Gulf Oil Company v. Bernard Brief for the United States and the EOC as Amici Curiae

    fia,/d"S/ 
{1d'a""'**+

., u 714 Fla. 371 SOUTHERN

ical, inculpatory evidence. See also Sl.ate v.

Armstrong,363 So.2d 38 (Fla. 2d DCA 1978)

which appears to conflict with the Johnson
decisions but does not conflict here because
of the court's determination that Arm-
stmng was not a "question of whether ap-
pellee Armstrong has been deprived of her
right to due process, which guarantees a
defendant access to relevant and material
evidence necessary for the preparation of
his defense."

[2,3] While under the ruling of State v.

Johnson, supra, it would ap1rcar the appel-
lant's right of confrontation was violated,
we are more imprcssed with the State's
violation of the appellant's fun,lamental
right of due process and are equally con-
cerned with the breaches of the Florida
Rules of Criminal Procedure and basic fair-
ness. The right of confrontation issue was
dealt with and discardedin Unitecl States v.

Herndon, 536 tr'.2d 1027 (5th Cir. 1976)

where illegal moonshine whiskey was seized
and destroyed by the government before
trial and the defendant's objection to evi-
dence about the whiskey was held to have
been properly overruled because the right
of confrontation only applies to witnesses
and not physical evidence. Of course, the
Fifth Circuit's ruling is not an interpreta-
tion of the Constitution of the State of
Florida, Art. I., S 16 and our Supreme Court
decision in Johnson is unaffected by Hern-
don. But more importantly, Herndon did
say "Whether a defendant has been de-
prived of the right of due process will de-
pend upon the materiality of the evidence,
the likelihood of mistaken interpretation of
it by government witnesses or thc jury, anrl
the reasons for i[s nonavailability to thc
defense."

ln Herndon the lawyer for the defense
expressly declared he did not file a motion
to obtain a sample of the whiskey mash
hecause he preferre<l to merely cross-exam-
inc thc expcrt witncss ts to thc analysis.
Not so hr:rc, thc aplxrllant mirrlc a tinrcly
motion t<r suppress after a timcly nrotion
for production and adequatc olljections at
trial, all to no avail.

REPORTBR, 2d SERIES

t4l While we tend to agree the right of
confrontation does pertain only to witnesses
we cannot out of hand dismiss the SfaLe v.

Johnson, supra, opinion from our Supreme
Court because of Hoffman v. Jones, UJO

So.2d 431 (Fla.1973). More importantly, we
recognize the logic in Herrera, Atkins, Arm-
stmng, Herndon, the logic behind Florida
Rule of Criminal Procedurc 3.2m(a)(1Xvi)
and find the due process clauses in our
constitutions require a reversal of this con-

viction. Additionally, if the state has a

suspected illegal drug or other evidentiary
itcm it expects to destroy by testing then
the better rule is to notify the sccused and

allow him to have some minimal participa-
tion in the testing process as was also said

in Herrera and Atkins in the third and

second appellate districts. A rule of crimi-
nal procedure would easily take care of
that.

REVERSED.

LETTS, J., concurs. 
,

CROSS, J., dissents without opinion.

Jesue Rivae PEREZ, Appellant .,
v../- \

STATE o( Florida, [ppellee. ,\--*'t-/" ' "
No. 78-1591.

District Court of Appeal of Florida,
Sfgril:t.i.t, 

i

June 8, 1979. , ;.

Dcfendlr. r 'rs 'onvicted in the Circuit
Court, Har<ie, t rurrty, Thomas M. L8n8-
ston, J., of first-degree murder 8nd aggrr"
vatcrl lrtttery and he appealed. The Db
trict Court of Alrpcal, Boardman, J., h€ld

that: (l) it was reversible error to alhu
prosecutor to amend indictment during tb
trial and to allow deputy to teetify tbl

MLd,r

{

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I



circumstances, trial court should havc given
defcndant's reqffi-

Reverse<l and remanded.

the right of
to witnesses

r the State v.

,ur Supreme
;. Jones, 28O

j,()rtantly, we
Atkins, Arm'

,'hind Flonda
3.22(aXrXvi)
lauses in our
;rl of this con-
, state has a

"r evidentiary
v testing then
,c accused and
imal particiPa-
, was also said
Lhe third and
. rule of crimi-

take care of

rt opinion.

