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IN THE CIR,CUTT COURT OF TffE ELEVENTHJUDICIALCIR.CUIT AW DI FORMIAMI-DADE COUNTY,FLORDA
CASE NO. OE-326 AP lnwer Tribunal CaseNo. M07l 0544
An appealfrom a Final Judgment the CountyCourtof Miami-badeCounty,Florida. by CarlosMiller, pro se,Appellant. KatherineFernandez Rundle,StateAttorney,aqd IgnacioJ.Yazquez,Jr., AssistantState Attomey for Appellee. BeforePLATZER.,SCOLA andFREEMAN,JJ. PER CURIAM. for below, appeals convictionand sentence Carlos Miller, Appellantand Defendant his ResistingArrest and Obstruction a Public Street. Finding error in both the convictionand of sentence, reverse. we following anencounterbetween himselfandfive City Miller, a photojournalist, arrested was roadway. of Miami policeofficers. Theofficerswereinvestigating accident a heavilytraveled an on themdoingso. Theoflicersinstructed Miller to leavethe area Miller wasattempting photograph to a and an argumentensued. one point, while being moved from the roadway Miller snapped At
photograph closerange, at with the flashengaged, theofficer. Miller wassubsequently of arested and charged with multiplecriminalandcivil infractions. At thetrial, Miller testified his own defense. in Duringcross-examination, Courtallowed the the State,over objection, question to Miller aboutthe contents a blog created him several of by monthsafter the incident. theblog, Miller questioned In policetacticsacross country. In some the postings, officerswerereferred as"Gestapo" "Nazis". Additionally, State permitted to or the was to questionMiller concerning articlehe wrote over a yearafterhis arrestin which he expressed an negativeopinionsaboutthepoliceanddiscussed policebrutalityin Los Angeles. At closing,the State argued: ...(I)in somewayor another we're all students history. Whenthe of Nazisandtheir Gestapo someone's put headto theground,it didn't look like this. It did not. But that'sthewayMr. Miller ashe saidin his own unvarnished opinion feelsaboutthe police. And that's the story that he's writing about the police, and that's the story that you'r€goingto hearaboutthepoliceon carlosmiller.com .... The Stateargues thequestions that werepermissible impeachment showbiasagainst as to police offtcers. Courtshavelong allowedwitness biasto be explored throughcollateralevidence. For example, Tanziv. State,964 2d 106,115(Fla.2007),the in So. State waspermitted impeach to thetestimonyof a witness raisingactscommitted aseparate by in venue."No area moredeserving is of 'wide latitude'thanthedefendant's ability in a criminalcase argue 'credibilityandbiases to the of the witnesses who testified trial.' Williams State,912 2d66,68(Fla.4th DCA 2005) at v. So. (quotingGoodrichv. State, So.2d 663 854 also Carlylev. State,945 ,665 (Fla.3d DCA 2003). See So.2d 540 (Fla. }ilDCA2006) (a defendant the absolute has right to fully cross-examine adverse witnesses discredit to themby showing bias,prejudice, interest); or Graves State,937 2d 1286 v. So. (Fla.4th DCA 2006)(a criminaldefendant considerable has latitudein crossexamination elicit to testimony showing biasof a witness); the Minusv. State,901 2d344(Fla.4th DCA 2005)(for So.
the purposeof discrediting witness,the Sixth Amendment a allowsa defendant wide rangeof a cross-examination a matterof right in regardto his motives, as interest, animus.) or
However, even rightis not withoutlimits. See this Nelsonv. State,704 2d752(Fla.5th So. DCA 1998)(biason partof prosecution witness validpointof inquiryin cross-examination, is but prospect ofbias doesnotopendoorto everyquestion mightpossibly that evidence developsubject; of biasmay be inadmissible it unfairlyprejudices misleads trier of fact). if or the Moreover,we find a materialdistinctionbetween attacking witnessby collateralattackand a doing so to a defendant.Expertwitnesses be replaced fact witnesses can may be discredited and without impugning the defendant. Further,juries cannotpunish witnessesthernselves their for In collateral wrongs, maybeledto do sowhenthecollateral wrongis committed but bythe defendant. act sum,introduction a defendant's of collateral profoundly act increases riskthatthecollateral will the grosslyovershadow to whatever it wasintended prove. bias The standard Fiupatrick ofreviewofa trial court'sevidentiaryrulings abuse is ofdiscretion.. (F1a.2005\. trial court's v. State,900 So.2d495.514-15 The by discretion limited, however, the is rulesofevidence,Johnston.863 at278.andbytheprinciples 90.402. So.Zd ofstaredecisis. Section (2005)provides Florida Statutes evidence admissible exceptasprovidedby law. that all relevant is However,relevant if by evidence inadmissible its probative is outweighed the valueis substantially danger ofunfair prejudice.Thecourtmtrstconduct balancing in orderto applythis discretion. a test Carlos Despitebareattempts link Miller's comments testimonial to bias,theStateplaced to of Miller's abstracted admittedfor the limited purpose comments trial. Miller's comments, on impeachment, testimonyhas ultimatelybecame of evidence his guilt. "[S]uchauseofimpeachment (citing beenheldto be reversible error."Merrill v. State,228 2d 305,307(Fla.3d DCA 1969) So. v. v. v. Adams State,15 905,908(Fla.I 894);Whorely State,33 E49(Fla. 1903); Hernandez So. So. state,22 So.2d 781,786(Fla. 1945)).
