
    Thomas MAUL, Appellant, v. STATE of Florida, Appellee.
    No. 87-1462.
    District Court of Appeal of Florida, Fourth District.
    Aug. 10, 1988.
    Rehearing En Banc Denied Aug. 26, 1988.
    
      Stephen H. Broudy of Law Offices of Stephen H. Broudy, Fort Lauderdale, for appellant.
    Robert A. Butterworth, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED.

GUNTHER, J., concurs.

GLICKSTEIN, J., concurs specially with opinion.

ANSTEAD, J., dissents with opinion.

GLICKSTEIN, Judge,

concurring specially.

The only point, of the three raised by appellant, which is discussed herein or in the dissent is the trial court’s action in excluding the entire testimony of a defense witness who, during a proffer of his testimony, invoked the Fifth Amendment privilege as to critical questions involving the hit and run accident with which appellant was charged and convicted. In my view the trial judge did not abuse his discretion in excluding the testimony of Mr. Smothers, the witness.

Defense counsel, Mr. Broudy, had the witness sworn outside of the presence of the jury and the following questioning took place:

Q [By Mr. Broudy] Mr. Smothers, are you the owner of a 1975 Corvette vehicle with license number LXE-143?
A Yes.
Q Was that car involved in an accident on January 13th, 1986?
A Yes.
Q At that time was that car previously stored at the home of Tom Maul?
A Yes, sir.
Q And why was it stored there?
A Because he’s got a carport and the T-tops leak on it, so I usually park it under his garage there.
Q Now, on that date did Mr. Maul drive that vehicle?
A No, sir.
THE COURT: Any other questions?
MR. BROUDY: That was going to be solely my questioning.
Your, Honor, first of all two points. Those were going to be my questions as I call him for a defense witness on the stand. I wanted the Court to rule whether those questions will open the door if she asked on cross-examination other questions, such as—
THE COURT: We’re going to find out. Ms. Wells.
CROSS EXAMINATION
Q [By Ms. Wells] On January 13th, 1986, did you see Thomas Maul drive your car?
A No, ma’am.
Q On January 13th, 1986, were you driving your own car, a Chevrolet Corvette?
There was then considerable argument upon the issue.

The assistant state attorney then asked the witness:

Q [By Ms. Wells] Why do you know that Mr. Maul was not involved in an accident on January 13, 1986?
A ’Cause I know he wasn’t.
Q Why?
A I know he wasn’t.
Q How do you know that Mr. Maul was not involved in an accident on January 13th, 1986?
A I stand on the Fifth.

There was more argument; then the following occurred:

THE COURT: She’s asking the question: Was he driving the car?
The answer is no.
How do you know he wasn’t driving the car?
I’m not gonna tell you.
That’s the way I understand the testimony.
You can’t have it both ways.
MR. ANGERT [Mr. Smother’s attorney]: Excuse me, your Honor. Your Honor, that specific question he will be able to give an answer to without taking the Fifth.
THE COURT: Which question?
MR. ANGERT: How does he know.
THE COURT: If he wants to answer the question — Repeat the question again.
Q [By Ms. Wells] How do you know that Mr. Maul was not involved in an accident on January 13, 1986?
A ’Cause the car wasn’t at his house. It wasn’t in his possession.
Q Where was the car?
A I stand on the Fifth.
Q Whose possession was the car in on January 13th, 1986?
A I stand on the Fifth.
Q Who was driving the car on January 13th, 1986?
MS. WELLS: Same argument, Judge.

After further discussion — some on the record and some off — the trial judge said:

THE COURT: The Court herein finds that you are calling the witness knowing that he’s not subject to full, fair cross examination, which excludes the witness as a witness unless he subjects himself to full, fair cross examination on the subject matter, but if he testifies on direct you cannot ask the direct questions.
Your objections to this ruling are noted of record and shall be preserved on record in the event that there is an appeal.

This court in Insurance Company of State of Pennsylvania v. Estate of Guzma, 421 So.2d 597 (Fla. 4th DCA 1982), noted that it is error for a trial court to permit a witness, who is expected to invoke the Fifth Amendment, to be called to the stand because the inference that might arise from the refusal to testify would add critical weight to a party’s case in a form not subject to cross-examination. In the present case, Mr. Smother’s invocation of the privilege would have raised the inference that he, rather than appellant, was the driver of the vehicle involved in the hit and run accident, such inference being in a form not subject to cross examination.