,

Appellant'

Appellee.

,t ,,f Floridu,
i ct.

:)

r:rl in the Circuit
lrrrmas M. [,ang-
rrrler and aggra'
,.:rlcrl. The Dir'
',rrrlman, J., held

lr. r.:rror to rillow
t.ment during t}e
i to testifY tlrrt

PEREZ v. STATts
CIte as, Fla.App.,371 So.2d Tlrl

victim hatl told rlcJruty that <lefenrlant ha<l element of premeditation could only have
shot victim and his companions, and (2) been inferrc<l from defendant's actions and
although there was direct eyewitncss testi- other circumstances, trial court should have
mony as to defcntlant's con<luct, whcre ele- given rlefen<lant's requested instruction on
ment of prernerlitation could only have been circumstantial evidence. West's F.S.A.
inferred from defendant's actions and other g ?82.04(lXa).

l. Criminal l,aw e, 115714;

Indictment and Information e-16l(l)
Only grand jury has authority to alter

an indictmcnt; thus it was reversible error
to allow prosecutor to amend indictment
during the trial.

2. Criminal Law 6419(l), l169.l(9)
It was reversible error to allow deputy

to testify that victim of battery had told
deputy that defendant had shot victim and
his companions, since the testimony was not
only hearsay, but was consistent with vic-
tim's trial testimony.

3' IYitnesses 6318
Witness' prior consistent statement

may not be used to bolster his trial testimo-
ny.

4. Homicide *22(2)
Proof of premeditated design to effect

death of human being is required for con-
viction of first-degree murder. West's
F.S.A. S 782.04(1)(a).

5. Homicide e253(3)
In first<legree murder case, premedita-

tion may be estatrlished hy circumstantial
evidence. West's F.S.A. S 782.04(lXa).

riminal [/aw 6734(l)
Instruction on circumstantial evi<lence

is required where prosecution relies solely
or substantially on circumstantial evidence
to prove essential elemcnts of of fense
charged.

?. Criminal l,aw e73411;
Although therc was direct eyewitness

testimony as to conduct of tlefcndant
charged with first-degree murder, where

Fra. 715

Jack O. Johnson, Public Defender, and W.
C. McLain, Asst. Public Defender, Bartow,
for appellant.

Jim Smith, Atty. Gen., Tallahassee, and
William I. Munsey, Jr., Asst. Atty. Gen.,
Tampa, for appellee.

BOARDMAN, Ju<lge.

Jesus Pcrez appeals judgments and sen-
tences for one count of first<legree murtler
and two counts of aggravated battery. He
was convicted as charged and was given
concument sentences of life imprisonment
on the firstdegree murder charge and fif-
teen years on each of the aggravaterl bat-
tery charges. This appeal timely followed.
For the reasons hereinafter set forth we
reverse.

The testimonl, arl<luced at trial estab-
lished that 4Dtrdlant ran a fruit harvesting
crew for Carl',on Fruit Company. Roberto
Gutierrez, his son Joel Gutierrez, and Mar-
garito Ramirez wcre illegal aliens from
Mexico who workcd for appellant anrl lived
in his house for several weeks prior to the
incident in qucstion.

Joel Gutierrez and Ramirez. testificd that
their crew finishe<l working carly on Fri-
day, January 27, 1978, and that they left
the grove with apllellant anrl Roberto in
aplrcllant's pickup truck at about 2:00 p. m.
Aplrcllant tolrl the men that Border Patrol
officials were watching closely for illegal
aliens. He therefore drove back roads re-
turning from the grove. Appellant turned
down a dirt roa<l and left the three men in
an isolate<I, worxled area to hi<lc. Appellant
returnc<l ahout one to two hours later. Thc
thrce mcn wirlketl towarrl thc roarl to nrcct
him. Aplxrllrrnt sl"opped thc truck anrl,
without saying a worrl, lrcgan firing at
thcm, Shots Lit all three men. Roberlo
fell; Joel and Ramircz fled. Appellant pur-



qr
716 l'la. 371 SOUTIIIIRN REPORTER, 2d SI)RIES

,

;.

{
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sued them, but they escalrcd hy running
into the woods. Each cventually made his
way to a main roarl anrl obtained help.

