LANZAFANE HENDRIETH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 1st DCA | 1986-02-07
No. BD-274
ERVIN and WIGGINTON, JJ., concur.
483 So. 2d 768 Florida District Court of Appeal, First District (1986) Caution
Cited by 22 cases

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Synopsis

Hendrieth appeals his convictions for burglary and petit theft, challenging the admission of a police officer's testimony regarding a witness's prior consistent statement describing suspects seen near the crime scene. The court affirms, finding the erroneous admission harmless given the identical unobjectionable direct testimony and strong physical evidence.


Holding

The admission of the officer's testimony regarding the prior consistent statement was erroneous because it was offered without impeachment of the witness and did not fall within any applicable hearsay exception. However, the error was harmless because Campbell's identical unobjectionable direct testimony remained, and strong physical evidence—Hendrieth's immediate apprehension with stolen items—established guilt regardless.


Headnotes

[1] Prior consistent statements are generally inadmissible absent a showing of recent fabrication or other impeachment of the witness's credibility.

[2] A police report, which is a synopsis made by an officer, is not a memorandum or record made by a witness for purposes of the hearsay exception for past recollection recor…

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Key Quotes

“Prior consistent statements are generally inadmissible absent a showing of recent fabrication or other reason for the witness's lack of credibility”

Establishes the general rule prohibiting prior consistent statements without impeachment of the witness

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Facts & Procedural History

Christopher Campbell, a neighborhood resident, called police after seeing two black men walking around homes on his street. Campbell testified at tria…

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Opinion of the Court
McCORD, GUYTE P., Jr. (Ret.), Associate Judge.

McCORD, GUYTE P., Jr. (Ret.), Associate Judge.

Hendrieth appeals from convictions for burglary of a conveyance and of a dwelling, and two counts of petit theft. He raises three points on appeal, only one of which merits discussion. We affirm.

Christopher Campbell, a resident of the victimized neighborhood, was interviewed by the police on the night of Hendrieth’s arrest. He told them that he had seen two black men walking around the homes along his street, prompting him to call the police. This information was synopsized by the police in their report of the incident.

Campbell repeated his story at trial on direct examination by the State. He was not able to make an in-court identification of Hendrieth as one of the men he saw on the night of the crimes, but stated that he could have done so at that time. The State then called the officer who had interviewed Campbell and asked him to relate the information he had received, as reflected in the police report. The defense objected to the testimony as a prior consistent statement, impermissible because Campbell’s direct testimony had not been impeached. The court allowed the officer to answer, ruling that the police report was “a more accurate statement” of Campbell’s observations. The officer proceeded to testify, not that Campbell had identified Hendrieth, but that he had related seeing “two black men prowling around the neighborhood.”

The admission of this testimony was error. Prior consistent statements are generally inadmissible absent a showing of recent fabrication or other reason for the witness’s lack of credibility, Demps v. State, 462 So. 2d 1074 (Fla.1985), and the record reflects no impeachment whatever of Campbell’s direct testimony.

Prior consistent statements may also be admissible under certain exceptions to the hearsay rule, Ehrhardt, Florida Evidence, 2d ed., § 801.8, but no exception is applicable in this case. Section 90.803(5), Florida Statutes (1983), provides that “a memorandum or record concerning a matter about which a witness once had knowledge, but now has insufficient recollection to enable him to testify fully and accurately, shown to have been made by the witness when the matter was fresh in his memory and to reflect that knowledge correctly” is not hearsay. The report from which the officer testified as to what Campbell told him was not “made by the witness,” however, but was a synopsis made by the officer. Police reports themselves are specifically excluded from the exception for public records and reports, Section 90.803(8), Florida Statutes (1983).

The State next argues that the police may testify to an out-of-court identification when a witness is unable to do so, citing State v. Freber, 366 So. 2d 426 (Fla.1978). However, the officer’s testimony herein did not reflect an on-the-scene identification by Campbell, but merely echoed his direct testimony that he saw “two black men” in the neighborhood. Therefore, Fre-ber does not operate to validate the testimony.

The proper inquiry in the face of this error is whether, but for it, it is likely that the result below would have been different. Teffeteller v. State, 439 So. 2d 840, 843 (Fla.1983) citing Palmes v. State, 397 So. 2d 648, 653 (Fla.) cert. den. 454 U.S. 882, 102 S.Ct. 369, 70 L.Ed.2d 195 (1981). If the impermissible testimony is eliminated, Campbell’s identical, unobjectionable testimony remains. Further, evidence was presented that Hendrieth was apprehended on the street where the crimes occurred, almost immediately following Campbell’s summons of the police, in the possession of the items identified by the victims as miss ing. Therefore, we find that without the erroneous admission of the officer’s testimony, the result would not have been different and the error was harmless.

AFFIRMED.

ERVIN and WIGGINTON, JJ., concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By (11 total)

  • Swafford v. State, 533 So. 2d 270 (Fla. 1988)
    …was not hearsay because it came within the exception for statements of identification under subsection 90.-801(2)(c), Florida Statutes (1985). This position is erroneous because a description is not an identification. See, e.g., Hendrieth v. State, 483 So. 2d 768, 769 (Fla. 1st DCA 1986). An “identification of a person after perceiving him,” subsection 90.801(2)(c), is a designation or reference to a particular person or his or her photograph and a statement that the person identified is the same as the pers…
  • Jackson v. State, 498 So. 2d 906 (Fla. 1986)
    …s was improper. Again, we agree. It is well settled that a witness’s prior consistent statements are generally inadmissible to corroborate that witness’s testimony. [*910] See, e.g., Van Gallon v. State, 50 So. 2d 882 (Fla.1951); Hendrieth v. State, 483 So. 2d 768, 769 (Fla. 1st DCA 1986); McRae v. State, 383 So. 2d 289, 292 (Fla. 2d DCA 1980). An exception to the rule is recognized, however, when such statements are “introduced to rebut an express or implied charge against the witness of improper influence,…
  • Rogers v. State, 782 So. 2d 373 (Fla. 2001)
    …olice reports regarding criminal matters are traditionally excluded from the public records hearsay exception and thus are not admissible as substantive evidence in criminal trials. See § 90.803(8), Fla. State. (1997); see, e.g., Hendrieth v. State, 483 So. 2d 768, 769 (Fla. 1st DCA 1986) (police report not admissible against defendant under section 90.803(8)). Therefore, the State alleges that as a result, Rogers’ claim must fail. However, withheld information, even if not itself admissible, can be material…

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