Apfel v. State, 429 So.2d 85 (Fla. 5th DCA 1983), speaks for itself. It was an affirmance, approving the trial court’s action in disallowing a defendant to ask in front of the jury certain questions of a witness who had previously and validly asserted his privilege against self-incrimination.

United States v. Kaplan, 832 F.2d 676 (1st Cir.1987), upon which the dissent relies, involved a government witness whom the defense wished to impeach by undertaking cross-examination which would have resulted in the witness’ invoking the Fifth. The appellate court said the defendant should have had that opportunity. This case is dissimilar in that the defense herein wanted the witness to testify as to the incident without the state’s having the opportunity to cross-examine the witness effectively to determine the basis for the witness’ testimony on direct examination. The trial judge felt the defense was trying to “have it both ways.” I fail to see from the dissent how the trial judge abused his discretion in so concluding.

As to the dissent’s reference to the similarity in appearance between the defendant and Mr. Smothers, it merits mention that Officer Marcucci testified as follows:

Q Could you tell us what you feel are the differences of Mr. Smothers and Mr. Maul?
A Facial characteristics.
Q And when you say facial characteristics, what do you mean?
A Well, the identity, as the defense attorney pointed out, is very similar. But I’ve seen both of these men over a period of years and I can distinguish between the two. They are not like Siamese twins.
Q What about the hair?
A That hair on Mr. Smothers is more receded than that of Mr. Maul. The hair of Mr. Smothers is longer than that of Mr. Maul. Mr. Smothers’ has wavier hair, whereas Mr. Maul has curly hair, closely-knit curly hair.
Q Any other distinctions?
A Other than the ruddy complexion of Mr. Maul—

ANSTEAD, Judge,

dissenting.

I believe the trial court erred in refusing to allow an important witness to testify for the appellant-defendant just because the witness attempted to claim a Fifth Amendment privilege to some of the questions put to him on cross-examination.

This case involved a hit-and-run accident. The guilty party was driving a white Corvette. The defendant is not the car owner, but he and the owner look very much alike. The car owner, Anthony Smothers, was in the habit of parking the Corvette under the carport at defendant’s house to keep it out of the rain because the Corvette’s roof leaked. The appellant was charged after witnesses identified him as the driver at the time of the hit-and-run. Defendant attempted to call Mr. Smothers as a defense witness. There was a proffer of his testimony outside the jury’s presence. Smothers answered some questions and took the Fifth on others.

During the proffer, Smothers testified on direct that he was the owner of the car, that he usually parked the car at defendant’s house because the T-top leaks, and that defendant did not drive the car on the day of the accident. On cross-examination, the prosecutor asked how Smothers knew defendant was not involved in an accident on that day and Smothers answered that defendant was not in possession of the car. Smothers took the Fifth when the prosecutor asked him if he was driving the car that day, in whose possession was the car, and who was driving the car that day. The trial court would not permit Smothers to testify in front of the jury at all.

The general rule is stated in United States v. Johnson, 488 F.2d 1206, 1211 (1st Cir.1973):

If it appears that a witness intends to claim the privilege as to essentially all questions, the court may, in its discretion, refuse to allow him to take the stand. Neither side has the right to benefit from any inferences the jury may draw simply from the witness’ assertion of the privilege either alone of in conjunction with questions that have been put to him.

This court cited Johnson with approval in Faver v. State, 393 So.2d 49 (Fla. 4th DCA 1981). In both Faver and Johnson, the witnesses were prevented from testifying before the jury. Both cases are distinguishable from the instant case in that the witness in this case would have answered some but not all questions. The witness in Faver took the Fifth after giving only his name and address. The witness in Johnson was an ex-codefendant who still faced possible conspiracy charges arising out of the same incident. He testified during the proffer that, if called to the stand, he intended to invoke the Fifth after giving only his name and address. 488 F.2d at 1208. In affirming the trial court’s refusal to allow the witness to testify, the First Circuit noted that “[ojnly after [the witness] had testified that he would claim the privilege comprehensively did the court rule to exclude him.” 488 F.2d at 1211 (emphasis added). The Johnson court also observes in a footnote that “No further questions were asked or intimated attempting to show that there were particular matters which could be answered without danger of incrimination.” Id. n. 1. Arguably, the court was implying that if there were other questions which could have been answered by the witness without incriminating himself, his testimony may not have been excluded. In the case at bar the witness did not claim the privilege “comprehensively.” He testified to facts highly relevant to the case — that he was the car’s owner; that he usually parked the car at defendant’s house; that defendant did not drive the car or even have possession the day of the accident. Thus his testimony consisted of much more than merely giving his name and address, as in the Faver and Johnson cases.

