author: COBB, Judge.

text:
    James Lewis MARTIN, Jr. v. STATE of Alabama.
    CR-98-1814.
    Court of Criminal Appeals of Alabama.
    Nov. 30, 2001.
    Rehearing Denied Jan. 25, 2002.
    Certiorari Denied June 14, 2002 Alabama Supreme Court 1010893.

      Christopher M. Johnson, Atlanta, Georgia; and Kenneth J. Rose, Durham, North Carolina, for appellant.
    Bill Pryor, atty. gen.; and J. Clayton Crenshaw and George A. Martin, Jr., asst, attys. gen., for appellee.
   COBB, Judge.

On February 27, 1986, James Lewis Martin, Jr., was convicted in Montgomery County of murder during a robbery, in violation of § 13A-5-40(a)(2), Ala.Code 1975. The prosecution presented evidence indicating that Martin and his codefendant, Edward Monteith, shot and killed Allen Powell and stole his wallet while Powell was test driving a vehicle with Kathy Ellison. The jury recommended that Martin receive the death penalty, and the circuit court sentenced Martin to death. This Court affirmed Martin’s conviction and sentence, Martin v. State, 548 So.2d 488 (Ala.Crim.App.1988), affirmed, 548 So.2d 496 (Ala.1989). The United States Supreme Court denied certiorari review. Martin v. Alabama, 493 U.S. 970, 110 S.Ct. 419, 107 L.Ed.2d 383 (1989).

Martin filed a petition pursuant to Rule 32, Ala. R.App. P., on September 28, 1990. Martin thereafter filed four amended petitions and conducted extensive discovery. On September 8-10, 1998, the Montgomery Circuit Court held an evidentiary hearing on the postconviction claims, except for the ineffective-assistance-of-counsel claims, which Martin had withdrawn. On May 24, 1999, the circuit court entered an order denying Martin relief. The trial court rejected each of the claims Martin raised in his postconviction petitions. This appeal follows.

Martin contends that the trial court erred to reversal when it denied him relief on his Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), claims. Martin argues to this Court, as he did in the court below, that, while conducting discovery during the postconviction proceedings, he found that the prosecution had withheld exculpatory evidence he was entitled to receive and that, therefore, he is entitled to postconviction relief and to a new trial. Martin argues that the prosecution withheld several key pieces of evidence. First, he argues that the prosecution withheld from him the fact that witness John Sims was hypnotized when he gave a statement describing the vehicle he saw and its occupants. Sims was the only eyewitness who identified Martin as one of the men he saw driving in the area at the time of the shooting. Second, Martin contends that the prosecution withheld information that Kathy Ellison had tentatively identified someone other than Martin in a lineup, and that she assisted the police in creating a composite drawing of the killer. Third, Martin argues that the prosecution failed to provide him with fingerprint evidence. He contends that he was not informed that a fingerprint on a receipt with information from the victim’s account and generated by an automatic teller machine (ATM) recovered near the victim’s wallet the day after the shooting did not match either Martin’s or his codefendant’s prints. Martin argues also that prints taken from the scope that could fit on the murder weapon, a rifle that was stolen approximately one month before the murder, did not match Martin’s or his codefend-ant’s. Fourth, Martin argues that he was not provided with a “highly suggestive photo array” shown to witness Stanley Wright. The array included photographs of Martin’s vehicle and others, and Wright at trial identified the photograph of Martin’s car as the one he had seen on the day of the murder. Fifth, Martin claims that the prosecution suppressed evidence showing that his former cell mate, Robert Elliot, who testified at trial that Martin had confessed to him that he had acci-dently shot and killed Allen Powell, had been promised benefits in exchange for his testimony against Martin. Finally, Martin contends that the prosecution failed to timely disclose to him a composite created by Kathy Ellison, which, Martin says, bears little resemblance to him.

Martin presented these claims to the circuit court at the postconviction proceedings. In its order denying relief, the circuit court found that the various items of evidence had not been suppressed, or that if any of them were suppressed, the items were not material and, therefore, any failure to disclose them to Martin did not necessitate postconviction relief.

In Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the United States Supreme Court held that suppression of evidence favorable to the accused upon request violates due process when the undisclosed evidence is material either to guilt or to sentencing. Evidence is material if there is a reasonable probability that, if it had been disclosed to the defense, the result of the proceeding would have been different. United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). The United States Supreme Court has explained that a “reasonable probability” of a different result arises when the suppression “undermines the confidence in the outcome of the trial.” Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). A reviewing court must evaluate all of the withheld evidence together when determining whether it is material. Id. The prosecution is required to disclose impeachment evidence, in addition to evidence that is exculpatory. Bagley, 473 U.S. at 676, 105 S.Ct. 3375.

The State argues to this Court that the circuit court did not err in denying the Brady claim, because, it says, the production of the evidence would not have affected the outcome of either phase of Martin’s trial. Having reviewed the entire record in light of the relevant legal principles regarding the alleged suppression of Brady material, we must disagree with the State. Accordingly we reverse the circuit court’s denial of the petition for postcon-viction relief.

A. Evidence at Trial

Determination of the significance of allegedly withheld evidence requires an understanding of the evidence that was presented at trial. The State’s case was entirely circumstantial. Although Kathy Ellison was an eyewitness to the murder, she was unable to identify Martin as the perpetrator. John Sims, who lived near the site of the murder, testified that he saw two men drive past his house before he heard shots fired. Although he was unable in any of his pretrial statements to identify Martin as the driver of the car, he identified Martin at trial as the driver. He acknowledged that, before trial, he had seen photographs of Martin on television and had heard Martin identified as the suspect. Stanley Wright identified at trial a photograph of Martin’s car as the one he had seen near the site of the murder. The prosecution elicited testimony that Martin had been seen in possession of a scope that had been stolen along with a rifle approximately one month before the murder. Ballistics evidence revealed that the bullet that killed the victim had been fired from the stolen rifle. Martin’s fingerprints were not found on the rifle, and no one testified that Martin had ever been seen with the rifle itself. Robert Elliot, an inmate who shared a cell with Martin for approximately one month before trial, testified that Martin confessed to him his involvement in the crime. Elliot admitted that he hoped his testimony would result in favorable treatment from prison officials, but denied having received any promise of consideration in exchange for his testimony.

Each piece of allegedly withheld evidence is examined below, in light of the evidence actually presented at trial.

B. Witness John Sims’s Statement Under Hypnosis

Martin contends that the State violated Brady because it failed to disclose to him a statement of witness John Sims that was given while Sims was hypnotized. Sims was the only witness at trial who identified Martin as one of the men he had seen near the site of the murder. He had been unable to identify Martin in any of his pretrial statements, but he did identify Martin at trial, much to Martin’s surprise. Martin argues, therefore, that evidence indicating that Sims had given a statement while he was hypnotized would have rendered his in-court identification of Martin inadmissible or, at a minimum, would have impeached the credibility of Sims’s in-court identification. The circuit court found the undisclosed evidence not material, because, it reasoned, the hypnosis did nothing to improve Sims’s recall or his ability to identify Martin. Rather, the circuit court found that Sims was unable to identify Martin until shortly before trial, after he had seen Martin on television the second time, when Martin was depicted with short hair. Moreover, the trial court observed, the undisclosed statement did not differ significantly from Sims’s other statements, which Martin did receive before and during trial. We disagree with the circuit court’s analysis and its conclusions.

The State acknowledges that “the primary importance of Sims’s testimony was that he identified Martin as the driver of the car he saw. in his neighborhood shortly before the murder.” (State’s brief at p. 11.) The State concedes that at no time during trial were defense counsel informed that Sims had undergone hypnosis, nor were they provided with the transcript of the statement Sims made while under hypnosis. (State’s brief at p. 11 n. 3.) Finally, the State acknowledges that law enforcement knew of the hypnosis and that posteonviction counsel discovered the statement in the prosecutor’s files while conducting discovery in this proceeding. Id. The State maintains, however, that Martin did not prove that the prosecutors had knowledge of the statement before trial, and that Martin’s assertion that the prosecutors had engaged in deliberate misconduct is “paranoid speculation.” Id. We do not need to address this argument because the law clearly requires disclosure of exculpatory and impeachment evidence even if the evidence is “ ‘known only to police investigators and not to the prosecutor.’ [Kyles v. Whitley, 514 U.S. 419, 438, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995)]. In order to comply with Brady, therefore, ‘the individual prosecutor has a duty to learn of any favorable evidence known to others acting on the government’s behalf in this case, including the police.’ Kyles, [514 U.S. at 437, 115 S.Ct. at 1567].” Strickler v. Greene, 527 U.S. 263, 280-281, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999).

The trial record reflects that, during the defense’s cross-examination of John Sims, after he had surprised defense counsel by testifying that Martin was the driver of the car he had seen before the murder, Sims referred to a statement he gave to the police from which a composite sketch was completed. (T. 621.) Trial counsel had not been provided with this statement, so they requested it as soon as they learned of it during Sims’s cross-examination. The prosecution provided Martin with a statement Sims gave on June 11, 1985, and which had not previously been disclosed to Martin. Sims’s June 11 statement, however, contains no mention of a composite. In fact, it was not until the day after he gave that statement, on June 12, that Sims cooperated in the creation of a composite sketch of the driver he saw. (C.R. 3169.) On June 14, 1985, Sims gave a statement at the sheriffs department to Dr. Tom Michel under hypnosis, and the composite was mentioned in this statement. (C.R. 3133.) The June 14, 1985, statement Sims gave while under hypnosis was never provided to trial counsel.

