THE STATE OF FLORIDA, APPELLANT,
v.
JOHNNY KITCHEN, APPELLEE
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The State of Florida appeals a trial court's dismissal of an armed robbery charge against Johnny Kitchen, who claimed transactional immunity after being deposed as an alibi witness in another defendant's case. The appellate court reversed, holding that Kitchen was not entitled to transactional immunity because his testimony was voluntary and non-incriminating.
The trial court erred in granting transactional immunity. Kitchen is not entitled to transactional immunity because (1) he voluntarily testified without objection despite being subpoenaed only as to his presence, not to his testimony, and (2) even if compulsory appearance satisfied the compulsion requirement, his testimony was not incriminating and did not constitute evidence linking him to the crime for which he was subsequently charged.
[1] Transactional immunity under Section 914.04, Florida Statutes (1975), requires that a witness be compelled to testify, not merely compelled to appear.
[2] A subpoena compelling a witness's presence does not automatically compel the witness's testimony for purposes of transactional immunity.
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“In order for a witness' testimony to result in transactional immunity, the witness must be compelled to testify.”
Establishes the foundational requirement for transactional immunity—compulsion to testify, not merely compulsory appearance.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceFelton Green was charged with armed robbery and named Kitchen as a possible alibi witness. Kitchen was subpoenaed and deposed regarding Green's wherea…
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PER CURIAM.
Appellant, the State of Florida, appeals from an order of the trial court dismissing an information filed by the state against appellee, defendant below.
One Felton Green, charged by information with, inter alia armed robbery, supplied the state with the name of appellee as a possible alibi witness, pursuant to Fla.R. Crim.P. 3.200. The state thereupon subpoenaed and deposed appellee concerning the Green alibi. At the time of the deposition, appellee was not a suspect and was only questioned as to the whereabouts of Green on the date of the alleged robbery.
Some time after appellee’s deposition had been taken, the Assistant State Attorney checked into Green’s past and discovered that in a prior case in which Green was charged with robbery, the defense had likewise relied upon the defense of alibi utilizing appellee as an alibi witness. This coincidence raised certain suspicions about appellee and his photograph was subsequently shown to the victim of the robbery in the Green case. The victim identified appellee as the other man who robbed him, along with Green. On November 17, 1976, an information was filed charging appellee with armed robbery. Appellee moved to dismiss the information claiming transactional immunity pursuant to Section 914.04, Florida Statute (1975). The trial court found that appellee was entitled to transactional immunity and dismissed the information. This appeal follows.
While a number of issues are raised on appeal, we need only consider one, to-wit: whether the trial court erred in granting appellee’s motion to dismiss the information based upon transactional immunity under Section 914.04, Florida Statutes (1975). We hold that it did so err, and reverse.
In order for a witness’ testimony to result in transactional immunity, the witness must be compelled to testify. State v. Newsome, 349 So. 2d 771 (Fla. 2d DCA 1977). Sub judlce, the record reveals that appellee voluntarily and without objection testified as to the whereabouts of Green on the night in question. While the subpoena compelled appellee’s presence at the offices of the State Attorney, it did not compel his testimony. Orosz v. State, 334 So. 2d 26 (Fla. 1st DCA 1976).
Even assuming that appellee’s mere compulsory appearance was sufficient to meet the compulsion requirement of Section 914.-04, appellee would still not be entitled to transactional immunity in that the testimony he gave at his deposition was not incriminating and in no way constituted a link in the chain of evidence needed to prosecute appellee for the offense for which he was subsequently charged. State ex rel. Mitchell v. Kelly, 71 So. 2d 887 (Fla.1954); see also Woodsmall v. State, 334 So. 2d 320 (Fla. 1st DCA 1976).
Accordingly, the order appealed from is reversed and remanded for further proceedings.
Reversed and remanded.
PEARSON, J., dissents.
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State v. Jenny, 424 So. 2d 142 (Fla. 4th DCA 1982)…however, that the state’s coercive purpose did not relieve Melanson of the requirement that he assert his privilege against self-incrimination and receive a grant of immunity from the state. The Third District Court of Appeal, in State v. Kitchen, 353 So. 2d 897 (Fla. 3d DCA 1977), also made clear the necessity of the witness being compelled to testify in order for the testimony to result in immunity under the statute, citing State v. Newsome, 349 So. 2d 771 (Fla. 2d DCA 1977). In the latter case the court…
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Fadjo v. Coon, 633 F.2d 1172 (5th Cir. 1981)…tled with Fadjo. . Appellees argue that under Florida law an investigative subpoena compels only attendance and not testimony if the state attorney does not grant use immunity. Tsavaris v. Scruggs, 360 So. 2d 745, 749 (Fla. 1977); State v. Kitchen, 353 So. 2d 897, 898 (Fla.App. 1977), cert. denied, Kitchen v. State, 359 So. 2d 1216 (Fla. 1978). These cases dealt with claims that defendants should be immunized because of information provided to prosecutors. However, absent a claim of fifth amendment privilege…
Authorities Cited
- State ex rel. Mitchell v. Kelly, 71 So. 2d 887 (Fla. 1954)
- Orosz v. State, 334 So. 2d 26 (Fla. 1st DCA 1976)
- State v. Newsome, 349 So. 2d 771 (Fla. 2d DCA 1977)
- Woodsmall v. State, 334 So. 2d 320 (Fla. 1st DCA 1976)