Hardee County Deputy Sheriff Jeff Mad-
rlox Lcstified to statemcnts that Jocl Guticr-
rez. marle to him on firct contact. Notwith-
stanrling thc fact that Jrrcl had already
teslificrl that appellant shot him, Roberto,
anrl Ramircz, the rlcputv was llcrmitted to
tesLify that Joel hatl rcported to him that
appellant shot them. Aplrcllant timely ob-
jecterl to this testimony on the grounds that
it was hearsay and was merely a prior con-
sistent statemcnt. Appellant also moved
for a mistrial, which was denicd.

Appellant testific<l in his own behalf as

follows: Earlier during the week of the
shooting he and Joel ha<l argued about the
section of the grove he had assigned to Joel.
Roberto became involved, and both Joel and
Roberto pulled their knives. However, the
argument was settled, and the men went
back to work. On Friday of that week as

the three men and appellant were returning
to Wauchula, Joel started another argu-
ment. Following his usual practice of driv-
ing baek roads during daylight when he had

illegal alicns in his crew, appellant was
driving his pickup truck along a dirt, back
road. Ramirez and Joel were in the cab of
the truck with appellant; Roberto rode in
the back. Joel was sitting near the passen-

ger window with Ramirez in the center of
the seat. Joel began the argument, pulling
his knife and holding it in a concealed fash-
ion. Aplrcllant noticcd the knife and com-
mcntcrl on it. Joel then punchetl appellant
in the chest and hit thc steering wheel,
causing the truck to swcrvc. Appellant
stopJrerl the truck. When thc truck
stopperl, Jocl, Robcrto, an<l Ramirez jumlletl
out. Aplrcllant was frightene<l. IIc llulle<l
his .22 sr:nriautomzrtic rifle, which he nor-
mirlly citricrl in his truck, and began firing
whcn Joel came at him with a knife. Joel
thcn flcrl lnrl hitl in a ditch. Ilamirez also
flr.rl. Appr,ll:rnt stoplx.tl shrxrting whcn hrr

rr,;rlizcrl t.lrlrL .lrx,l irrrrl lt:ttttircz wt'rtr Ltxr far
awity [o lrc an imtnorli:rt.c rlitngr,r l-o hint.
Realizing that Roberto was dead, appcllant
draggerl his lxxly into a palmrrtto thickct
before driving homc. Apgrcllant stayed at

his house only a short time before going to
pick up his pay check. Since the company
was not prepared to pay until 5:00 p. m., he

returned home for a few minutes. He then
returned to the office, where he waited
until he wa^s given the check for himself
and his crew. After cashing the check, he

drove to Bowling Green to pay some of his

crew.

Appellant's wife Joyce testified that ap-

pellant initially returned home from work
between 2:30 p. m. and 3:00 p. m., left again

shortly thereafter to get the pay check, and

returncd. He lcft again after 4:00 p. m.

He returned again ahout forty minutes la-

ter. The two of them then drove out to s
place where appellant threw some items
into the weeds.

When first questioned by the police, ap
pellant denied any knowledge of the shoot

ing and claimed that the three men had left
his employ that afternoon. Later, he gave

a second statement admitting the shooting,

which substantially comported with his trial
testimony. Appellant admitted in his

second statement that the items thrown
into the wee<ls were personal items belong'

ing to the three men.

Appellant raises five points on this ap
peal, of which three have merit and will be

discussed.

tl] First, he asserts that it was reversi'
ble error to allow the prosecutor to amend

the indictment during the trial. He ir
right, for only a grand jury has the authori-

ty to alter an indictment. Busse// r', State,

349 So.2rl 1224(Fla.2<l DCA 1977); Pickercn

r'. State, 94 Fla. 268, 113 So, 707 (1921).

t2,3l Secon<l, appellant contends tlrat
the trial court erred in allowing Deputy

Maddox to testify that Joel Gutiernez told

him that appellant had shot Joe[ and hL-.
companions. This tcstimony was-not oaly 

I
hcarsa\', lrrrt was eonsistcnt with Joel'e trirl- |
tcstinurrry. A wil.ncsg's grrior consirteat I
sttte mcnt nlrty not lrc userl to bolntcr bL I

trial tcstirnony. Lamb v. State, 357 So-E

43? (Fla.2rl DCA 1978); Roti v. Slaae, 83{

So.2d 146 (Fla.Zl DCA 19?6). The ratioodc '