DUNSTALL v. STATE (1999)

ON MOTION FOR REHEARING

Pursuant to motion for rehearing, we vacate our prior decision in this cause dated December 22, 1998, and substitute therefor the following:

The defendant was found guilty following jury trial of two counts of sexual battery.   He moved for a new trial on the grounds, inter alia, of prosecutorial misconduct and trial court error in excluding exculpatory testimony.   This motion was denied by the trial court.   It should have been granted.   The state's case, consisting primarily of the testimony of the female victim, was that the seventeen year old defendant picked up the fifteen year old victim at her home on the evening of January 1, 1996;  he then drove her in a red two-door car to his apartment and forcefully assaulted her after they smoked marijuana together.

The only defense witness presented at trial was the defendant's father.   The father testified that the defendant lived in a converted garage of his grandmother's home in Brevard County.   The father lived in Avon Park. In mid-December, 1995, he gave his son a 1989 two-door red Ford Escort.   The defendant had curfew problems and a license suspension, which prompted his father to come to Brevard County on December 27th and confiscate the car keys, leaving the car at the grandmother's house.   The father testified:

Yes, I rounded up the keys, his keys, a set of keys that I purposely hid for emergency purposes, and the magnetic key that was on the vehicle.   Just as a safety factor, did a good search of the area to be sure there weren't any extras and I took them back to Avon Park with me.

To further insure that the car was not driven, according to the father's testimony, he recorded the odometer reading;  on the second weekend of January, 1996, he again noted the odometer reading and it was unchanged.

In this regard, defense counsel inquired:

Q. Did you, in fact, annotate the mileage?

A. Yes, sir.

Q. You wrote it down?

A. Yes, sir.

The state objected, stating “[w]e either have a discovery violation or we have hearsay.”   The trial court then heard argument outside the jury's presence.   The state argued that (1) if the mileage had not been recorded at the time it was noted then it would constitute inadmissible hearsay, or (2) if the mileage had been recorded, the testimony would be inadmissible because the state had not been advised of any such written notation.   Defense counsel responded that he was not seeking introduction of the actual mileage but rather the observation of the witness that the odometer reading remained unchanged between December 27, 1995 and mid-January 1996.   The trial court ruled:

․ I'm not going to let in the document in which he had written down, particularly since it's not been reviewed by the State ․ I think it is appropriate testimony, what his memory is.   If he's written it down, I don't think that would be relevant and will not let in any writing about the mileage.

(Emphasis added).

Thereafter defense counsel further inquired of the witness:

Q. Did you happen to annotate what the mileage was on that car at that time?

A. Yes, I did.

 * * *

Q. The second week of January of '96, sir, did you happen to check the odometer?

A. Yes, sir.

Q. How did the odometer reading in the second week of January of '96, compare to the odometer reading, when you left the car and took the keys on December 27th or December 28th of 1995?

A. It was the same.

On cross-examination, the state inquired of the witness:

Q. And you checked the mileage odometer on that car before you left, correct?

A. Yes.

Q. And that was after you said you were sure you confiscated all the keys?

A. At the same time.

Q. You checked it again when you came back in January?

A. Yes.

 * * *

Q. Did you write down the mileage on the day when you first checked it?

A. Yes, I did.

Q. Do you have that written down with you today?

A. Yes, I do.

Q. Could you please present it to us?

Is that the number that you wrote down at the time you recorded it?

A. Uh-hum. That is the exact piece of scratch paper that I took with me as the mileage and odometer, I mean as the trip odometer.

And the other evening going through some papers at the house, there it was.

Q. So you had that piece of paper with you this morning then?

A. Yes.

STATE:  Your Honor, the State objects on a discovery violation on part of the defense.

The jury was removed and argument was again had.   The state urged that it had been prejudiced by the defense's failure to disclose the piece of paper on which the witness had noted the odometer reading because the state had not been able to investigate the matter fully.   The trial court noted:

It's certainly a critical issue as to whether or not the car was moved, because the victim's testimony was that he picked her up and drove her there and then drove her home.   You cross-examined her at some length about the description of the car.   She said that she didn't remember what kind of car it was and she said that she didn't remember what color it was.1

The trial court then concluded that a discovery violation had occurred and granted the state's motion to strike the father's testimony.   Accordingly, the jury was instructed:

Ladies and gentlemen, after argument of counsel over the issue, I am going to rule that it was error to admit evidence of the mileage of the car and I should not have admitted it, and I instruct you to disregard it.

The state initially objected to the introduction of the actual slip of paper on which the witness had noted the mileage, twice categorizing it as a discovery violation in the presence of the jury, and thereby insinuating wrongdoing by the defendant.   At the bench conference, counsel for the defendant indicated that he had no intention of introducing the actual notation.²  The trial court clearly ruled that the actual writing would be inadmissible.   Defense counsel complied with the trial court's ruling and merely elicited from the witness his observations that the odometer reading had remained unchanged between December 1995 and mid-January 1996.   However, despite the trial court's ruling, the state asked the witness to produce the writing, and, incredibly enough, then proceeded to object when the witness complied.   Based on this objection, the trial court erroneously struck the exculpatory testimony of the witness.