In this Court’s opinion, the nondisclosure of the fact that, at the request of law enforcement, Sims underwent hypnosis before he gave one of his statements is a greater violation than the nondisclosure of the statement itself. Regardless of which is the greater violation, however, both the State’s failure to disclose to Martin that its key witness was hypnotized and its failure to disclose the statement Sims gave while under hypnosis constitute significant violations of the spirit and the letter of the law regarding disclosure of exculpatory and impeachment evidence.

1. The Nondisclosure of the Hypnosis

Martin contends that if the prosecution had disclosed that its primary witness had given a statement under hypnosis, he would have challenged Sims’s in-court identification and argued that it was unreliable and inadmissible because of the previous hypnosis. He further argues that nondisclosure of the fact that Sims had been hypnotized deprived the jurors of their right to fully evaluate the credibility of Sims’s in-court identification and deprived him of valuable impeachment evidence. The State contends that the hypnosis was “unproductive” because, it argues, the statement Sims gave under hypnosis was similar to the June 11 statement he made, and “therefore, the failure to inform the trial court or the jury that [hypnosis] was attempted does not undermine the confidence in the outcome of the trial.” (State’s brief at p. 15.) We disagree.

In Rock v. Arkansas, 488 U.S. 44, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987), the United States Supreme Court reviewed Arkansas’s per se rule excluding a defendant’s hypnotically refreshed testimony and limiting testimony to matters the defendant could prove were remembered before hypnosis. The Court found the per se rule unconstitutional. 483 U.S. at 62, 107 S.Ct. 2704. In reaching its decision, the Court discussed the value and risks associated with hypnosis:

“Responses of individuals to hypnosis vary greatly. The popular belief that hypnosis guarantees the accuracy of recall is as yet without established foundation and, in fact, hypnosis often has no effect at all on memory. The most common response to hypnosis, however, appears to be an increase in both correct and incorrect recollection. Three general characteristics of hypnosis may lead to the introduction of inaccurate memories: the subject becomes ‘suggestible’ and may try to please the hypnotist with answers the subject thinks will be met with approval; the subject is likely to ‘confabulate,’ that is, to fill in details from the imagination in order to make an answer more coherent and complete; and, the subject experiences ‘memory hardening,’ which gives him great confidence in both true and false memories, making effective cross-examination more difficult....
“The inaccuracies the process introduces can be reduced, although perhaps not eliminated, by the use of procedural safeguards. One set of suggested guidelines calls for hypnosis to be performed only by a psychologist or psychiatrist with special training in its use and who is independent of the investigation. These procedures reduce the possibility that biases will be communicated to the hypersuggestive subject by the hypnotist. Suggestion will be less likely also if the hypnosis is conducted in a neutral setting with no one present but the hypnotist and the subject.
“The more traditional means of assessing accuracy of testimony also remain applicable in the case of a previously hypnotized defendant. Certain information recalled as a result of hypnosis may be verified as highly accurate by corroborating evidence. Cross-examination, even in the face of a confident defendant, is an effective tool for revealing inconsistencies. Moreover, a jury can be educated to the risks of hypnosis through expert testimony and cautionary instructions.”

483 U.S. at 59-61, 107 S.Ct. 2704 (citations and footnotes omitted).

By failing to disclose that Sims underwent hypnosis at the request of law enforcement, the trial court and the jury were completely deprived of any consideration of the risks and effects of hypnosis discussed in Rock v. Arkansas and were precluded from considering this important factor in evaluating Sims’s vital in-court identification of Martin. Martin was deprived of his right to challenge the in-court identification on this basis and was precluded from cross-examining Sims about the substance of the statement and its inconsistencies with other statements.

This Court, too, has recognized the importance of considering the possible impact of hypnosis on a witness’s identification of an appellant. In Chamblee v. State, 527 So.2d 173 (Ala.Crim.App.1988), the appellant challenged the victim’s in-court identification of him because the victim was hypnotized after the crimes had been committed. He also argued that the victim had been given post-hypnotic suggestions that so hardened her recollection that he was denied his right of cross-examination. We found that, because the record disclosed that the victim had observed the defendant for hours during the commission of the crimes, and because she provided detailed descriptions to the officers immediately after the crimes, her identification of the appellant in a subsequent lineup and in court resulted entirely from her contact with him rather than from the effects of the hypnosis. 527 So.2d at 176. We held that the fact that a witness had been hypnotized before testifying did not, per se, disqualify the witness. We stated:

“In considering hypnotically enhanced testimony, a court must conduct a balanced inquiry to determine if the testimony had a basis that was independent of the dangers associated with hypnosis. The inquiry should determine whether the witness’s memory and ability to testify from it were distorted by the earlier hypnosis. The admissibility of such testimony is to be evaluated on a case-by-case basis, and the probative value of the testimony is to be weighed against its possible prejudicial effect.”

527 So.2d at 177 (citations omitted).

We held in Chamblee that the appellant was not denied his right to confrontation in that case and noted:

“The jury was aware of the hypnotic session, heard the testimony of the expert witnesses from both sides on the subject, and was in a position to fairly evaluate the effect of the hypnotic session on the testimony of the witness.... We find in the case sub judice that the hypnotic session did not impair defense counsel’s ability to cross-examine the victim, because the manner in which she testified, detailing the facts and circumstances surrounding the crimes, including the identification of appellant, indicates that her recollection and judgment were unimpaired by the hypnosis.”

527 So.2d at 177.

A similar crucial evaluation of the effect of hypnosis on Sims’s in-eourt identification of Martin was entirely foreclosed by the State’s failure to reveal that Sims had been hypnotized. Martin was unable to cite Sims’s hypnosis as a basis for a motion to suppress the in-court identification. At the Rule 32 hearing, trial counsel testified that, if he had been aware that Sims had been hypnotized, he would have considered hiring an expert in hypnosis and witness identification. (R. 296-97.) Information about the hypnosis should have been available to the trial court so that it could fully and fairly evaluate the reliability of Sims’s testimony, particularly his in-court identification of Martin. We note that the transcript of the statement discovered in these proceedings does not contain the induction procedure used by the hypnotist. Therefore, the court was unable to evaluate whether the procedure used by the hypnotist was overly suggestive.

Not only was the trial court unfairly limited by the nondisclosure, Martin’s jury was also unfairly limited. The jury was aware that Sims had not identified Martin until he testified at trial. Sims acknowledged that he had seen Martin’s photographs in circumstances in which Martin was identified as a suspect, but asserted that his recently found ability to identify Martin was unrelated to those viewings. However, the jury should have also been informed that, at the request of law enforcement, Sims had been questioned under hypnosis; it should have been provided with the details of the statement Sims gave under hypnosis so that the jurors could fairly evaluate the credibility of his trial testimony; and it should have been provided with any expert testimony the parties would have offered regarding the effects of hypnosis on recall and memory.

Finally, and most importantly, Martin was foreclosed from cross-examining Sims about the statement he gave under hypnosis and about the effect the hypnosis had on his recall. Because the prosecution failed to disclose the hypnotically induced statement, Martin was unable to question Sims about his inability, even under hypnosis, to identify the men he saw in the car. He was unable to question. Sims about discrepancies between that statement and others Sims gave. Because the prosecution failed to disclose the hypnotized statement, Martin had no reason to present expert witnesses who could have evaluated the hypnotic session and explained to the jury the effects of hypnosis on a witness’s memory and recall. In sum, Martin was completely deprived of the ability to challenge Sims’s in-court identification on the basis that it was affected by hypnosis.

Sims’s identification of Martin was of paramount importance to the State’s case. As the Alabama Supreme Court stated when it reversed a judgment for a Brady violation, “[T]he failure to disclose the evidence totally prevented [the appellant’s] counsel from preparing portions of the defense.” Ex parte Williams, 642 So.2d 391, 393 (Ala.1993). That defense counsel cross-examined Sims as vigorously as they could with the information they had does not eliminate the error caused by the prosecution’s failure to disclose this evidence. Id. The undisclosed evidence rendered Martin much like a fighter with one hand tied behind his back — the fact that he was able to land a few punches in cross-examination with one fist did not make the match a fair one. Only by cross-examining Sims about the hypnosis and its effects on his memory and identification would Martin have received all that he was due under Brady.

2. Discrepancies not Disclosed

The State contends that the nondisclosure of the statement given under hypnosis does not constitute a Brady violation because, it says, the hypnosis was not productive and it yielded no new information. The record, however, reveals otherwise.

In the June 11, 1985, statement the prosecution provided to Martin at trial, Sims stated that he had previously told the police that the suspects drove a Chevrolet automobile, a 1965 or 1966 model; he thought it was a Malibu. (C.R. 3140^12.) He said he could not remember whether the car had wheel covers. (C.R. 3140.) He said he believed the car was a two-door model, but he could not remember. (C.R. 3141.) Sims said he did not remember if the car had a license plate. (C.R. 3142.) Sims also said, “And I know the driver didn’t have a shirt on and I didn’t think the other guy did.” (C.R. 3137.)

In the undisclosed June 14, 1985, statement made under hypnosis, Sims said he thought the car had four doors and he did not think it had wheel covers. (C.R. 3122-23.) Although he first said he did not see the tag that closely and he wished he had looked, Sims then said that it seemed like a white tag with a red border, “Probably is a State tag, yeah.” (C.R. 3133.) Also Sims said he thought the driver was wearing a white shirt, like an undershirt, and the passenger was not wearing a shirt. (C.R. 3134-35.) He then said that perhaps neither man was wearing a shirt. (C.R. 3135.)

