5D01-1924 State v. Dreggors

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D01-1924

Case Date: 03/11/2002

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2002

STATE OF FLORIDA, Petitioner, v. KERRY I. DREGGORS, Respondent. _________________________________/ Opinion filed March 15, 2002 Petition for Certiorari Review of Order from the Circuit Court for Orange County, Richard F. Conrad, Judge. Robert A. Butterworth, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Petitioner. Thomas F. Egan of Thomas F. Egan, P.A., Orlando, for Respondent. PLEUS, J. The State seeks certiorari review of an interlocutory order entered in the grand theft prosecution of Kerry Dreggors. Dreggors is charged with grand theft based on her alleged actions in a workers'compensation claim. Barney Dreggors, Kerry' s husband, injured his head in an accident at work and was awarded disability payments and attendant care benefits. The State alleges that the attendant care reimbursement was based on false representations by Kerry Dreggors who testified that a tenant on her property, Louise Rothstein, provided assistance to Barney Dreggors with his daily activities in return for CASE NO. 5D01-1924

abatement of rental payments. Ms. Rothstein later disputed the testimony that she had provided assistance to Dreggors'husband. In this criminal prosecution for theft, Dreggors filed a motion to exclude reference to the testimony and judgments in the workers'compensation proceedings. The trial court granted Dreggors'motion to exclude, and ruled that the State could not introduce the content of the workers' compensation judgments or any testimony provided in those proceedings. The court qualified its ruling by allowing the State to introduce the prior testimony of Dreggors for purposes of impeachment. The State asserts that the trial court erred in granting the blanket exclusion of all prior testimony from its case-in-chief. It argues Mrs. Dreggors' testimony in the workers' compensation proceedings could be relevant to the issue of whether a grand theft was committed by fraud. Her prior testimony is not necessarily hearsay because it would not be offered to prove the truth of the matters asserted by Kerry Dreggors. To the contrary, the State seeks to prove the falsity of her testimony. Even if the prior testimony is considered hearsay, it could be admitted under section 90.803(18)(a), Florida Statutes (2001), as an admission of a party opponent.1 Such prior testimony may provide evidence from which guilt may be inferred when such testimony is analyzed in the context of other admissible evidence such as Ms. Rothstein' s conflicting testimony. We grant certiorari because the state prosecution would be significantly impaired if the prior testimony is excluded. See State v. Pettis, 520 So. 2d 250 (Fla. 1988). More importantly, the State has no adequate remedy on appeal if the improperly excluded evidence results in an acquittal.

An admission of a party opponent does not have to be a statement that is against his or her own interests. See State v. Elkin, 595 So. 2d 119 (Fla. 3d DCA 1992). - 2 -

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Assuming that Ms. Rothstein is available as the State' s primary witness, she might be able to testify as to relevant statements made to her by Dreggors. Ms. Rothstein apparently has stated under oath that both Barney and Kerry Dreggors tried on several occasions to convince her that she did provide attendant care and tried to get her to endorse a check issued by the insurance carrier. At trial, the trial judge may accept Dreggors'argument that in fairness to the defense, the entire record of the workers'compensation proceedings would have to be placed into evidence. This, in turn, may lead the court to conclude that in the interests of avoiding confusion of the issues, or the needless presentation of irrelevant or cumulative evidence, the State should rely on other evidence to prove the crime. See

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