 The issues presented to the jury in the instant case rested on a determination of the victim's credibility.   Thus, the odometer reading which cast doubt on her statement that the defendant picked her up in a two-door red car could have been critical to a defense theory.   This evidence was precluded by the violation by the prosecutor of the trial court's previous ruling.   In striking the witness's testimony, the trial court allowed the state to profit by its own misconduct.³  We cannot condone the tactics of the prosecutor nor can we find the error in this case to be harmless pursuant to State v. DiGuilio, 491 So.2d 1129 (Fla.1986).   Accordingly, the defendant's conviction is reversed, and this cause is remanded for a new trial.

REVERSED AND REMANDED.

Initially, my instinct was to affirm Dunstall's conviction.   The facts were straight-forward and the reluctant victim's ¹ testimony was corroborated by testimony of other witnesses and by the victim's description of Dunstall's residence.   This case appeared to me to be no more distinctive than the many other one-on-one sexual batteries that are reviewed by appellate courts daily.   However, after reading the majority opinion, and rereading the trial transcript, I agree that the case should be reversed because the improper prosecutorial conduct created an error that cannot be deemed harmless.

Defense attorneys have reached legendary status in this country because of the “innocent” defendants they have helped to acquit or the righteous legal causes they have advanced in the face of social pressure and ostracism.   Their legends have become part of the layman's landscape because of plays, movies, and television.   Unfortunately, these legends are often the product of inept or unethical prosecutors;  prosecutors who violate not only their oath of admission to The Florida Bar, but also the aspirational ideals and goals of professionalism of The Florida Bar.

When an attorney becomes a member of The Florida Bar, the attorney is required to take an oath.   Part of that oath reads:  “I will employ for the purpose of maintaining the causes confided to me such means only as are consistent with truth and honor, and will never seek to mislead the judge or jury by any artifice or false statement of fact or law.”   In this case, the prosecutor's objections created a Hobson's choice for the defense attorney which deprived Dunstall of an essential part of his defense:  violate the court's ruling and argue excluded evidence or argue that there was not enough evidence for conviction;  that if there was sexual intercourse, it was consensual after the victim used drugs.²  The objection to pertinent evidence was unprofessional.   More significant to me, however, is that the prosecutor showed no regard for the aspirational ideals and goals of professionalism which were adopted by the Board of Governors of The Florida Bar on May 16, 1990.   These aspirational guidelines suggest that a lawyer use his or her “position and power in an honest and fair manner which respects the dignity of others, promotes the public good, and protects our system of equal justice under the law.”   Also, it suggests that a “lawyer at all times be guided by a fundamental sense of honor, integrity, and fair play․”  Based upon the prosecutor's behavior in this case, it appears she followed neither her oath of office nor the ideals and goals of professionalism of The Florida Bar.

Moreover, the improper conduct of the prosecutor violates several general standards promulgated by the American Bar Association for prosecutors.   Standard 3-1.1(e) reads in part:

As used in this chapter, the term “unprofessional conduct” denotes conduct which, in either identical or similar language, is or should be made subject to disciplinary sanctions pursuant to codes of professional responsibility in force in each jurisdiction.   Where other terms are used, the standard is intended as a guide to honorable professional conduct and performance.   These standards are not intended as criteria for the judicial evaluation of alleged misconduct of the prosecutor to determine the validity of a conviction.   They may or may not be relevant in such judicial evaluation, depending upon all the circumstances.

Standard 3-2.8 reads in part:

It is unprofessional conduct for a prosecutor intentionally to misrepresent matters of fact or law to the court.

The prosecutor's conduct in this case violates her oath of office as member of The Florida Bar, and the ideals and goals of professionalism and standards set by the American Bar Association.   Unfortunately, in this case, the prosecutor's zeal interfered with her obligations as a lawyer and as a prosecutor, and caused her to forget that the role of the prosecutor is not simply to obtain a conviction, but is to seek justice.   Here, the prosecutor was not seeking justice.

FOOTNOTES

1.   On at least two occasions, the victim had testified that the defendant picked her up in a red two-door hatchback car.

2.   In this regard, defense counsel stated:I was simply preparing to ask him if he came back at a later date and checked the mileage to see if it was the same and see if the vehicle had been moved.   An what its going to show is that the time that he checked it was after January 1st․I  don't think it really matters what the real mileage was, Your Honor.   The fact that he checked the mileage at a future time, and he determined that it was the same mileage that existed when he took the kid's keys away, I think that this is the key testimony and that is not hearsay.   That is what he observed.

3.   After having the testimony of the father in regard to the odometer reading stricken, thereby precluding defense counsel from alluding to it in his closing argument, the prosecutor proceeded to attack the father's odometer testimony in her rebuttal argument after the defense closing.   Obviously, the prosecutor was playing with a different set of rules.

1.   The victim only reported the crime after her mother found a letter to her friend which detailed the facts of the sexual battery.   Her mother confronted her, she explained what happened, and the family called the police.

2.   The victim admitted to using a bong to smoke marijuana.

COBB, J.

GRIFFIN, C.J., concurs. THOMPSON, J., concurs specially with opinion.