These discrepancies, combined with the fact that Sims was hypnotized on June 14, would have been the proper subject for cross-examination by Martin. Because Sims had already acknowledged that he had seen photographs of Martin before trial, and that the viewings might have influenced his identification, revelation of these discrepancies would have further called into question the reliability of the in-court identification. In addition to the discrepancies identified here, we note that the hypnotist told Sims that, when Sims later saw the composite he had helped create previously, if he saw or felt something that was not quite right, he would be able to pick it out. (C.R. 3133.) Thus, the hypnotist suggested that Sims’s memory of the suspect might change in the future and that he should have faith in his feeling about any later changes. Had the prosecution disclosed this statement, the court, the jury, and the defense would have been aware of this suggestion and would have been able to evaluate it in terms of the reliability of Sims’s surprising in-court identification of Martin as the driver of the car.

We recognize that hypnosis can be a useful forensic tool. However, we are also aware that the hypnosis of a witness carries identifiable risks. The prosecution’s failure to disclose to Martin that the only eyewitness who identified him had undergone hypnosis, and the prosecution’s failure to provide the statement the witness made under hypnosis, constituted a significant deprivation to Martin, to the court, and to the jury. Without this information, the court could not fairly evaluate the admissibility of the in-court identification. Without this information, Martin was unable to prepare a significant defense based on a challenge to the post-hypnotic testimony. Without this information, the jury was unable to knowledgeably evaluate the reliability of the in-court identification, if the trial court determined it was admissible. Based on the foregoing, we are forced to conclude that the prosecution violated Brady principles because the undisclosed evidence constituted impeachment evidence and because Martin was prejudiced by the nondisclosure.

C. Kathy Ellison’s Tentative Identification of a Third Person.

Martin next argues that the trial court erred when it denied postconviction relief because the State failed to disclose the fact that Kathy Ellison had tentatively identified someone other than Martin at a post-arrest lineup as the man she had seen. The court determined that this was not suppression of evidence, because defense counsel could have asked Ellison before trial whether she had identified someone else. The court stated, alternatively, that, even if the prosecution suppressed any information, Ellison’s deposition indicates that any identification she made was equivocal at best. (C.R. 2148-49.)

The trial court’s factual findings are not supported by the record, and we disagree with its conclusions of law. The record reflects that, on August 17, 1993, Kathy Ellison was deposed. Martin’s counsel asked her about viewing the lineup, and she acknowledged that she had been unable to “positively pick out the person who shot Allen Powell.” (C.R. 2221-22.) She said that she had tentatively pointed to someone else as the shooter. (C.R. 2222.) When asked if a member of law enforcement had thereafter told her that she had picked “the wrong person,” Ellison testified, “I knew I picked out the wrong person, but I don’t know how I heard or who told me.” (C.R. 2223.) When counsel sought to confirm that Ellison learned from a member of law enforcement that the person she tentatively identified was not “the right person,” Ellison acknowledged that that was correct. (C.R. 2223.) Review of more than the portion of the deposition quoted by the trial court reveals that Ellison identified someone other than Martin as the man who shot Allen Powell. This information was not disclosed to Martin. We find that this constituted another violation of Brady.

At Martin’s trial, Ellison testified that she had been asked to identify the two perpetrators but had never been able to identify either of them. She explained that her inability to identify them was due to the fact that her focus during the crime had been on the gun, not on the perpetrators. (T. 572, 586.) The jury was not told that, soon after the crime, Ellison apparently believed that she had focused enough on the perpetrators because she selected someone other than Martin from a police lineup. The jury was left with the impression that Ellison had not been able to identify anyone from the lineup, while the facts were otherwise. The fact that Ellison never identified Martin represented only a portion of the truth, and the facts not disclosed to Martin constituted exculpatory evidence.

“Brady requires the prosecution to produce evidence that someone else may have committed the crime.” Nicks v. State, 783 So.2d 895, 916 (Ala.Crim.App.1999), quoting Jarrell v. Balkcom, 735 F.2d 1242, 1258 (11th Cir.1984). Nondisclosure of exculpatory evidence bearing on the identity of the perpetrator has often led courts to hold that the principles of Brady were violated. See, e.g., Patton v. State, 530 So.2d 886, 890 (Ala.Crim.App.1988)(a telephone call to police from alleged eyewitness who implicated someone other than appellant was not disclosed); Hall v. State, 625 So.2d 1162, 1164 (Ala.Crim.App.)(remand ordered because crime-scene prints were not processed), ajfd on return to remand, 625 So.2d 1165 (Ala.Crim.App.1993); Jefferson v. State, 645 So.2d 313 (Ala.Crim.App.l994)(pretrial statements of witnesses implicating someone other than appellant or containing details inconsistent with witnesses’ trial testimony).

While Ellison did not identify Martin at trial, this alone does not preclude a finding of error under the facts of this case. Because the State’s witness sought to explain her inability to identify Martin as the killer by claiming that her attention was focused on the gun, the State made Ellison’s lack of identification an issue. The fact that Ellison had previously viewed a lineup and had selected someone other than Martin was material evidence, and it should have been disclosed to Martin. This evidence is particularly important, because, in a pretrial statement Ellison gave to the police the day after the murder, she said, “I just think that if I saw the guy that shot him I, I probably could recognize him. Because, I mean, there’s just something in the back of my mind that keeps popping up. Then the more I think about it the more ... he gets a little clearer.” (S.R. 49.) If Martin had been aware that Ellison had identified someone else in the lineup, and especially if he had been aware that this misidentifi-cation came after she told police that she was reasonably certain that she would recognize the killer if she saw him again, Martin could have cross-examined Ellison about her previous statement and about the misidentification. This information suggested that someone else might have committed the crime, and it should have been disclosed.

Combined with the evidence about Sims’s statement under hypnosis, we believe that had this evidence been disclosed, there is a reasonable probability that the result would have been different.

D. Fingerprint Evidence

Martin also contends that the circuit court erred when it denied relief based on the State’s failure to disclose fingerprint evidence. Martin claims that the presence of unidentified fingerprints on evidence related to the murder was exculpatory because, he says, it suggested someone else had committed the crime, and the evidence should have been disclosed to him. The trial court found that Martin had failed to establish that the prosecution had suppressed the information. The court found, in the alternative, that even if the prosecution had suppressed the fingerprint reports, Martin would not be entitled to relief because his trial counsel should have filed a motion to compel production of the reports. Finally, the court found that Martin failed to establish that the evidence was material. Martin contends that a forensic report indicating that an unidentified print had been recovered from the ATM receipt discarded after Powell was murdered suggested the existence of another perpetrator. Martin contends that the State’s failure to disclose this information prevented him from arguing to the jury that someone else was responsible for Powell’s death. Martin also contends that the court should have granted him relief because the State failed to disclose that prints other than his were found on a rifle scope recovered in connection with this crime. The prosecution presented testimony at trial that Martin had a scope in his possession approximately one month before the shooting. A rifle and the scope attached to it had been stolen before trial, and ballistics evidence established that the shot that killed Powell had been fired from the stolen rifle. Martin argues that, if the State had disclosed the fact that unidentified prints had been lifted from the scope, he would have been able to use the evidence to argue to the jury that Powell was murdered by someone other than him. The evidence was exculpatory and material, he asserts, because it weakened the link between Martin and the murder weapon. The State contends that Martin certainly knew that his prints were not on the rifle scope and that he could have argued that this lack of evidence created a reasonable doubt. It argues, further, that there was no proof that the prints on the scope matched the prints on the ATM receipt, and that, if this proof had existed, then Martin’s claim that an unidentified person had committed the murder would have been stronger.

Again, we are forced to ■ conclude that the trial court’s findings are not supported by the evidence presented or by the relevant law. Martin’s trial counsel testified at the Rule 32 hearing that they did not receive any fingerprint reports until, during trial, they became aware that some reports existed. The court ordered the prosecution to disclose all fingerprint reports, but trial counsel testified at the Rule 32 hearing that the reports regarding the unidentified prints on the rifle scope and on the ATM receipt were in the police files but were never disclosed at trial. (R. 301-02, 359.) The circuit court’s finding that Martin failed to prove any suppression is simply not supported by the Rule 32 record. The court’s assertion that, if the prosecution had failed to disclose these particular fingerprint reports, defense counsel should have moved to compel the prosecution to disclose them is not well taken. Martin’s counsel could not be expected to know that the prosecution disclosed only some of the reports, especially after the trial court ordered the prosecution to disclose all fingerprint reports and the prosecution agreed to do so.

We further find that the circuit court erred when it determined that Martin had failed to establish that the undisclosed fingerprint evidence was material. The fatal shots were fired from a rifle that had been stolen approximately one month before the murder. The only piece of demonstrative evidence linking Martin to the murder was the scope attached to the rifle when it was stolen. A former girlfriend of Martin’s codefendant testified at trial that she saw Martin with a rifle scope a day or two before the murder. (T. 488-89.) The fact that three latent prints were recovered from the scope, but that they did not match Martin’s or his codefendant’s, was material because it weakened the connection the State attempted to make between Martin, the murder weapon, and the fatal shooting. Moreover, the evidence suggested that someone other than Martin had been in possession of the scope. The evidence should have been provided to Martin, and the failure to do so violated Brady principles. See, e.g., Hamilton v. State, 677 So.2d 1254, 1259-61 (Ala.Crim.App.1996)(reversible error found when undisclosed evidence weakened a significant link in the prosecution’s evidence).

