Heading into his April 2011 trial on charges of having sex with a 15-year-old student, former Gulf Coast High School band director Robert Hamberg expected his wife to be left out of the fray.
But with a slip-up by Hamberg on the stand, Diane became fair game at trial. Jurors learned the couple met in the mid-1980s when he was a band teacher in Georgia and she was a high school student, showing it wasn't the first time Hamberg had been linked to a former pupil.
"The moment they heard that," Hamberg's lawyer Michael Ufferman said Tuesday, "he had no chance of winning."
On appeal Tuesday in Lakeland, lawyers for both sides spent all of oral arguments debating whether jurors should have heard about Diane and how she met her husband. Hamberg's defense says a judge erred by allowing the testimony, while an assistant attorney general representing the state said jurors needed to hear about Diane to correct Hamberg's own testimony.
At issue is Collier Circuit Judge Fred Hardt's ruling that Hamberg "opened the door" to testimony about his wife while on the stand.
Hardt ruled before the trial that prosecutors couldn't ask Hamberg about meeting his wife because no evidence had been presented of an improper sexual relationship while in Georgia. Then, under cross examination at trial, Hamberg testified, "I was naive, and although I'd heard about teachers putting themselves in dangerous positions, I never thought it would happen to me…"
At that point, prosecutors said, Hamberg "opened the door," meaning previously inadmissible testimony about Diane was fair game because he misled jurors. Hardt agreed, ruling Hamberg had previously spoken about leaving Georgia because of whispers around town about the relationship with his wife, making his comments about being naive misleading.
Ufferman contends prosecutors never established a need to correct the truthfulness of Hamberg's statement, saying it had little to no impact on the prosecution's case. In turn, showing jurors that Hamberg had previously been linked to a student, albeit a former one, was "extremely prejudicial," Ufferman said.
"There was no false impression here," Ufferman said.
Assistant attorney general Marilyn Beccue, arguing for the state, hammered home that Hamberg couldn't be naive given his own testimony that he left Georgia because "it was just uncomfortable."
"He knew that if he then had contact or relationships that were close with other students, that those same kind of speculations and rumors would occur," Beccue said.
Six other issues raised on appeal by Ufferman weren't addressed during oral arguments. They include whether Hamberg's ex-wife should have been allowed to testify about Hamberg's ability to physically French kiss and perform oral sex, and whether defense lawyers should have been allowed to divulge the victim's sexual history to prove an ulterior motive for accusing Hamberg.
The 2nd District Court of Appeals judges gave little indication of their opinions about the case, mostly asking about factual details and prior hearings. No timetable has been set for a ruling.