CURTIS FEIMSTER, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court held that the trial court did not err in admitting cumulative testimony or in giving a jury instruction on flight, and that the instruction did not improperly comment on the evidence.
[1] Opinion evidence is harmless error when it is merely cumulative of other competent evidence admitted at trial.
[2] A jury may be instructed on flight when evidence clearly establishes that an accused fled the vicinity of a crime or took actions indicating an intent to avoid detection…
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Join FLexlaw to unlock all legal intelligenceThe defendant was convicted of two counts of second-degree murder and one count of attempted first-degree murder. He appealed, arguing the trial court…
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PER CURIAM.
Feimster appeals from his convictions of and sentences for two counts of second-degree murder and one count of attempted first-degree murder. We affirm.
The first contention made on appeal is that the trial court erred in allowing the testimony of the arresting officer that in his opinion Feimster’s statement that the victims had “put their guns up” meant that they had put their guns away. Feimster acknowledged in his statement to the police, which was admitted into evidence, that the victims had “put their guns away” before he began shooting. Therefore, the opinion evidence of the police officer was merely cumulative. Consequently, even if the opinion evidence was improperly admitted by the trial court, we find that it was harmless error. See Connolly v. State, 350 So. 2d 36 (Fla.3d DCA 1977) (doctor’s written opinion on defendant’s sanity, which was submitted into evidence in error, was merely cumulative of other competent evidence and thus, harmless error), cert. denied, 359 So. 2d 1212 (Fla.1978).
Feimster’s second claim is that it was error to give a jury instruction on his flight from the vicinity of the crime. We disagree. The rule is that “a jury can be instructed on flight when the evidence clearly establishes that an accused fled the vicinity of a crime or did anything indicating an intent to avoid detection or capture.” Shively v. State, 474 So. 2d 352, 353 (Fla. 5th DCA 1985); see also Bradley v. State, 468 So. 2d 378 (Fla. 1st DCA 1985). Feimster’s flight from the scene and disposal of his weapon in the process, besides tending to rebut his contention that he fled because he feared for his life, was evidence sufficient to support the jury instruction.
We also cannot agree with Feim-ster’s contention that the court’s instruction to the jury constituted an improper comment on the evidence adduced at trial. The instruction specifically left to the jury the matter of the weight to be accorded the evidence of flight. See Haywood v. State, 466 So. 2d 424 (Fla. 4th DCA 1985), aff'd, 482 So. 2d 1377 (Fla.1986). Accordingly, the judgments of conviction are
Affirmed.
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Green v. State, 571 So. 2d 571 (Fla. 3d DCA 1990)…impermissible comment on the evidence, but merely informed the jury that they could consider flight as circumstantial evidence of guilt. Whitfield v. State, 452 So. 2d 548 (Fla.1984); Proffitt v. State, 315 So. 2d 461 (Fla.1975); Feimster v. State, 491 So. 2d 321 (Fla. 3d DCA 1986); Haywood v. State, 466 So. 2d 424 (Fla. 4th DCA 1985). Therefore, we hereby reverse that portion of the order appealed requiring restitution and remand for further proceedings [*574] consistent herewith, m all other respects the…
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Payne v. State, 541 So. 2d 699 (Fla. 1st DCA 1989)…t inside the door talking on the telephone. A flight instruction can be given “when the evidence clearly establishes that an accused fled the vicinity or a crime or did anything indicating an intent to avoid detection or capture.” Feimster v. State, 491 So. 2d 321 (Fla. 3d DCA 1986), rev. denied 492 So. 2d 1331 (Fla.1986). The acts of locking the window and door are not reasonably characterized as evading prosecution or avoiding (as opposed to momentarily delaying). capture. Bradley v. State, 468 So. 2d 378 (…
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Stanley v. State, 560 So. 2d 1269 (Fla. 3d DCA 1990)…t 704 n. 7 (citing State v. Smith, 240 So. 2d 807 (Fla.1970)). In the instant case, the asserted error was fundamental, and therefore may be reviewed. Sufficient evidence was presented to warrant a jury instruction on flight. See Feimster v. State, 491 So. 2d 321 (Fla. 3d DCA 1986). However, the jury instruction on flight which was eventually given by the trial court is improper. The part of the instruction which states that “as this tends to show the probability of the defendant being guilty” implies that i…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Bradley v. State, 468 So. 2d 378 (Fla. 1st DCA 1985)
- Haywood v. State, 466 So. 2d 424 (Fla. 4th DCA 1985)
- Shively v. State, 474 So. 2d 352 (Fla. 5th DCA 1985)
- Haywood v. State, 482 So. 2d 1377 (Fla. 1986)
- Connolly v. State, 350 So. 2d 36 (Fla. 3d DCA 1977)