On the day after the shooting, credit cards and an ATM receipt belonging to the victim were found on the roadside several miles from the murder scene. The evidence suggested that the perpetrators had taken the items after the shooting and had discarded them on the roadside. A latent print was recovered from the ATM receipt, but a forensic report indicated that the print did not match Martin’s or his code-fendant’s print, nor did it match the prints taken from Powell, his wife, or the investigator who collected the evidence. (C.R. 3109, 3111.) In making its determination that the evidence was not material, the circuit court noted that the receipt was apparently found by a member of a road crew, and it was unknown how many people had handled the receipt. (C.R. 2151.) While this is certainly true, we believe that this is precisely the type of factual determination a jury is to make in a trial, after it is presented with all of the relevant facts. Martin was deprived of the opportunity to even present to the jury the evidence indicating that an unidentified print was found on an item apparently stolen from the victim during the robbery-murder. We believe that evidence of the unidentified print on the receipt should have been disclosed to Martin, who then could have argued that it constituted evidence that a third person committed the crime. Again, nondisclosure of this fingerprint evidence constituted a violation of Brady principles.

The prosecution’s failure to disclose evidence that prints other than Martin’s and his codefendant’s were recovered from items related to the crime strengthened the State’s case unfairly. This is particularly true with regard to the evidence that three prints, none of which was the defendant’s, were lifted from the rifle scope. The fingerprint evidence was material, and it should have been disclosed to Martin. When this nondisclosure is combined with the others discussed in this Court’s opinion, we are compelled to find that the prosecution’s evidentiary suppression undermines the confidence in the outcome of Martin’s trial. Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995).

E. Identification of the Vehicle

Martin also argues that the trial court erred when it determined that a photographic array of automobiles shown to witness Stanley Wright and Wright’s pretrial statement were not material evidence. Wright was the only witness who, at trial, identified Martin’s car as the one he saw near the scene of the murder moments before the shooting occurred. (T. 553-54.)

Stanley Wright had been working in a yard near the murder scene. Approximately two weeks after the murder, Wright gave a statement to the police. (S.R. 52.) In that statement, Wright described the car as a dark brown 1974 Chevrolet Impala. The statement was not disclosed to Martin. (R. 305.) Approximately two months later, after Martin had been arrested, Wright was shown photographs of six Chevrolet automobiles. (C.R. 3182-90.) Wright gave a taped statement and indicated that, from the photographs, he had identified a 1967 Chevrolet Impala as the car he had seen on the day of the murder. (S.R. 51.) Martin was not provided with a copy of that statement, and counsel testified at the Rule 32 hearing that he could not recall having seen the photographic array displayed to Wright. (R. 310.) At Martin’s trial, Wright testified that, on the day of the murder, he had seen a 1968 Impala in the neighborhood. He said the car he saw on the day of the murder was the same as that depicted in State’s Exhibits 1-4, which were photographs of Martin’s car. (T. 552-53.)

The circuit court determined that the prosecution’s failure to disclose Wright’s pretrial statement, in which he identified the car as a “1974 Impala,” caused no prejudice to Martin. The court found that Wright had explained at trial that he was able to identify the car as a 1968 Impala because his neighbor owned the same type of car. (C.R. 2159.) Martin correctly argues to this Court that cross-examination of Wright regarding his earlier identification of the car as being a much later model would have been important impeachment evidence. Contrary to the determination of the circuit court, we believe that Wright’s explanation regarding his neighbor owning a 1968 Impala did not sufficiently explain Wright’s earlier identification of the car he saw as a 1974 Impala. To the contrary, if Wright was familiar with his neighbor’s car, it would have been more reasonable to assume that Wright would have correctly identified the car he saw on the day of the murder. The statement should have been disclosed to Martin, so that he could have impeached Wright’s testimony.

We find the use of the photographic array even more troubling. The circuit court found that the array was not unduly suggestive, that all of the cars were late 1960s model Chevrolets, and that the outcome of the trial would not have been different if Martin had been able to impeach Wright with the array. (C.R. 2154.) Our viewing of the photographs in Defendant’s Exhibit 20 and our reading of the testimony about the photographs compels a different determination. Although Wright described the car he saw as brown, the first car in the array is white, and the sixth car is orange. Of the six cars depicted in the photographs, Martin’s car is the only 4-door Impala. The remaining cars are 2-door Chevelle Malibus. (R. 430-31.) Martin’s car is the only one with the front wheels on blocks, and it is the only car with a marked patrol car immediately behind it in the photograph. These factors caused Martin’s car to stand out so much from the others in the array that it was unduly suggestive. If the prosecution had disclosed the array to Martin, he could have moved for suppression of Wright’s in-court identification of Martin’s car or, at a minimum, used the suggestive array to impeach Wright’s identification of Martin’s car.

Wright was the only witness at trial to identify Martin’s car. Therefore, opportunities for impeachment of his testimony were crucial to Martin. If the evidence had been disclosed, Martin could have presented it to the trial court to aid in determining whether to allow Wright’s testimony, and he could have presented it to the jury so it could evaluate the reliability of Wright’s testimony. As was true with the nondisclosure of witness Sims’s prior statement and the fact that Sims was hypnotized, these nondisclosures unfairly limited Martin’s development of his defense on these extremely important matters. The confidence in the result reached in Martin’s trial has been further undermined by the prosecution’s failure to disclose evidence regarding Stanley Wright’s identification of Martin’s car.

F. Promises to Robert Todd Elliot

Martin argues ■ that the circuit court erred when it found that no promises of benefits were made to Robert Todd Elliot, a former cell mate of Martin’s, other than the promise of a transfer to another prison, in exchange for his testimony against Martin. Elliot testified that while they were cell mates, Martin told him that he had shot Powell accidentally, that he told his brother, codefendant Edward Mon-teith, to dispose of the gun and the car, and that he (Martin) had been placed in a lineup but not identified. (T. 720-22, 731.)

Martin correctly argues that a prosecutor’s failure to disclose the existence of an agreement with an informant witness violates Brady principles, because the agreement might provide evidence regarding the witness’s motivation to testify. E.g., Ex parte Womack, 541 So.2d 47, 61-62 (Ala.1988). At Martin’s trial, Elliot acknowledged that he hoped that in exchange for testifying he would be moved to a prison closer to his family, that he might get an early release on parole, and that he might have an easier time in prison. (T. 727.) The record developed in the Rule 32 proceeding indicates that the only agreement reached between the prosecution and Elliot’s lawyer in exchange for his testimony was that Elliot would be transferred to a prison closer to his family and that the prosecutor would inform the parole board of Elliot’s cooperation. (R. 405-08.)

Elliot’s trial attorney testified in this proceeding that he did all that he could do to gain favorable treatment for his client, but that he and the prosecutor did not come to any agreements other than that he would be transferred to a prison closer to his family. (R. 414-16.) Elliot had already entered a guilty plea and was outside the trial court’s jurisdiction at the time he testified at Martin’s trial. (R. 413.) Elliot was transferred to a prison closer to his family, but he did not receive an early release on parole. (R. 416.)

Although Martin argues that evidence regarding negotiations for reducing Elliot’s sentence and that Elliot’s expectations regarding a sentence reduction constituted material evidence that should have been disclosed, we agree with the State that the record does not support an inference that the prosecutor made promises that were not disclosed to Martin. Moreover, in his testimony in Martin’s trial, Elliot acknowledged that he hoped to receive several benefits in exchange for his testimony against Martin. Elliot’s testimony did not go unimpeached. An argument can be made that Elliot’s testimony was impeached to a greater degree than might have been warranted, because, in the end, Elliot received only a transfer, instead of all of the benefits he testified that he hoped to receive.

G. Descriptions by Kathy Ellison

Martin argues that the circuit court erred when it found that the composite sketch created with Kathy Ellison’s input was produced at his trial. He also contends that the circuit court erred when it found that no Brady violation had occurred as a result of the prosecution’s failure to disclose a “be on the lookout” (BOLO) containing Ellison’s description of the killers.

Martin’s attorney testified at the Rule 32 proceeding that the composite Ellison created was disclosed at trial. (R. 307.) Thus, there was no suppression of the composite.

With regard to the BOLO, the circuit court found that disclosure of the description would not have affected the outcome of the trial, because Ellison was unable to identify Martin at trial. (C.R. 2157.) Martin contends that the BOLO description differed so significantly from his actual appearance that it was material and exculpatory, for the same reasons as those given regarding the failure to disclose Ellison’s selection of another person in the lineup. We agree with Martin, and find that the circuit court erred when it found that no Brady violation resulted when the prosecutor failed to disclose the BOLO. We find, for the reasons discussed in Part C, above, that the description in the BOLO constituted impeachment evidence that should have been disclosed. At trial, Ellison contended that she had never been able to identify the killers because her focus had been on the murder weapon. (T. 572, 586.) The fact that she described the killer in some detail after the murder, and that the description was dissimilar from Martin’s appearance, were matters that might have affected the jury’s assessment of Ellison’s credibility. United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). Therefore, the prosecution should have disclosed this evidence.

Conclusion

As the United States Supreme Court recognized decades ago:

“Society wins not only when criminals are convicted but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly.... A prosecution that withholds evidence on demand of an accused which, if made available, would tend to exculpate him or reduce the penalty helps shape a trial that bears heavily on the defendant. That casts the prosecutor in the role of an architect of a proceeding that does not comport with the standards of justice.”

