Opinion
No. 89-1446.
February 12, 1991. Rehearing Denied March 19, 1991.
Appeal from the Circuit Court, Dade County, Richard V. Margolius, J.
Bennett H. Brummer, Public Defender, and Elliot H. Scherker, Asst. Public Defender, for appellant.
Robert A. Butterworth, Atty. Gen., and Julie S. Thornton, Asst. Atty. Gen., for appellee.
Before NESBITT, JORGENSON and GERSTEN, JJ.
ON MOTION FOR REHEARING
We grant the state's motion for rehearing, withdraw the opinion previously issued in this case, and substitute the following opinion in its place.
Charles Paul appeals from a final judgment of conviction and sentence for second-degree murder with a firearm. We affirm.
On appeal, Paul contends that the trial court impermissibly thwarted his cross-examination of an adverse witness and denied him his constitutional right to confront that witness. We disagree. The statements Paul sought to elicit went beyond the scope of direct examination and would have tended to bolster his defense theory. As the theory was a defensive matter, Paul should have developed it by calling his own witness. See Penn v. State, 574 So.2d 1079 (Fla. 1991); Steinhorst v. State, 412 So.2d 332 (Fla. 1982). Because we hold that the trial court properly restricted cross-examination under Penn, we do not reach the state's alternative rationale for excluding the testimony, namely that the statement sought to be elicited was rank hearsay that did not fall within any of the exceptions to the hearsay rule.
As to Paul's remaining points on appeal, we find no merit.
Affirmed.