Both parties cite Apfel v. State, 429 So.2d 85 (Fla. 5th DCA 1983), but neither points out that the trial court there allowed the witness to testify but limited the questioning to those questions previously answered by the witness during the proffer. The witness was an ex-codefendant called by the defendant. During the proffer, the witness invoked the Fifth as to certain questions. The trial court allowed the witness to testify in front of the jury, but would not permit defense counsel to ask those questions to which the witness had previously taken the Fifth during the proffer. The Fifth District affirmed, finding the trial court acted correctly in allowing defendant “to call the witness to testify in front of the jury as to questions eliciting facts not incriminating.” Id. at 87. Apfel arguably supports defendant’s position in the case at bar, for it approves allowing the witness to testify in front of the jury, at least as to those facts which are not incriminating.

Limiting the questioning of a witness has been held to be error where it impacts on impeachment value. The First Circuit distinguishes Johnson in United States v. Kaplan, 832 F.2d 676 (1st Cir.1987), cert. denied, — U.S. —, 108 S.Ct. 1080, 99 L.Ed.2d 239 (1988). In that case, the defendant, a lawyer, was accused of participating in a scheme to defraud insurance companies by agreeing with several doctors to send in false medical bills pertaining to defendant’s clients injured in car accidents. One of defendant’s clients was called as a government witness to testify that he told defendant that a doctor’s bill was false. During a proffer of his testimony, defendant sought to cross-examine the witness about his use of cocaine in an attempt to show bias. Defendant sought to prove that if the jury knew the government had given the witness immunity regarding his cocaine use in return for his testimony, that it could infer the witness had reason to lie. The witness took the Fifth during the proffer when confronted about his cocaine use. The trial court refused to permit any questioning in front of the jury that would cause the witness to invoke the Fifth. The appellate court found this was error and distinguished Johnson. There,

the witness’ assertion of the privilege, intended as permitting an inference of guilt or innocence, could have adispropor-tionate, probative impact on the mind of the average juror.
A different case is presented where, as here, the defense seeks to cross-examine a government witness within the scope of his direct and then the witness asserts the privilege. We note, first, that the impact on the jury’s deliberations from asserting the privilege has to be less here than in Johnson from the fact that Brown [the witness] did not claim the privilege comprehensively. Instead, Brown answered most questions put to him by the defense and would have refused to answer at trial only those bearing on the alleged cocaine abuse. And whatever danger exists that the jury may give too much weight to this line of questioning is small in comparison to its impeachment value. See United States v. Seifert, 648 F.2d 557 (9th Cir.1980).

Kaplan, 832 F.2d at 684. Kaplan is distinguishable from the instant case in that the testimony sought to be elicited in this case does not appear to be for impeachment purposes, but rather was intended to ferret out the factual basis of the witness’ testimony on direct (and possibly to incriminate and implicate the witness). Also, the trial court impermissibly limited the defendant’s cross-examination of a government witness in Kaplan, as opposed to the total exclusion of a defense witness in the instant case. Kaplan is analogous to the instant case, however, in that the witness asserted the privilege during cross-examination, not on direct, and the witness did not claim the privilege comprehensively. Thus Kaplan lends some support to defendant’s position that the trial court erred in excluding the witness’ testimony.

In United States v. Seifert, cited in Kaplan, the trial court was held to have erred in preventing the defense from asking a question on cross-examination in the jury’s presence to which the witness had taken the Fifth during a proffer. As in Kaplan, the question involved impeachment. The appellate court held the error was not reversible, however, as the defense had ample opportunity to cross-examine and impeach the witness, and impeaching him further by having him take the Fifth in the jury’s presence would have been merely cumulative. 648 F.2d at 560-61.

Clearly the case law prevents a party, whether the state or defendant, from calling a witness “for the purpose of invoking the privilege in front of the jury" because of the impermissible inferences the jury may make. Apfel, 429 So.2d at 86. Thus when a witness invokes the privilege “comprehensively,” he cannot be called because that obviously would be “for the purpose” of invoking the privilege in front of the jury. However, the defendant in the case at bar attempted to call the witness, not for the purpose of having him invoke the privilege in the jury’s presence, but rather for the purpose of getting to the jury his firsthand knowledge of the fact that defendant was not in possession of the car that day.  