Brady v. Maryland, 373 U.S. 83, 87-88, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

James Martin’s capital-murder conviction and death sentence followed a trial proceeding in which the prosecution failed to disclose, not just one, but several pieces of material evidence. The cumulative effect of these numerous nondisclosures was so serious that we are compelled to find that there is a reasonable probability that disclosure of the suppressed evidence would have produced a different result at Martin’s trial. “The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence.” Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). The verdict here was so tainted by the prosecutorial nondisclosure of material evidence that it is not “worthy of confidence.” Martin was not convicted or sentenced in accordance with fundamental due process.

“Unless, indeed, the adversary system of prosecution is to descend to a gladiatorial level unmitigated by any prosecutorial obligation for the sake of truth, the government simply cannot avoid responsibility for knowing when the suppression of evidence has come to portend such an effect on a trial’s outcome as to destroy confidence in its result.”

Kyles v. Whitley, 514 U.S. 419, 439, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995).

For the foregoing reasons, we hold that the trial court abused its discretion when it denied Martin’s postconviction petition. We now reverse the judgment of the Montgomery Circuit Court and remand the cause for a new trial.

REVERSED AND REMANDED.

McMILLAN, P.J., and SHAW, J., concur; BASCHAB, J., concurs in the result; WISE, J., dissents, without opinion.

      . The State acknowledges that “most conservative prosecutors reviewing this case might conclude that, out of an abundance of caution, they would have provided the defendant access to most of the disputed evidence.” (State's brief at p. 32.) The State is then left to argue that Martin did not prove that there was a reasonable probability that the result would have been different.

      . The State cannot avoid this acknowledgment. The transcript of the hypnotized interview indicates that the interview was conducted at the Montgomery County Sheriff's Investigative Division, and that ''[i]n an effort to gain valuable insight into the events leading up to the Powell Homicide, this Department has asked that Mr. Sims submit to hypnosis and he has agreed to do so." (C.R. 3122.)

      . (T_) refers to the pages of the transcript of Martin's 1986 trial.

      . (C.R. _) refers to pages of the clerk's record in this postconviction proceeding.

      . The State has maintained that these nondis-closures were of no significance, in part because it is unclear that Sims was actually hypnotized. In its order denying this petition, the circuit court referred to the undisclosed interview as the "attempted hypnosis” of Sims (C.R. 2142-46), and noted that at the postconviction hearing, the State had submitted a 1998 affidavit from Sims indicating that he did not feel that he was "actually hypnotized” (C.R. 3909). The trial court failed to refer to the affidavit of an investigator who, in 1992 and 1993, had spoken to Sims about Sims’s perceptions while he had been under hypnosis in this investigation. (C.R. 3876.) The court also failed to refer to the affidavit of Dr. Michel, who stated that, in 1985, at the request of law-enforcement officers, he had induced Sims into what appeared to be a state of hypnosis. (C.R. 3875.) We recognize that whether Sims was “actually hypnotized” was disputed in this proceeding. The fact that law enforcement requested Dr. Michel to hypnotize Sims, that Sims gave a statement while arguably in a hypnotic state, and that this information was never disclosed before Martin was convicted and sentenced to death remain relevant, whether or not Sims was “actually hypnotized.” Moreover, if the prosecution had disclosed that Dr. Michel had taken a statement from Sims during his "attempted hypnosis,” the trial court and Martin would have been able to explore this issue fully at the time of trial. The State’s lack of disclosure, however, foreclosed a timely resolution of the issue, and has forced Martin, witness Sims, and the trial court to engage in speculation about what actually occurred.

      . (R._) refers to the transcript of the hearing held in this Rule 32 proceeding.

      . (S.R.--) refers to pages of the supplemental record filed in this proceeding.

      . This argument is not persuasive. It ignores the very principles Brady v. Maryland and its progeny established decades earlier, and it attempts to place the burden on the defendant to move to compel disclosure of evidence he does not know exists.

      . This argument, too, ignores the fact that Martin was unaware before trial that any fingerprint reports existed. Comparison testing of the unidentified prints on the receipt and the prints on the rifle scope was not an option since the existence of the fingerprint reports was not made known to Martin before trial.

      . We note, too, that on the day after the murder, Kathy Ellison twice told the police in a statement not disclosed to Martin that the murder weapon did not have a scope attached to it. (S.R. 41, 48.) If this statement had been disclosed, Martin would have been able to weaken the link the State sought to establish between Martin and the rifle. The existence of fingerprints other than Martin’s would have assisted Martin in this effort.


source: Caselaw Access Project

author: McMILLAN, Presiding Judge. SHAW, Judge,

license: Public Domain

text:
    Dedrick FREEMAN v. STATE.
    CR-00-2202.
    Court of Criminal Appeals of Alabama.
    March 1, 2002.
    Robert L. Turner, Montgomery, for appellant.
    Submitted on appellant’s brief only.
   McMILLAN, Presiding Judge.

The appellant, Dedrick Freeman, was found guilty of unlawful distribution of a controlled substance. The trial court sentenced him to three years’ imprisonment, suspended the sentence, and imposed two additional five-year sentence enhancements because the offense occurred within three miles of a school and a public housing project. See §§ 13A-12-250 and -270, Ala.Code.1975. The court also ordered the appellant to pay court costs, attorney’s fees, a victim’s compensation assessment, and a $2,000 penalty under the Demand Reduction Assessment Act.

The appellant’s appointed counsel has filed an Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), brief, in which he states that there are no meritorious issues that can be raised on behalf of the appellant. The appellant has filed no points or issues for this court to consider, and a review of the record reveals no issue that warrants a review of the appellant’s conviction. However, it appears that an error may have occurred during the appellant’s sentencing.

The Demand Reduction Assessment Act, § 13A-12-281(a), prescribes a $1,000 penalty for first offenders and a $2,000 penalty for second and subsequent offenders. At the appellant’s sentencing hearing, the prosecutor informed the trial court that the fine “should be two thousand dollars rather than one because of the prior POM II [sic].” The Demand Reduction Act applies to § 13A-12-213, Ala.Code.1975, possession of marijuana in the first degree, but it does not apply to § 13A-12-214, possession of marijuana in the second degree.

Due to the apparent inconsistency between the appellant’s prior offense and the penalty imposed by the trial court, we must remand this cause for clarification and, if necessary, for a correction of the penalty. A return should be filed with this court within 42 days of the release of this opinion.

REMANDED WITH DIRECTIONS.

BASCHAB and WISE, JJ., concur. SHAW, J, concurs in part and dissents in part, with opinion, and COBB, J., joins.

SHAW, Judge,

concurring in part and dissenting in part.

I agree that this case needs to be remanded for clarification and for possible correction of the fine imposed. However, I would also reverse Dedrick Freeman’s sentence and remand the case for resen-tencing in accordance with my special writing in Poole v. State, [Ms. CR-99-1200, August 31, 2001] - So.2d -, - (Ala.Crim.App.2001) (Shaw, J., concurring in the result).


author: BLUE, Chief Judge.

text:
    Michael D. SWEEZEY, Appellant, v. STATE of Florida, Appellee.
    No. 2D01-2650.
    District Court of Appeal of Florida, Second District.
    Nov. 8, 2002.
    Rehearing Denied March 10, 2003.
    James Marion Moorman, Public Defender, and Judith Ellis, Special Assistant Public Defender, Bartow, for Appellant.
    Richard E. Doran, Attorney General, Tallahassee, and Susan M. Shanahan, Assistant Attorney General, Tampa, for Ap-pellee.
   BLUE, Chief Judge.

Michael D. Sweezey appeals his convictions and sentences for conspiracy to traffic in methamphetamine, possession with intent to sell, and possession of paraphernalia. We affirm the convictions without discussion but reverse the minimum mandatory sentence for conspiracy to traffic.

Sweezey argues, and the State properly concedes, that the seven-year, minimum mandatory sentence for conspiracy to traffic in methamphetamine was authorized by chapter 99-188, Laws of Florida, which this court found unconstitutional as a violation of the single subject rule. See Taylor v. State, 818 So.2d 544 (Fla. 2d DCA), review dismissed, 821 So.2d 302 (Fla.2002). Accordingly, based on Taylor, we reverse the sentence and remand for resentencing in accordance with the valid laws in effect on the date of Sweezey’s offense.

Affirmed in part; reversed in part; remanded for resentencing.

SALCINES and DAVIS, JJ., Concur.


author:
PER CURIAM.
      COPE, J.

text:
    SCI FUNERAL SERVICES OF FLORIDA, INC., Appellant, v. Anel HENRY, Appellee.
    No. 3D00-3607.
    District Court of Appeal of Florida, Third District.
    Nov. 20, 2002.
    Rehearing and Rehearing En Banc Denied March 7, 2003.

      Shook, Hardy & Bacon and Courtney B. Wilson and Gaye L. Huxoll, Miami, for appellant.
    Clyne & Self and Reginald J. Clyne, Coral Gables, and Donnise A. Desouza, for appellee.
    Before COPE, GREEN and RAMIREZ, JJ.
   PER CURIAM.

This is an appeal of an adverse judgment after jury verdict in a lawsuit for tortious interference with a contractual relationship. We affirm.

I.

