BENNIE FULMORE A/K/A BENNIE JENKINS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that allowing hearsay evidence in a photographic lineup and allowing a rebuttal witness without a Richardson hearing constituted reversible error.
The defendant was convicted of armed robbery, shooting within an occupied building, and discharging a firearm in public. The trial court allowed hears…
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GLICKSTEIN, Judge.
This is an appeal from a judgment and sentence following a jury’s determination that the defendant was guilty of armed robbery, shooting within an occupied building and discharging a firearm in public. We reverse and remand for new trial because two of the errors asserted by appellant have merit.
First, allowing hearsay evidence by an officer who testified that he received “certain information” which led him to place appellant’s photograph in the second photographic lineup was harmful error. Unlike the fleeting reference in Barnes v. State, 470 So. 2d 851 (Fla. 1st DCA 1985), this error was carved in stone on three separate occasions, depriving the accused of his constitutional right to confrontation. See Rolle v. State, 416 So. 2d 51 (Fla. 4th DCA 1982); Molina v. State, 406 So. 2d 57 (Fla. 3d DCA 1981); Postell v. State, 398 So. 2d 851 (Fla. 3d DCA 1981).
Second, the trial court allowed Deputy Janson to testify as a rebuttal witness, notwithstanding the absence of his name from the witness list, without conducting a Richardson hearing as requested by the defendant. While clearly not a basis for new trial, we call the trial court’s attention to its failure to fulfill the writing requirements of Section 39.111(6), Florida Statutes (1983).
HERSEY, C.J., and HURLEY, J., concur.
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Smith v. State, 554 So. 2d 552 (Fla. 4th DCA 1989)…the beating, appellant claims that it was harmful in that the testimony contradicted his defense that a fourth person was involved and committed the offense. In Harris, as in Postell v. State, 398 So. 2d 851 (Fla. 3d DCA 1981), and Fulmore v. State, 483 So. 2d 765 (Fla. 4th DCA 1986), the hearsay statement was specific in its identification of the defendant as the guilty party. In this case there is no identification of appellant, just the presence of three men beating someone up. While I am of the opinion th…
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Pisegna v. State, 488 So. 2d 624 (Fla. 4th DCA 1986)…name on the requested witness list. A trial court must conduct a Richardson hearing where the state proffers a rebuttal witness whose name the prosecutor failed to insert on the witness list requested by the defendant in discovery. Fulmore v. State, 483 So. 2d 765 (Fla. 4th DCA 1986). See generally Richardson v. State, 246 So. 2d 771 (Fla.1971). This requirement extends to rebuttal witnesses which the state’s attorney should “reasonably anticipate” that he will need to call. Lucas v. State, 376 So. 2d 1149, 1…
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Ellis Jones and Marcus Jerome McGill v. State, 555 So. 2d 406 (Fla. 3d DCA 1989)…is reversed for a new trial because of the clearly harmful and impermissible testimony of the investigating detective that he included Jones’s photo in a photographic display “[bjecause I thought he was a suspect in the case.” See Fulmore v. State, 483 So. 2d 765 (Fla. 4th DCA [*407] 1986); Molina v. State, 406 So. 2d 57 (Fla. 3d DCA 1981). See generally Postell v. State, 398 So. 2d 851 (Fla. 3d DCA), review denied, 411 So. 2d 384 (Fla.1981). Affirmed in part, reversed in part.…
Authorities Cited
- Postell v. State, 398 So. 2d 851 (Fla. 3d DCA 1981)
- Molina v. State, 406 So. 2d 57 (Fla. 3d DCA 1981)
- Barnes v. State, 470 So. 2d 851 (Fla. 1st DCA 1985)
- Marguerite v. Campbell, 416 So. 2d 51 (Fla. 4th DCA 1982)
- Rolle v. State, 416 So. 2d 51 (Fla. 4th DCA 1982)