BEARD V. STATE
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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF. IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JULY TERM A.D., 2004 JOHNNY C. BEARD, ** Appellant, vs. ** ** THE STATE OF FLORIDA, CASE NO. 3D02-2202 ** Appellee. ** LOWER TRIBUNAL NO. 01-25042 ** Opinion filed October 6, 2004. An Appeal from the Circuit Court for Miami-Dade County, Cecilia Altonaga, Judge. Bennett H. Brummer, Public Defender Assistant Public Defender, for appellant. and Valerie Charles J. Crist, Jr., Attorney General and Mandel, Assistant Attorney General, for appellee. Jonas, Roberta G. Before SCHWARTZ, C.J., and GREEN, J., and BARKDULL, THOMAS, H., JR., Senior Judge. ON MOTION FOR REHEARING PER CURIAM. We grant the motion for rehearing, withdraw our prior opinion filed on March 31, 2004, and substitute the following in its stead. In August 2001, Officer Denise Bernhard detained Johnny Beard because he matched a description given in a citizen s complaint. Officer Bernhard asked Beard his name and where he was going. Beard gave several different names and claimed he had no identification. Beard s agitated manner, clenched fists, and uncooperative behavior prompted Officer Bernhard, who was working alone, to call for back-up. Officer Franklin Adams soon arrived on the scene. Beard, still agitated and refusing to sit down, continued to give false names to the police. Eventually, Beard gave his true name, which appeared in a police database showing that a civil writ of attachment had been filed against him. Given the outstanding writ of attachment and Beard s similarity to the complainant s description, Officer Bernhard took out her handcuffs. didn t want to go. He then lunged at Officer Bernhard, causing her to move backward. who was struggling Beard flailed his arms and said he and Both officers tried to handcuff Beard, kicking. Finally, Officer Bernhard managed to handcuff Beard s left arm. She tried to clamp the other end of the handcuff to a chain-link fence in back of 2 Beard, but was unsuccessful. emergency back-up. Beard The officer called for additional then fell forward, causing both officers Bernhard and Adams to fall to the ground with him. Officer Bernhard required stitches to her knee, and Officer Adams incurred a sprained wrist, and a rotator cuff injury. Beard continued to struggle until he was subdued by several additional officers. Beard resisting was charged arrest with by information violence towards with one Officer count D. of Bernhard and/or Officer F. Adams and separate counts of battery against each officer. Beard s counsel deposed Officer neither party called him to testify at trial. Adams, but Officer Bernhard and two other police officers testified during the course of the trial. Beard conceded that he had resisted arrest, but denied that he had resisted with violence. During closing argument, Beard s counsel argued that the state had not met its burden of proof with regard to the battery of Officer Adams because the officer had not testified.1 The State objected, Haliburton v. State, 561 So. 2d 248 (Fla. 1990). citing The judge sustained the objection and instructed the jury to disregard defense counsel s remark regarding the officer s absence. 1 Beard Defense counsel stated, in closing: [O]ne of the counts that they want you to find Mr. Beard guilty of is battery on Officer Adams. That he intentionally touched and hit Officer Adams. How can you find that they proved that beyond a reasonable doubt when Officer Adams wasn t even here. 3 was acquitted of both battery charges resisting arrest with violence. but found guilty of The sole issue on appeal is whether the trial court abused its discretion in disallowing defense counsel s comment regarding Officer Adams s absence. Finding that the trial court did not abuse its discretion, we affirm. Defense counsel s argument regarding Officer Adams s absence, was directed solely to the battery charge involving Officer Adams. Beard was acquitted of this charge. Thus, even if the trial court had abused its discretion in disallowing defense counsel s comments, this error is irrelevant to the conviction and sentence appealed from here, and therefore moot. Moreover, Beard was charged disjunctively with resisting arrest by Officer D. Bernhard and/or Officer F. Adams[.] testimony of Officer Bernhard produced competent The substantial evidence, the sufficiency of which has not been challenged, upon which a jury could believe that offense. Accordingly, we affirm. 4 Beard was guilty of this
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