct the jury on all lesser included offenses when the evidence presented falls within a category requiring such instructions.
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“permitting the investigating officer to relate what the alleged eye witnesses saw, as to where the purported robber placed his palm print, opened up the investigating officer for cross-examination as to what description the alleged eye witnesses gave of tbe purported robber, as this constituted a part of the same 'subject matter' testified to by the investigating officer”
Establishes the principle that cross-examination scope is determined by the subject matter of direct testimony
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Join FLexlaw to unlock all legal intelligenceYoung was charged with robbery and unlawful possession of a firearm while engaged in a criminal offense. During trial, an investigator testified about…
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BARKDULL, Chief Judge.
The appellant was charged with an information containing the following crimes : robbery, in violation of § 813.011, Fla.Stat., and unlawful possession of a firearm while engaged in a criminal offense, in violation of § 813.011, Fla.Stat. During the trial, an investigator (who investigated the robberies that took place at a local supermarket) testified as to a conversation he had with certain purported eye witnesses as to where the purported robber placed his palm on the counter in order that he could instruct the fingerprint technician where to dust for prints. Upon cross-examination, defense counsel was limited by the trial court in that he was not permitted to cross-examine the investigating officer as to the witness’ description to him of the purported robber. At the charge conference, defense counsel requested the following charges be giv en in addition to the charge on the crime of robbery, to wit: assault with intent to commit robbery; aggravated assault; simple assault; grand larceny; and petit larceny.
The trial court declined to instruct on the foregoing requests.
The jury retired, reached a not guilty verdict on the charge of unlawful possession of a firearm while engaged in a criminal offense, and reached a verdict of guilty on the robbery charge. An adjudication of guilt was entered and sentence was entered accordingly. This appeal ensued.
The appellant urges error in the above two rulings by the trial court.
We find the appellant’s contentions to be meritorious. The other rulings urged to be error are found to be without merit. State v. Jones, Fla.1967, 204 So. 2d 515; Ricks v. State, Fla.App.1971, 242 So. 2d 763; Smith v. State, Fla.App.197l, 243 So. 2d 602; Henry v. State, Fla.App.1974, 290 So. 2d 73; § 924.33, Fla.Stat.
We hold that permitting the investigating officer to relate what the alleged eye witnesses saw, as to where the purported robber placed his palm print, opened up the investigating officer for cross-examination as to what description the alleged eye witnesses gave of tbe purported robber, as this constituted a part of the same “subject matter” testified to by the investigating officer. See: Savage v. State, Fla.1882, 18 Fla. 909; Haager v. State, 83 Fla. 41, 90 So. 812; Elmore v. State, Fla.App.1974, 291 So. 2d 617.
Under the latter day Supreme Court decisions, including the most recent of State v. Terry, Fla.1976 (opinion filed February 25, 1976), in a situation where'in a Class 3 category (as described by Justice Thornal in Brown v. State, Fla.1968, 206 So. 2d 377) is presented in the evidence, it is incumbent and mandatory that a trial judge charge on all lesser included offenses. We have examined Gilford v. State, Fla.1975, 313 So. 2d 729, which the State urges is controlling. However, we do not find Jhe factual situation, as developed, comparable and therefore do not find it applicable in this instance.
Based on the foregoing, the robbery conviction and sentence appealed herein are hereby reversed and the cause is remanded to the trial court for a new trial consistent herewith.
Reversed and remanded for a new trial.
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Citator
Cited By
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Moore v. State, 341 So. 2d 814 (Fla. 2d DCA 1977)…ailing to give the requested instructions. Hammer v. State, 343 So. 2d 856, (Fla. 1st DCA opinion filed December 9, 1976); Silvestri v. State, 332 So. 2d 351 (Fla. 4th DCA 1976); Lightfoot v. State, 331 So. 2d 388 (Fla. 2d DCA 1976); Young v. State, 330 So. 2d 532 (Fla. 3d DCA 1976). We have considered appellant’s other point on appeal and found it without merit. Accordingly, this cause is reversed and remanded for a new trial. BOARDMAN, C. J., and HOBSON and McNULTY, JJ., concur. . In Lomax v. State, 322…
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Jackson v. State, 355 So. 2d 137 (Fla. 3d DCA 1978)…rial unquestionably supported the requested assault instructions. Cf. Moore v. State, 341 So. 2d 814 (Fla.2d DCA 1977). We reverse Jackson’s robbery conviction and sentence and remand the cause to the trial court for a new trial. See Young v. State, 330 So. 2d 532 (Fla.3d DCA 1976). Reversed and remanded.…
Authorities Cited
- Brown v. State, 206 So. 2d 377 (Fla. 1968)
- State v. Jones, 204 So. 2d 515 (Fla. 1967)
- Savage v. State, 18 Fla. 909 (Fla. 1882)
- Gilford v. State, 313 So. 2d 729 (Fla. 1975)
- Haager v. State, 83 Fla. 41 (Fla. 1922)
- Ricks v. State, 242 So. 2d 763 (Fla. 3d DCA 1971)
- Fla. Farm Bureau Ins. Cos. v. Robert M. Salisbury et ux., 290 So. 2d 73 (Fla. 2d DCA 1974)
- Hollis Smith and Edmond J. Duhart v. State, 243 So. 2d 602 (Fla. 3d DCA 1971)
- The State of Fla. ex rel. Hubert Lee Williams v. Shepard, 291 So. 2d 617 (Fla. 1st DCA 1974)
- Elmore v. State, 291 So. 2d 617 (Fla. 4th DCA 1974)