IVORY R. BRINSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 2d DCA | 1979-12-12
No. 79-347
RYDER and DANAHY, JJ., concur.
382 So. 2d 322 Florida District Court of Appeal, Second District (1979) Caution
Cited by 10 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.


Holding

The court held that a statement against penal interest made by an unavailable declarant is admissible under the declaration against interest exception to the hearsay rule.


Headnotes

[1] A statement against penal interest may be admissible under the declaration against interest exception to the hearsay rule if the declarant is unavailable and the statemen…

[2] A witness who invokes the Fifth Amendment privilege against self-incrimination is considered unavailable for purposes of the declaration against interest exception to the…

Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.

Join FLexlaw to unlock all legal intelligence

Facts & Procedural History

The appellant was convicted of robbery. She sought to introduce testimony that an accomplice, who had pled guilty and invoked his Fifth Amendment righ…

The full statement of facts, procedural history, and disposition for this case are member content.

Join FLexlaw to unlock all legal intelligence

© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.


Opinion of the Court
BOARDMAN, Acting Chief Judge.

BOARDMAN, Acting Chief Judge.

Ivory Brinson appeals her conviction for robbery, contending that the trial court erred in not allowing her to introduce hearsay testimony under the declaration against interest exception to the hearsay rule. We agree and reverse.

On July 31,1978, at approximately 1:30 a. m., Ambrose Liming was sitting on a bench in a park in downtown St. Petersburg, when a white male and a black female sat down on either side of him. Suddenly Liming was struck on the back of the head. Liming, who was robbed while unconscious from the blow, was unable to identify who struck him because the blow came from behind. However, Robert Brown testified at trial that he was sitting on a nearby bench when the attack occurred and that the black “male” beside Liming had struck the actual blow. Brown also testified that the same black “male” had then searched through Liming’s pockets while Liming lay on the ground.

Appellant, a black female, and John Townsend, a white male, were arrested by a St. Petersburg police officer shortly after the attack on Liming, primarily upon the basis of Brown’s description of the culprits. Prior to appellant’s trial Townsend pled guilty. At trial, appellant sought to call Townsend as a defense witness, but Townsend pled the Fifth Amendment and refused to testify. The trial court correctly sustained Townsend’s objection to testifying because Townsend had not yet been sentenced and his testimony could have resulted in the imposition of a more severe sentence than would otherwise have been imposed. Appellant then attempted to have Officer Julien of the St. Petersburg Police Department testify that he had questioned Townsend shortly after the latter’s arrest, and that Townsend had informed Julien that he had struck Liming. The trial court, however, considered Julien’s testimony to be hearsay and refused to admit it. At the conclusion of the trial, appellant was convicted of robbery as charged.

The general rule against the admission of hearsay statements is that all out-of-court statements offered for the truth of the matter asserted are inadmissible. See Collins v. State, 65 So. 2d 61 (Fla. 1953); 13 Fla.Jur. Evidence § 209 (1957). The-primary purpose of the exclusion of hearsay testimony is that the opposing party has no opportunity to cross-examine the out-of-court declarant, and is thereby deprived of the opportunity to expose deceit and errors in the statement. Habig v. Bas-tían, 117 Fla. 864, 158 So. 508 (1935); 5 J. Wigmore, Evidence § 1362 (Chadbourn rev. ed. 1974).

Even without the opportunity to cross-examine, however, some out-of-court statements are simply so inherently reliable that courts have created specific exceptions to the hearsay rule and admitted certain classes of out-of-court statements into evidence. Thus, the general rule of exclusion of hearsay has been undermined to a considerable extent by a substantial number of exceptions. See, e. g., Fed.R.Evid. 803, 804.

One of the exceptions to the hearsay rule is the declaration against interest. Baker v. State, 336 So. 2d 364 (Fla.1976). It has long been established that an out-of-court declaration may be admitted into evidence, even for the truth of the matter asserted, if two requirements are met. First, the out-of-court declarant must be unavailable to testify. Second, the out-of-court declaration must be contrary to the “interests” of the declarant. We find the first requirement was met here because the trial court sustained Townsend’s assertion of a Fifth Amendment privilege, thus making Townsend “unavailable.” See People v. Brown, 26 N.Y.2d 88, 308 N.Y.S.2d 825, 257 N.E. 2d 16 (1970). Accordingly, the only question remaining is whether Townsend’s statement against his penal interest satisfies the second requirement.

Although the admission against interest exception was initially limited to statements contrary to the declarant’s pecuniary or proprietary interests, the Florida Supreme Court has expanded the exception to include statements against penal interest. Baker v. State, supra.

We hold, therefore, that the out-of-court statement by Townsend is within the declaration against interest exception to the hearsay rule and Officer Julien should have been allowed to testify concerning it. Moreover, because this statement tends to cast doubt upon the eyewitness account given by Rob ert Brown, it cannot be said that the trial court’s ruling constitutes harmless error. Accordingly, we REVERSE and REMAND with instructions to grant appellant a new trial.

RYDER and DANAHY, JJ., concur. . We are aware that Section 90.804(2)(c), Florida Statutes (1977), currently modifies the ruling in Baker v. State, 336 So. 2d 364 (Fla. 1976) by requiring outside corroborating circumstances indicating the truthfulness of the statement. This statute was not in effect, however, until after the trial court’s ruling in this case. Accordingly, the statute is not applicable to the present appeal.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Sikes v. Seaboard Coast Line R.R. Co., 429 So. 2d 1216 (Fla. 1st DCA 1983)
    …y to cross-examine' the out-of-court declarant — in this case the individuals) who prepared the handbook — in order to expose errors in the writing or statement. See Law Revision Council Note-1976, 6C F.S.A. § 90.802 at 261 (1979); Brinson v. State, 382 So. 2d 322, 324 (Fla. 2d DCA 1979). Thus, the trustworthiness of the handbook cannot be ascertained. SCL impliedly suggests that the pamphlet is trustworthy, because it is self-authenticating. That the handbook is an official book, pamphlet, or other publicat…
  • Henyard v. State, 992 So. 2d 120 (Fla. 2008)
    …, even for the truth of the matter asserted, if two requirements are met. First, the out-of-court declarant must be unavailable to testify. Second, the out-of-court declaration must be contrary to the "interests” of the declarant. Brinson v. State, 382 So. 2d 322, 324 (Fla. 2d DCA 1979). Brinson has since been superseded by statute. Section 90.804(2)(c), Florida Statutes (1997), modified the ruling in Baker by requiring outside corroborating circumstances indicating the truthfulness of the statement. Brinson…
  • Peninsular Fire Ins. Co. v. Wells, 438 So. 2d 46 (Fla. 1st DCA 1983)
    …thin this exception. Peninsular correctly contends that the above statute encompasses declarations against penal interest as well as those against pecuniary and proprietary interests. See Baker v. State, 336 So. 2d 364 (Fla.1976); Brinson v. State, 382 So. 2d 322 (Fla. 2nd DCA 1979). However, we do not agree that Singleton’s statement qualifies as a declaration against his penal interest within the meaning of the above provision of the Evidence Code. We do not believe that it can be fairly said that a person…

Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.

Join FLexlaw to unlock all legal intelligence

Authorities Cited

Full citator, related cases, and AI research tools

Open in FLexlaw