Plaintiff-appellee Anel Henry was employed by defendant-appellant SCI Funeral Services of Florida, Inc. as a group leader in the sales department. Upon being promoted to that position, plaintiff was required to execute a non-compete agreement. The contract contained a non-compete provision which states:

8. Non-Compete Provisions. For a period of twelve (12) months after my employment has been terminated for any reason with or without cause, I will not directly or indirectly solicit or sell any products, goods or services similar to, related to or competitive with the Company’s products, goods or services in Dade County, Florida.
13. Notice. I authorize the Company to notify others, including clients and customers and my future employers, of the terms of this Agreement and my responsibilities.

R. 17-19.

In the summer of 1994, a female employee made a charge of sexual harassment against the plaintiff. SCI began an investigation and temporarily suspended the plaintiff.

During the suspension, the plaintiff received orders from the United States Army to report for military reserve duty in Panama, beginning on August 29, 1994. The plaintiff left the United States for Panama on August 22.

The evidence showed that on August 24 or 25, SCI employee Evelyn Ortiz, called the plaintiff in Panama to advise him that the sales manager was terminating his employment. In the meantime, the Army extended the plaintiffs tour of duty. The plaintiff eventually returned to Miami from Panama in July 1995. On his return the plaintiff contacted SCI and asked to resume employment. SCI refused.

On August 15, 1995, the plaintiff applied for work with Woodlawn Park Cemetery Company, a competitor of SCI. Woodlawn made an offer of employment to commence in October. Woodlawn’s management approved the contract on September 5, and the plaintiff began work with Woodlawn in October.

In November 1995, SCI’s counsel sent a letter to the plaintiff, with a copy to Wood-lawn, threatening suit for violation of the non-compete agreement. It was SCI’s position that SCI had not formally terminated the plaintiff until his August 1995 return from military duty, and that the twelve-month period began to run in August of 1995, not in August of 1994 when the plaintiff departed for Panama.

Upon receiving its copy of the demand letter, Woodlawn called SCI to inquire about SCI’s intentions. An SCI officer advised that SCI intended to sue Wood-lawn if Woodlawn employed the plaintiff. As a result, on November 22, 1995, Wood-lawn fired the plaintiff.

The plaintiffs position was that his twelve-month non-compete period had expired. By his analysis, he had ceased work with SCI in August of 1994 and did not report to work with Woodlawn until October of 1995. He contended that the non-compete agreement by its terms was no longer enforceable.

Woodlawn advised the plaintiff that they would rehire him if he could obtain a release from SCI. The plaintiff attempted to discuss this with his former supervisor at SCI, but the supervisor would not speak with him.

The plaintiff retained counsel, who in February 1996 wrote to SCI’s counsel requesting a release. SCI countered with a proposal to exchange mutual releases. The plaintiff refused because he .did not want to give up any potential cause of action he may have against SCI.

In April 1996 plaintiffs counsel persuaded Woodlawn that the plaintiffs non-compete period with SCI had expired. Wood-lawn rehired the plaintiff. SCI never filed suit to enforce the non-compete agreement.

ll.

The plaintiff sued SCI for damages for having him terminated from his job at Woodlawn. He alleged breach of contract (Count I), reasoning that the non-compete period had expired and that SCI had breached the contract by threatening suit on an expired non-compete agreement. The plaintiff alleged alternatively (Count II) that SCI had tortiously interfered with his employment with Woodlawn.

In Count III, the plaintiff alleged that SCI had violated the Uniformed Services Employment and Reemployment Rights Act of 1994, 38 U.S.C. § 4311. That statute prohibits a denial of reemployment on account of a person’s performance of military duty. The plaintiff claimed that SCI had violated the federal statute by terminating him while he was away on military reserve duty, and refusing to reemploy him on his return.

Because the plaintiffs complaint included a federal cause of action, SCI removed the case to the United States District Court for the Southern District of Florida. Finding that SCI’s reasons for terminating the plaintiff were not related to his military service, the court entered summary judgment in favor of SCI on the federal statutory claim.

The federal court also found that there had been no breach of contract, and entered summary judgment in favor of SCI on that claim. The federal court declined to exercise jurisdiction over the tortious interference claim, and remanded it to the Florida courts for consideration.

Upon the return of the case to the Florida .court, SCI moved to dismiss, arguing that the tortious interference cause of action was barred by the litigation privilege and the privilege for settlement discussions. The pretrial motions, as well as the trial objections and motion for directed verdict, were denied.

The jury returned a verdict for the plaintiff for $500,000, which the trial court remitted to $350,000. SCI has appealed.

III.

SCI argues that its demand letter and the conversations thereto were absolutely privileged under the litigation privilege recognized by the Florida Supreme Court in Levin, Middlebrooks, Mabie, Thomas, Mayes, & Mitchell, P.A. v. U.S. Fire Insurance Co., 639 So.2d 606 (Fla.1994). The Levin court held that the litigation privilege bars causes of action in tort for statements made in connection with a judicial proceeding. SCI argues that the litigation privilege exists for a demand letter which threatens litigation, and any communications pertinent thereto.

We decline to reach this issue because we conclude that SCI is estopped from raising it. We reach that conclusion on the following analysis.

It stands to reason that an employer cannot threaten an employee with litigation over a non-compete agreement which has expired. If the employer wrongly does so, thus causing the employee to lose his or her job, there must necessarily be a judicial remedy for such conduct.

In the present case, SCI successfully persuaded the federal court that the plaintiff in this case did not have a remedy by way of an action for breach of contract. To our way of thinking it is inconsistent for SCI then to argue in the Florida courts that the plaintiff does not have an action in tort. We therefore conclude that SCI is estopped from raising the argument that there is an absolute bar to the tort claim on account of the litigation privilege. For the same reason we decline to entertain SCI’s argument under the economic loss rule. See Blumberg v. USAA Casualty Ins. Co., 790 So.2d 1061, 1066 (Fla.2001); Bernard Berman, P.A. v. P. Gary Stern, M.D., P.A., 731 So.2d 148, 149 (Fla. 4th DCA 1999).

SCI argues that it also has a privilege to protect its own pecuniary interest under the non-compete agreement. See Ethyl Corp. v. Balter, 386 So.2d 1220, 1225 (Fla. 3d DCA 1980). Under the facts of the present case, however, SCI’s conduct was not protected by such a privilege.

The non-compete agreement provided that upon separation from employment, the plaintiff would observe a twelvemonth non-competition period. It necessarily follows that after the twelve-month non-compete period, the employee was allowed to work in a competing business.

In August 1994, the plaintiff left the United States on military duty and did not return until July 1995. On his return, he asked SCI to rehire him and SCI refused.

In mid-August, the plaintiff applied for work with Woodlawn, who offered him a position to begin in October. Thus, when the plaintiff began work with Woodlawn, it had been fourteen months since his departure from SCI on military leave. There is no claim that the plaintiff engaged in any competing work during the twelve months following his departure for Panama.

Under any reasonable analysis, the twelve-month non-compete period began with the plaintiffs departure from Miami in August of 1994, and expired in August of 1995. SCI wrote its demand letter in November of 1995. SCI had no privilege to enforce an expired non-compete agreement against the plaintiff. Thus, SCI had no pecuniary interest privilege under the facts of the present case.

SCI argues that the plaintiffs absence for military duty did not count against the twelve months non-compete period. SCI argues that the plaintiff was not formally separated from SCI until his return from Panama, and that SCI could “tack” the non-compete period on to the end of the military leave.

We reject SCI’s argument on this point. SCI contracted for a twelve-month non-compete period, and that is what SCI received. No competition was taking place during the military leave, and the military leave should have been counted as part of the non-compete period.

SCI argues that the twelve-month period cannot be deemed to begin until July 1995, because when the plaintiff applied for unemployment compensation, he stated that his termination date was July 1995. The plaintiff replies that after the unemployment compensation hearing, the unemployment referee found that the effective termination date was in August 1994.

In any event, we do not think fixing the date of eligibility for unemployment compensation benefit establishes, under the circumstances present here, the time frame for the non-compete period. That is so because the plaintiffs paid period of employment with SCI was followed by a paid period of employment with the Army, thus leading to a question what the correct termination date is for unemployment compensation purposes. Regardless of how that question is answered, we think the period of military leave counts as part of the non-compete period, where the plaintiff did not compete during his period of absence and where he did not resume employment with SCI upon the end of the military leave.

SCI argues alternatively that it was allowed to send the demand letter because the plaintiff interviewed with Woodlawn on August 15, 1995, which was eleven and a half months after his departure for military leave and still within the twelve-month non-compete period. Again, we reject SCFs argument. It is not a violation for the plaintiff to interview for another job, so long as he does not take any action to compete during the twelvemonth non-compete period. In this case, Woodlawn’s management did not approve the employment until September 1995, which was thirteen months after the plaintiffs departure for military leave, and the plaintiffs reporting date with Woodlawn was not until October 1995, which was fourteen months after the plaintiffs departure for military leave. Under the facts of the case there was no pecuniary privilege. While we are inclined to think that the above analysis follows as a matter of law, in any event the above facts were presented for the jury’s consideration, which found in favor of the plaintiff.

SCI argues that the trial court erred by allowing evidence of the plaintiffs request for a release from SCI in February of 1996, and SCI’s counterproposal to exchange mutual releases. SCI argues that these were inadmissible settlement discussions. See § 90.408, Fla. Stat. Given the wording of the stipulation regarding the admissibility of the plaintiffs correspondence on these issues, we can see how the trial court reached the conclusion that it did on the issue of admissibility. However, even if SCI is correct on this point, the admission of the evidence was harmless.

We conclude that the remaining points are without merit. We thus affirm both on the appeal and the cross-appeal.

