GARY JOHNSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Gary Johnson appeals his convictions for breaking and entering with intent to commit a felony and larceny of a firearm, challenging the trial court's exclusion of testimony regarding bias of a key witness and the imposition of a single sentence for two separate counts.
While it was error to exclude evidence of witness bias and refuse to allow a proffer for appellate review, the error was harmless because Johnson testified to the matter himself. However, it was error to impose one general sentence on two separate convictions; the case must be remanded for resentencing with directions to apportion the sentence between the two counts.
[1] A trial court errs by sustaining an objection to cross-examination questions designed to show a witness's bias or animus.
[2] A trial court errs by refusing to allow a proffer of testimony for the purpose of appellate review.
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Join FLexlaw to unlock all legal intelligence“While the question posed to witness Davis was proper cross-examination in an attempt to show bias or animus”
The court acknowledges that evidence of witness bias is a proper and established basis for cross-examination under Florida law
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Join FLexlaw to unlock all legal intelligenceJohnson was convicted on two counts: breaking and entering with intent to commit a felony, and larceny of a firearm. Willie Davis, an alleged accompli…
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[*253] McCORD, Justice.
Appellant was convicted on one count of breaking and entering with intent to commit a felony and on a second count of larceny of a firearm. The trial judge pronounced one sentence on the two counts. This appeal is from the judgments and sentence.
Appellant contends that the court erred in refusing to permit him to proffer certain testimony' of his mother, witness Josephine Johnson. Willie Davis, an alleged accomplice, testified against appellant at the trial. In attempting to show bias of Davis against him, appellant’s attorney, on cross-examination of Davis, asked “Did Josephine Johnson ever accuse you of stealing her silverware out of her home in Clear-water? An objection was made. In support of the question, appellant’s counsel stated: “Your Honor, may I state to the court at this time that I think the question goes to the potential interest or bias of the witness in testifying against the defendant Johnson here today and that’s why I pose the question.” The court sustained the objection. Later, Josephine Johnson (mother of appellant and also the sister of witness Willie Davis) was put on the stand by appellant in a further attempt to show bias of Davis against appellant. She was asked by appellant’s attorney whether Davis had ever stayed with her in Clearwater. She replied that he had and then she was asked the following question: “How did you and Willie Davis get along down there?” Objection was made, the court sustained the objection, and appellant’s counsel asked if he could make a proffer of her testimony out of the presence of the jury. The court declined to allow the proffer. Appellant’s counsel stated to the court that the question was a preliminary one leading into some difficulties that Mrs. Johnson had with Willie Davis while he was in Clearwater which he stated went to explain the interest and bias of Davis in accusing appellant of the crime. While the question posed to witness Davis was proper cross-examination in an attempt to show bias or animus [see Wallace v. State, 41 Fla. 547, 26 So. 713 (1899); Kirkland v. State, 185 So. 2d 5 (Fla. 2 DCA 1966); and Simmons v. Wainwright, 271 So. 2d 464 (Fla. 1 DCA 1973)] and it was error to exclude it and in addition to not' allow a proffer of it for the purpose of appellate review, we consider it harmless error in this case. From the statements made on the record by appellant’s counsel, it appears that he desired to show that because appellant’s mother had accused Davis of stealing her silver, Davis was giving false testimony against appellant. This is rather remote, as the trial court pointed out and, in addition, appellant when he took the stand testified to it. Thus, the jury had the inference before it for such weight as it considered should be given to it.
As to the trial court imposing one sentence on appellant for the two convictions, it was error to impose such a general sentence. King v. State, 320 So. 2d 19 (Fla. 2 DCA 1975).
The convictions are affirmed, but the general three year sentence is reversed. The case is remanded for resentencing with directions to apportion the three year sentence between the two convictions. Such resentencing may be accomplished by order of the court without the appellant appearing before the court.
RAWLS, Acting C. J., and SMITH, J., concur.
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Dorfman v. State, 351 So. 2d 954 (Fla. 1977)…ison authorities.7 Since Darden, the Second District Court of Appeal has regularly vacated all general sentences which have come to its attention.8 The First District Court of Appeal has now adopted the Second District’s position. Johnson v. State, 338 So. 2d 252 (Fla. 1st DCA 1976).9 The Third District Court of Appeal, which had also accepted Darden, has now [*956] limited its application to those general sentences which do not exceed the maximum sentence which could have been imposed as to any one of the…
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Hannah v. State, 432 So. 2d 631 (Fla. 3d DCA 1983)…lving the state witness and a family member of the accused rather than the accused himself, as long as the evidence tends to establish that the witness is appearing for any [*632] reason other than to tell the truth. D.C. v. State; Johnson v. State, 338 So. 2d 252 (Fla. 1st DCA 1976).1 The sixth amendment right to confrontation of witnesses requires that a defendant in a state criminal case be allowed to impeach the credibility of a prosecution witness by cross-examination to show bias. Denial of effective c…
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Brown v. State, 431 So. 2d 247 (Fla. 1st DCA 1983)…la. 1st DCA 1982); Piccirrillo v. State, 329 So. 2d 46 (Fla. 1st DCA 1976); Francis v. State, 308 So. 2d 174 (Fla. 1st DCA 1975). This court has also held, however, that the error in failing to permit a proffer can be harmless, see Johnson v. State, 338 So. 2d 252 (Fla. 1st DCA 1976), in which, “[f]rom the statements made on the record by appellant’s counsel, it appears that he desired to show that because appellant’s mother had accused Davis of stealing her silver, Davis was giving false testimony against ap…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Wallace v. State, 26 So. 713 (Fla. 1899)
- Simmons v. Louie L. Wainwright, 271 So. 2d 464 (Fla. 1st DCA 1973)
- Kirkland v. State, 185 So. 2d 5 (Fla. 2d DCA 1966)
- Costello King v. State, 320 So. 2d 19 (Fla. 2d DCA 1975)