TENTH JUDICIAL CIRCUIT COURT
FOR HARDEE, HIGHLANDS AND POLK COUNTY, FLORIDA

County Case No.: MM00-02191A-XX

Appeal No.: CC-27

GAIL WALTON,

Appellant,

vs.

STATE OF FLORIDA,

Appellee,

___________________________________/

OPINION OF THE COURT

This is an appeal from the county court of Polk County, Judge James A. Yancey presiding. The Appellant in this case was charged with petit theft. A jury trial on June 9, 2000, resulted in a guilty verdict. Appellant, Gail Walton, argues that the trial court erred in refusing to permit Appellant to call a witness on her behalf. The parties presented oral argument on May 22, 2001. This court has jurisdiction. Fla. R. App. P. 9.030. Reversed and remanded.

I.

At trial the state called the security guard who allegedly witnessed the Appellant Ataking@ certain items off the shelf in Wal-Mart and subsequently detained her. During the state=s direct examination of the witness the state inquired as to what transpired once the Appellant was detained. The following exchange took place:

THE WITNESS: Well, I called the police, and then I told her I needed the merchandise that was in her pockets that she hasn=t paid for, she said she didn=t have any. I said, well, they=re going to search you and I want my merchandise, and so she gave up the jewelry that was in one of her front pockets, then I said, and I need the stuff that you got out of crafts also that you have in your other front pocket, so she shook [sic] that out and gave that to me.

THE STATE: Q: What did she say when she gave it to you?

THE WITNESS: A: First time she=d ever done it, she was sorry.

(T38). Defense counsel did not object to the statement attributed to the Appellant. Subsequently, the defense proceeded to cross-examine the defendant and the witness was released upon consent of both parties. The defense never objected to nor raised the issue of the Appellant=s statement. A loss prevention report was prepared by the witness but not introduced into evidence.

During the defense case, trial counsel sought to call the security guard as a defense witness in order to put before the jury the fact that the witness made no record of the statements he had testified were made by the Appellant at the time of her detention . The state objected and the request to call the witness was denied. Apparently, the court was of the view that the issue of the Appellant=s alleged statement should have been addressed during cross- examination. Additionally, the court noted that the statement was not objected to when elicited and therefore was untimely. The court accepted a stipulated proffer that the witness would testify to the fact that he did not put the statement attributed to the Appellant in the loss prevention report. The evidence was excluded and the defense stated its Acontinuing objection@ on the record.

III.

At issue is whether the trial court erred in refusing to permit the Appellant to call a witness who had already been called by the state and subject to cross-examination. Appellant argues that it was reversible error for the trial court to exclude the evidence because the court prevented the Appellant from presenting substantive material evidence on her behalf in violation of her right to due process. Appellant contends that the purpose for calling the witness was to elicit testimony that the witness made no record in his loss prevention report of Appellant=s incriminatory statements at the time of her arrest. The Appellant argues that failure to make an entry in regularly recorded business records is an exception to the definition of hearsay under Florida Statute 90.803(7). As such, the statement was admissible as substantive evidence and was improperly excluded for no legal basis other than the fact that the court believed it could have been addressed on cross-examination. Appellee argues that the issue of Appellant=s statement should have been addressed during cross examination and that Appellant=s sole purpose in calling the witness was to impeach in court testimony with a prior inconsistent statement which is not admissible as substantive evidence. McNeil v. State, 433 So.2d 1294, 1295 (Fla. 1st DCA 1983), review denied, 441 So.2d 633.

IV.

A trial judge has broad discretion to admit or exclude evidence. Bradley v. State, 2001 WL 197024 (Fla. 2001). To overturn an evidentiary ruling, Appellant must demonstrate an abuse of discretion. Id. The improper exclusion of evidence is reviewed under a harmless error analysis. DiGuilio v. State, 491 So.2d 1129 (Fla. 1986).

In Perkins v. State, 704 So.2d 619 (4th DCA 1997), the District Court reversed defendant=s conviction on a finding that the trial court abused its discretion in not permitting defendant to reopen cross and recall state=s key identification witness. In Perkins, the defense had an opportunity to extensively cross-examine the state=s witness. However, during its cross-examination, the defense failed to ask the witness regarding a prior statement she had made to a third party. Specifically, the witness allegedly told her aunt that she could not tell the defendant apart from his twin brother. The defense attempted to recall the witness and the trial court sustained the state=s objection. The Fourth District found the exclusion to be an abuse of discretion. Similarly, in Vasquez v. State, 700 So.2d 5 (Fla. 4th DCA 1997) the Fourth District found an abuse of discretion where the trial court did not allow the defense to reopen its cross-examination of a state witness Awhere the purpose of such cross-examination is to weaken testimony given by the witness on direct examination by the state.@ Id. at 8. (Emphasis added) In Louisy v. State, 667 So.2d 972, 973 (Fla. 4th DCA 1996), the Fourth District reached the same conclusion. In Loiusy, the defense sought to reopen cross-examination of the state=s witness after the state had rested but prior the jury charge and closing argument. The court stated that although it is within the discretion of the trial court, a denial to allow a case to be reopened will be reversed where the request is timely made and the jury will be deprived of evidence which might have had a significant impact upon the issues to be resolved. (Emphasis added).

The difference between this case and the above cited cases is that in the latter the appellants requested to reopen cross-examination whereas here the appellant requested to call a witness on her behalf. However, it is difficult for this court to find any meaningful difference between this case and the cases cited above. The court agrees with Appellant that the absence of the statement in the loss prevention report is substantive material evidence which would tend to cast doubt on whether the Appellant had made the statement attributed to her. Fla. Stat. '90.803(7), (1999). ATrial judges should be extremely cautious when denying defendants the opportunity to present testimony or evidence on their behalf . . .@. Guzman v. State, 644 So.2d 996, 1000 (Fla. 1994). Indeed, it would have been error for the trial court to preclude Appellant from reopening cross examination on such a substantive material point. In the present case the court finds the fact that the defense sought to elicit the testimony through substantive evidence is the functional equivalent of an attempt to impeach the witness on cross examination. Accordingly, this court is of the opinion that the reasoning of Perkins, Vasquez, and Loiusy should be extended to the present case. Morever, in light of the evidence in this case it cannot be said that the error was harmless. AWhere evidence tends in any way, even indirectly, to establish a reasonable doubt of a defendant=s guilt, it is error to deny its admission.@ Rivera v. State, 561 So.2d 536, 539 (Fla. 1990). In the present case, the witness testified that he had observed the Appellant pay for certain items of merchandise prior to her detention but that he was not sure which items she had paid for. Upon her detention and arrest the Appellant had a receipt in her purse for the same or very similar items allegedly stolen along with other items of personal jewelry. Thus, evidence such as that sought to be introduced by the Appellant, which would cast doubt on whether the Appellant had made an inculpatory statement, would tend to establish a reasonable doubt upon the defendant=s guilt. AIf there is any possibility of a tendency of evidence to create a reasonable doubt, the rules of evidence are usually construed to allow for its admissibility.@ Vannier v. State, 714 So.2d 470, 472 (Fla. 4th DCA 1998).

Accordingly, it is ORDERED that the judgment and sentence are REVERSED and REMANDED for proceedings consistent with this opinion..

ORDERED June 2001.

Charles B. Curry, Chief Judge