ARMANDO SILVEIRA-HERNANDEZ, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE

Fla. 3d DCA | 1986-10-14
No. 84-2626
Before NESBITT, BASKIN and DANIEL S: PEARSON, JJ.
495 So. 2d 914 Florida District Court of Appeal, Third District (1986) Caution
Cited by 8 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.

Synopsis

Silveira-Hernandez appealed his convictions for aggravated battery, aggravated assault, battery, and unlawful possession of a firearm. The court affirmed, finding that while an investigating officer's hearsay testimony about the victim's account was erroneously admitted, the error was harmless because the officer's account actually impeached rather than bolstered the victim's in-trial testimony, benefiting the defendant.


Holding

The court held that the first claimed error was not preserved for review due to lack of proper proffer, the second error was nonexistent, and the third error—admission of hearsay testimony—although clearly erroneous, was harmless because the officer's account contradicted the victim's trial testimony and thus impeached rather than bolstered it, benefiting the defendant.


Headnotes

[1] A defendant's claim that the trial court unduly restricted cross-examination is not preserved for review without an appropriate proffer of the intended testimony.

[2] A trial court's refusal to reinstruct the jury is not an error.

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Key Quotes

“an investigating officer's testimony relating an alleged victim's version of how the crime occurred is pure and simple hearsay even though the officer has interviewed the victim at the scene of the crime and shortly after its commission”

Establishes the core legal principle that officer testimony about victim statements is hearsay regardless of when the interview occurred

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Facts & Procedural History

Silveira-Hernandez was convicted of aggravated battery, aggravated assault, battery, and unlawful possession of a firearm while engaged in the commiss…

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Opinion of the Court
DANIEL S. PEARSON, Judge.

DANIEL S. PEARSON, Judge.

The defendant, appealing from convictions for aggravated 'battery, aggravated assault, battery, and unlawful possession of a firearm while engaged in the commission of á criminal offense, raises three points on appeal. We find that the claimed error that the trial court unduly restricted the defendant’s cross-examination of one of the victims was not preserved for review by an appropriate proffer of the intended testimony. We find no error whatsoever in the trial courtls refusal to reinstruct the jury. Finally, we find that the admission of certain hearsay testimony, although clearly error, was, in the circumstances of this case, harmless. Only this last point merits further discussion.

It is obvious to us from the trial court’s ruling that permitted the prosecutor to elicit the challenged hearsay testimony and from the State’s argument on appeal that we have not sufficiently made clear that an investigating officer’s testimony relating an alleged victim’s version of how the crime occurred is pure and simple hearsay even though the officer has interviewed the victim at the scene of the crime and shortly after its commission.1 Such testimony is admissible neither on the trial court’s theory that the officer "was there” nor on the State’s theory that the testimony is relevant to show the officer’s course of action, that is, that he interviewed the supposed victim. If a testifying witness’s presence upon hearing the declarant speak were justification to admit a narrative of the declarant’s statement despite the rule precluding hearsay, there would be no rule precluding hearsay. Likewise, if testimony concerning the content of witness interviews were admitted to prove the irrelevant fact that the police conducted them, see Postell v. State, 398 So. 2d 851, 855 n. 7 (Fla. 3d DCA) (“the arrest of the defendant is not an element of the crime to be proved, and proof concerning the fact that it occurred, the circumstances of it, and the reasons for it is ordinarily irrelevant”), rev. denied, 411 So. 2d 384 (Fla.1981), the rule precluding hearsay would, at least in most criminal cases, be destroyed.

Nevertheless, because of the fortuity that the officer’s testimony about what the victim told him differed in many material respects from the victim’s in-trial version of how the crime occurred, it had the effect of impeaching rather than bolstering the victim’s testimony. Thus, the trial court’s error was helpful rather than harmful to the defendant, as, indeed, defense counsel himself recognized when, during closing argument, he deftly exploited the differences in the two accounts of the crime.

Affirmed.

. We reject entirely the State's suggestion that the alleged victim’s statement to the officer was within the spontaneous statement or excited utterance exceptions to the hearsay rule, as it is evident that the victim had more than ample time to reflect and deliberate on his story. See § 90.803(1), (2), Fla.Stat. (1983); Lyles v. State, 412 So. 2d 458 (Fla. 2d DCA 1982). Moreover, the State concedes that the testimony was not admissible to rebut a charge that the victim's trial testimony was a recent fabrication, § 90.-801(2)(b), or to prove identification, § 90.-801(2)(c).


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Citator

Cited By

  • Wright v. State, 510 So. 2d 1159 (Fla. 3d DCA 1987)
    …the error was harmless because the officer’s testimony impeached rather than [*1160] bolstered the victim’s testimony, and thus, under the standards of State v. DiGuilio, 491 So. 2d 1129 (Fla.1986), no prejudice appears. Silveira-Hernandez v. State, 495 So. 2d 914 (Fla. 3d DCA 1986). Appellant’s other point lacks merit. Affirmed.…
  • Fernandez-Carballo v. State, 590 So. 2d 1004 (Fla. 3d DCA 1991)
    …e properly precluded the defendant from eliciting any such oral statements as the same constituted inadmissible hearsay. See A. McD. v. State, 422 So. 2d 336, 337 (Fla. 3d DCA 1978); § 90.104(1)(b), Fla.Stat. (1989); cf. Silveira-Hernandez v. State, 495 So. 2d 914 (Fla. 3d DCA 1986). Second, we reject the defendant’s argument that the trial court erred in denying the defendant’s motion for a continuance or a mistrial when a police officer, subpoenaed by the defendant for trial, failed to honor the subpoena a…
  • Shellman Peterson v. State, 505 So. 2d 16 (Fla. 2d DCA 1987)
    …irearm upon a holding that the claimed error that the trial court unduly restricted the defendant’s cross-examination of his accomplice was not preserved for review by an appropriate proffer of the intended testimony. See Silveira-Hemandez v. State, 495 So. 2d 914 (Fla. 3d DCA 1986); A. McD. v. State, 422 So. 2d 336 (Fla. 3d DCA 1982); [*17] Ketrow v. State, 414 So. 2d 298 (Fla. 2d DCA 1982). Affirmed.…

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