We seeno reasonable basisthattheinflammatory issues NazismandGestapo, or of theactions trial, ofl,os Angeles should havebeen PoliceOffrcers, injected into this,a misdemeanor involving the City of Miami Police. We rejectthe State's had counsel a contention that Defense
reasonable opportunity rehabilitate witness.To do so would haverequired introducing and to the explaining article,screening referenced the videosandothermaterialtakenof theLosAngeles the melee, includingthe contriteresponses thesenior AngelesPoliceoffrcials. It would,in and of Los essence, turnedMiller's misdemeanor into anexamination a violent,cross-continental have trial of we incident.In thatthis evidence moreprejudicial thanprobative is underthese circumstances, find the trial courtabused discretion reverse conviction. and the its Miller has also raisedthe issueof sentencing.In that there was no contemporaneous write to objectionmadeat trial, this issuewasnot preserved appellate for review.We do however address Court'scomments sentencing. the at The Staterecommended theCourtsentence courtcosts,an that Defendant anadjudication, to probation. Prior management hoursandttree-months anger course, community service reporting 50 to imposingsentence, Court stated: the (to theDefendant)...knowthatthis isn't evenimportantenough I for you to standup while you're being sentenced a criminal offense on andfrankly ... your attitude my opinionis like you'regladthatthis in all happened. You've had a prettycavalierattitudethese two da1a,...theway last you've been chitchattingwith the peoplethat are here with you, talking on the phoneduringtrial. I can't imaginewhy youthoughtthatthis situation wasworth getting it arrested for. I can't imagine for thelife ofme. I don't know if you think you're some kind ofhero or something that,but ifyou want like to seea hero go visit Arlington. All ri.ght. peoplethat arebackherearethosepeople I don't think anyof these that aregrvingyou thethumbsup on yourblog. If I wereto sentence you to jail noneof thosepeoplewould volunteer go in thereand to you. Theymightsaytheywould,but Iguarantee servethe time with you they wouldn't. I'm shocked your lack of remorse. at
The jury having found you guilty, I'm adjudicatingyou guilty. I'm imposing a $250 fine, there's Court costsandsurcharges. placing I'm you on one (year) reporting probation, a special condition anger course,a specialcondition 100 hours of community serviceat arate of ten hours minimum per month and all conditionsto be completed with ten months of todav.
The court imposed additional an fine andadditional courtcostson thecivil infraction. It is constitutionally for basedupon a impermissible a trial court to imposea sentence defendant's assertion innocence of during,andaftertli'al. Ritterv. State, So.2d 413(Fla. E85 before, stating 200$; Holtonv. State,573 2d284,292(Fla.1990).TheState this So. contends did not occur, on ". . . thecourtreviewed totaltrial evidence entered sentence a merepassing remark the and its with remorsein the contextof a commenton the Appellant'smisbehavior demeanor." On the and we assumption we havereviewed same that transcript, rejecttheState's interpretation ofthe record. the Fire Ins.Co.v.Beltmann SeeU.S. NorthAm.Co.,1nc.,703 Supp. F. 6El, 685,n.15(N.D.ru., 1988). (Fla.2005)andShellitov. TheState looksto Meltonv.State,949 2d994,1015 State,70l So. to reference a So.2d 837,842(Fla. 1997), support proposition a passing de minimrs to the that or guiltyparty'slackofremorsewillnotconstituteerror. WeagreewlthMeltonandShellito,butfind in theyhaveno application by the here.As evidenced thesentencing colloquy, trial court'sconcern, largepart,wasfor the 'real' heroes Arlington,for Miller's supporters, for Miller's 'shocking' at and but, lack of remorse. The trial court's comments were not so muchpassing references, instead, groundsfor sentencing. sentenced beforea REVER.SED be with directions that Defendant tried and,if necessary, differentjudge. (PLATZER, SCOLA andFREEMAN,JJ.,CONCUR)
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