Affirmed.

COPE, J.

(concurring).

In the interest of clarifying Florida law, I address the contract analysis performed by the federal court.

The federal court ruled that SCI’s action in enforcing an expired non-compete agreement did not amount to a breach of contract. As to that claim, Florida law was controlling. Respectfully, the federal ruling does not accurately reflect Florida law.

In the federal court, the plaintiff argued that by writing the November 1995 demand letter, SCI had breached the implied covenant of good faith and fair dealing.

In determining that there was no breach of contract, the federal district court said:

The Eleventh Circuit has recognized that absent breach of an express term of the contract, an action cannot be maintained for breach of the implied covenant of good faith. See Alan’s of Atlanta, Inc. v. Minolta Corp., 903 F.2d 1414, 1429 (11th Cir.1990); Burger King Corp. v. Holder, 844 F.Supp. 1528, 1530 (S.D.Fla.1993) (Nesbitt, J.). The implied covenant of good faith is not an independent term in a contract, but rather a doctrine that modifies the meaning of all explicit terms in a contract. See id. at 1429. When examining a contract, provisions “should be read in common with the other provisions of the contract.” Gibbs v. Air Canada, 810 F.2d 1529, 1533 (11th Cir.1987). The parties’ intentions should be “determined from an examination of the whole contract” and not just isolated phrases. Lalow v. Codomo, 101 So.2d 390, 393 (Fla.1958).

When considering the Non-Compete Agreement as a whole, the Court finds that the [contract] did not expressly impose a duty upon Defendants to not interfere with Plaintiffs right to engage in competing activities upon the expiration of the twelve month period.

Order, Henry v. SCI Funeral Services of Florida, Inc., No. 96-1084-Civ, Order at 5-6 (S.D.Fla. Nov. 18, 1997); see also Barnes v. Burger King Corp., 932 F.Supp. 1420, 1438-39 (S.D.Fla.1996). I cannot agree with this interpretation of Florida law.

The non-compete agreement in this case provided for a twelve-month period of non-competition. That is an express term of the contract.

It follows by necessary implication that after the twelve-month non-compete period has expired, the employee is allowed to compete. That is an implied term of the contract. It is not explicitly stated, but necessarily follows from the contract’s provisions.

The Florida Supreme Court has said, “A contract includes not only the things written, but also terms and matters which, though not actually expressed, are implied by law, and these are as binding as the terms which are actually written or spoken.” Sharp v. Williams, 141 Fla. 1, 192 So. 476, 480 (1939) (citations omitted); see also 11 Fla. Jur.2d Contracts § 169 (1997).

This court has said:

A written instrument may have legal effect beyond its actual words, resultant upon its wording and purpose. It must be considered to embody obligations which legally are to be implied from its wording and the relationship of the parties, and obligations thereunder that are implied by law, although not actually specified therein, are legal obligations founded on the contract, which in this instance was a written contract.

Heredia v. Safeway Trails, Inc., 369 So.2d 418, 420 (Fla. 3d DCA 1979) (citations omitted). In Heredia, the court held that a bus ticket included the implied term that the bus company convey the passenger to the destination safely. Id. at 420. A passenger was allowed to bring suit for breach of contract after the passenger was injured in a wreck. Id. at 420.

The same analysis applies in the context of the non-compete agreement. There was an implied term that the employee would be free to compete after one year of non-competition. Under Florida law, the plaintiff would be allowed to bring an action for breach of the implied promise. Heredia. And so long as there is an enforceable provision of the contract, it follows that the implied covenant of good faith and fair dealing can be invoked.

It is, of course, true that the contract claim is not now before us. I address the issue to point out that Florida’s contract remedies are not as narrow as the federal court believed.

      . At the trial the complainant denied that there had been any harassment by the plaintiff.

      . The letter states:
      Dear Mr. Henry:
      This firm represents SCI Funeral Services of Florida, Inc. d/b/a Memorial Sales.
      As a condition of your employment with Memorial Sales, you executed a Confidentiality and Non-Compete Agreement for Group Leader on April 11, 1994. The Agreement provides that for a period of twelve (12) months following the termination of your employment with Memorial Plan, you will not:
      1. Solicit any employee or former employee of Memorial Sales;
      2. solicit any present or former customers or clients of Memorial Sales in competition with Memorial Sales; or
      3. engage in any solicitation or sales activity in Dade County, Florida, in competition with Memorial Sales.
      It has come to our attention that subsequent to the termination of your employment with Memorial Sales, you have become employed with Woodlawn Park Cemetery Company. We have received information indicating that you may have violated the terms of your Non-Compete Agreement and may have done so in the course and scope of your employment with Woodlawn Park Cemetery Company.
      We hereby demand you cease any such activities and that you comply with the terms of the Confidentiality and Non-Compete Agreement for Group Leader. By copy of this letter, we are exercising our option under paragraph 13 of the Agreement to notify your current employer of the terms of the Agreement and your obligations under the Agreement. If you continue to violate the Agreement, we will commence legal proceedings against you and/or any other parties who may have participated in your breach of duty and/or induced you to breach your obligations to Memorial Sales. These remedies include, but are not limited to, immediate injunctive relief, forfeiture of any profits earned as a result of the breach, and attorney's fees incurred in enforcing the Agreement.

      . The plaintiff appealed the ruling on the contract claim to the United States Court of Appeals for the Eleventh Circuit. That court affirmed without opinion. Henry v. SCI Funeral Services of Florida, 180 F.3d 270 (11th Cir.1999).
      We express no opinion on the correctness of the federal court's contract analysis.

      . As the Levin court cited Wright v. Yurko, 446 So.2d 1162 (Fla. 5th DCA 1984), with approval, presumably the cause of action for malicious prosecution continues to exist and would not be barred by the litigation privilege. See Wright, 446 So.2d at 1165.

      . Assuming for purposes of discussion that the Levin litigation privilege ordinarily applies to a presuit demand letter, it would not apply where, as here, the writing of the demand letter constitutes a breach of contract. That is so because the Levin litigation privilege operates to bar causes of action in tort. It does not bar a valid cause of action in contract.


author: COPE, J.

text:
    Fred O. DICKINSON, III, Jacqueline Gipson, Appellants, v. Marla E. GONZALEZ, Appellee.
    Nos. 3D00-927, 3D00-923.
    District Court of Appeal of Florida, Third District.
    Jan. 2, 2003.
    Rehearing, Rehearing En Banc and/or Certification Denied March 7, 2003.

      Dittmar & Hauser and Helen Ann Hau-ser, Coconut Grove; Papy, Weissenborn, Poole & Vraspir and Sherry Weissenborn, for appellants.
    Greenberg Traurig and Elliot H. Scherker, and Brenda K. Supple, Miami; Levine & Finger, for appellee.
    Before COPE, GODERICH and SHEVIN, JJ.
   COPE, J.

This is an appeal from a damages judgment entered against the Florida Department of Highway Safety and Motor Vehicles, and a Highway Patrol Trooper, Jacqueline Gipson, for violation of civil rights under 42 U.S.C. section 1983, negligence, and false arrest. As the Department is not subject to suit under section 1983, we reverse that claim entirely. We reverse the judgment on the remaining claims and remand for a new trial.

I.

Shortly after midnight on February 12, 1995, plaintiff-appellee Marla E. Gonzalez was traveling south bound on Interstate 95, after having attended an office function earlier that evening. By her account, the car in front of her slammed on its brakes. The plaintiff attempted to avoid the car but lost control, spinning and coming to rest facing northbound. The other ear drove away.

City of Miami Police officers first arrived at the location of the accident, but relinquished the accident scene to Florida Highway Patrol (“FHP”) Trooper Stephan Razik, who was the first FHP officer to arrive. According to Trooper Razik, the plaintiff did not know where she was, did not initially recognize her car, and gave him answers that were unrelated to his questions. Trooper Razik administered roadside sobriety tests to the plaintiff, which she passed. Based on her statements, however, he believed that she was under the influence of drugs.

Via radio, Trooper Razik requested that a trained drug recognition evaluator (“DRE”) come to the accident scene. See generally Williams v. State, 710 So.2d 24 (Fla. 3d DCA 1998). FHP Trooper Jacqueline Gipson responded, accompanied Ariel Rojas, a City of Miami Police officer. Trooper Gipson was undergoing training to become a certified DRE. Officer Rojas was conducting the training and supervising her activities.

The plaintiff suffers from bipolar disorder. It is clear from Trooper Gipson’s written report that the plaintiff told the trooper this. The plaintiff told the trooper that she takes a medication for this disorder, Carbamazepin, which she had taken earlier in the evening at 9:00 p.m. The plaintiff had the prescription bottle of medication in her possession.

Trooper Razik told Trooper Gipson that the plaintiff admitted using cocaine earlier in the evening. Trooper Gipson’s report stated that she observed a white residue under the plaintiffs nose. Trooper Gipson did not, however, take a swab of anything that she observed. Trooper Gipson’s report indicated that the plaintiff stated she had two drinks of alcohol earlier in the evening.

Plaintiff testified that she never said she had used cocaine that evening, and in fact had not done so. She also testified that in answers to their questions about alcoholic beverages, she said she had two drinks the Saturday a week ago, and had not consumed alcohol on the evening in question.

Trooper Gipson concluded that the plaintiff was impaired, arrested her for driving under the influence (“DUI”), and took her to jail. Post-arrest chemical testing came up negative for cocaine and alcohol. The tests showed that the only substances she had consumed were the prescription medication, caffeine, and nicotine.

The State nolle prossed the DUI charge. The plaintiff pled no contest to careless driving, a non-criminal traffic offense.

The plaintiff brought suit against the Department of Highway Safety and Motor Vehicles (of which the FHP is a part), and among others, Troopers Gipson and Razik. The plaintiff alleged false arrest and violation of her civil rights under 42 U.S.C. section 1983. She also alleged that the Department was guilty of negligent retention and supervision of Trooper Gipson.

The jury returned a verdict against the Department for $200,000 for false arrest and negligence, and $100,000 for the section 1983 claim. The jury returned a verdict against Trooper Gipson for false arrest in the amount of $50,000 with a punitive damage award of $250,000. The jury found no liability on the part of Trooper Razik, and returned a verdict in his favor.

The Department and Trooper Gipson have appealed.

II.

For the first time on appeal, the Department argues that a state agency cannot be held liable in damages for a violation of 42 U.S.C. section 1983. The Department’s position is correct.

The Florida Highway Patrol is part of the Florida Department of Highway Safety and Motor Vehicles. Fred O. Dickinson, III, is the executive director of the Department. The plaintiff brought suit against Mr. Dickinson solely in his official capacity as head of the Florida Department of Highway Safety and Motor Vehicles.

Neither a state nor its officials acting in their official capacities can be sued for damages under 42 U.S.C. section 1983. Section 1983 provides in part:

Every person who under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an aetion at law, suit in equity, or other proper proceeding for redress.

42 U.S.C. § 1983 (emphasis added).

After considering the language of the statute and its history, the United States Supreme Court has held “that neither a state nor its officials acting in their official capacities are ‘persons’ under § 1983.” Will v. Michigan Dept. of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989); 1 Sheldon H. Nahmod, Civil Rights and Civil Liberties Litigation §§ 1:16, 6:67 (4th ed.2002).

As a matter of law, therefore, there can be no section 1983 claim against the Department or against Mr. Dickinson in his official capacity as Executive Director of the Department. We therefore reverse the section 1983 portion of the judgment against Mr. Dickinson, which in reality is against the Department, and remand with directions to dismiss that claim.

The plaintiff argues that the Department has waived this argument by failing to make it in the trial court. We disagree. Under our eases, it is fundamental error to impose compensatory damages on a nonexistent cause of action. See Security Bank, N.A. v. BellSouth Advertising & Pub. Corp., 679 So.2d 795, 803 (Fla. 3d DCA 1996), approved, 698 So.2d 254 (Fla.1997); Keyes Co. v. Sens, 382 So.2d 1273, 1276 (Fla. 3d DCA 1980).

III.

The Department argues that sovereign immunity bars an award against the Department based on false arrest. The Department points out that under part II of Trianon Park Condominium Ass’n, Inc. v. City of Hialeah, 468 So.2d 912 (Fla.1985), there is sovereign immunity for discretionary decisions to enforce the law. See id. at 919-21.

While under Trianon the discretionary decision whether or not to make an arrest is exempt governmental tort liability, id. at 921, it nonetheless remains true that an arresting officer must have probable cause to make an arrest. The courts which have addressed the point have concluded, “There is no sovereign immunity for false arrest....” Lester v. City of Tavares, 603 So.2d 18, 19 (Fla. 5th DCA 1992); Maybin v. Thompson, 514 So.2d 1129 (Fla. 2d DCA 1987), see also Seguine v. City of Miami, 627 So.2d 14, 18 n. 2 (Fla. 3d DCA 1993).

Similarly, there is no sovereign immunity barrier to making a claim against a governmental agency for negligent retention or supervision. See Willis v. Dade County School Board, 411 So.2d 245, 246 (Fla. 3d DCA 1982). We therefore reject the Department’s arguments on this point.

IV.

The Department and Trooper Gipson both argue that Trooper Gipson’s internal affairs file should not have been introduced into evidence. Trooper Gipson argues alternatively that if the file was properly admitted into evidence, then she was entitled to a bifurcation of the trial because the internal affairs file was not admissible against her. Because these arguments are well taken, we remand for a new trial.

Shortly before trial, the FHP produced Trooper Gipson’s internal affairs file to the plaintiff. This consisted of an extensive disciplinary history between 1990 and 1997, when Trooper Gipson resigned instead of being fired. The file disclosed that the local FHP office had previously tried to fire Trooper Gipson, but the recommendation for termination had been overruled by the Tallahassee headquarters.

The plaintiff called as witnesses four FHP internal affairs officers who testified regarding their various investigations of Trooper Gipson. While Trooper Gipson indeed had a serious disciplinary history, none of her prior infractions had to do with DUI arrests or roadside stops. The plaintiff made Trooper Gipson’s disciplinary history a feature of the case. The Plaintiff used at least half of her lengthy closing argument to discuss Trooper Gipson’s pri- or disciplinary history.

Trooper Gipson’s employment history was offered on the theory that it was relevant to the plaintiffs claim that the Department had been negligent in retaining Trooper Gipson on the force, and in supervising her. The prior employment history of an employee can be considered on such issues if relevant.

The Florida Supreme Court discussed this issue in Island City Flying Service v. General Electric Credit Corp., 585 So.2d 274 (Fla.1991). Island City was a company which provided airport services, such as refueling and storing of aircraft. An employee, Diezel, took an aircraft for an unauthorized joy ride and crashed it. One of General Electric’s claims was that Island City had been negligent in hiring and retaining Diezel on the payroll.

The Florida Supreme Court ruled that there must be a connection and foreseeability between the employee’s employment history and the current tort committed by the employee. The court said:

That type of connection and foreseeability is not present in the instant case. Island City had reprimanded Diezel for failing to ground airplanes when he refueled them, for being late, and for taking off from work without authority. While Diezel had a military criminal record of imprisonment for a drug offense, there is no showing that there was any imprisonment for theft. Further, we do not believe that this record establishes that it was foreseeable that this employee would take a joy ride in an easily identified commercial commuter plane that he had never flown before. Contrary to the finding of the district court of appeal, we find that, based on this record, Island City could not have foreseen Diezel’s theft of this airplane.

Id. at 277.

The plaintiffs underlying claim in this case is that Trooper Gipson arrested her for DUI without probable cause. In order to have a viable claim against the Department for negligent retention and supervision, Trooper Gipson’s employment history would need to contain incidents which would reasonably place the FHP on notice that Trooper Gipson was not competent to properly determine probable cause in a roadside stop. While there were numerous problems in Trooper Gipson’s internal affairs history, her prior problems did not relate to the handling of roadside stops or the determination of probable cause to make an arrest.

The incident in question here occurred on February 12, 1995. The only parts of Trooper Gipson’s internal affairs file which could be relevant would be for incidents which occurred prior to that date.

For the period prior to February 12, 1995, the most serious substantiated internal affairs findings were that in October 1990, Trooper Gipson falsified her attendance reports so as to allow her to be paid for work off duty while also being paid for being on duty. The local office of the FHP recommended that Trooper Gip-son be terminated, but this was overruled by FHP headquarters. The same infraction was repeated in March of 1994, but again did not result in termination.

Other internal affairs findings included that in December 1992, Trooper Gipson was involved in an accident and flaunted a firearm in public. Discipline was imposed. In August 1990, Trooper Gipson was disciplined for speeding 112 miles per hour in her patrol car while not on a call. In September 1990, Trooper Gipson was disciplined for failing to appear at court proceedings without making proper arrangements.

While we do not diminish the seriousness of this misconduct, under Island City these were not violations which related to Trooper Gipson’s conducting of traffic or DUI stops. As in Island City, we fail to see that anything in this disciplinary record would have alerted FHP one way or the other regarding Trooper Gipson’s ability to conduct a traffic stop or DUI investigation.

Further, at the time of the 1995 arrest, the trooper was acting as a trainee under the supervision of a training officer. We therefore conclude that the internal affairs file should not have been admitted into evidence.

As relates to Trooper Gipson herself, we do not see a plausible theory on which any of the disciplinary history would be admissible as similar acts evidence under section 90.404, Florida Statutes. The evidence was in effect an impermissible attack on character. There must be a new trial.

VI.

The defendants challenge several other rulings by the trial court. We see no error in the trial court’s denial of the defendants’ motion for directed verdict.

The defendants contend that they should have been allowed to introduce evidence that the plaintiff pled no contest to the noncriminal offense of reckless driving. Their argument is that while on the stand, the plaintiffs own testimony opened the door on that issue. The trial court did not believe that the plaintiff had opened the door and we see no basis on which to second guess that determination.

Trooper Gipson complains of procedural error with regard to her motion for summary judgment on the basis of qualified immunity. However, we do not understand Trooper Gipson to be arguing on this appeal that she was, in fact, entitled to qualified immunity. That being so, we do not address the issue further.

VI.

For the reasons stated, we reverse the judgment and remand for further proceedings consistent herewith.

      . After the time of this accident investigation, but prior to trial, Gipson and Rojas married.

      . Since Trooper Gipson is being sued in her personal capacity and is a "person" under section 1983, the section 1983 claim against her is permissible. See Hafer v. Melo, 502 U.S. 21, 25, 31, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991); 1 Sheldon H. Nahmod, supra, § 1:15.

      . It was therefore error to admit incidents in Trooper Gipson's internal affairs file occurring after February 12, 1995.

      . If on remand the Department believes that the exclusion of the internal affairs file is fatal to the plaintiff's negligence claim, the Department may file a motion for summary judgment.