WILLIE JAMES MORGAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court affirmed a conviction for robbery but vacated the sentence and remanded for resentencing because the admission of double hearsay testimony, while challenged, was deemed admissible to explain the detective's actions and not to prove the truth of the matter asserted, especially given other substantial evidence of guilt.
The court held that the admission of double hearsay testimony was proper to explain the detective's actions and not to prove the truth of the matter asserted, especially since other substantial evidence linked the defendant to the crime.
[1] Hearsay testimony is admissible on redirect examination to qualify, explain, or limit cross-examination testimony.
[2] Hearsay evidence offered to explain why a defendant was questioned, rather than to prove the truth of the matter asserted, is admissible when the defendant's attorney ope…
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Join FLexlaw to unlock all legal intelligenceThe defendant was convicted of robbery. During the trial, a detective testified about information received from a confidential informant, which the de…
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FRANK, Judge.
Willie James Morgan has appealed from his judgment of conviction and sentence for robbery. We affirm the conviction but vacate the sentence and remand for resentencing.
Morgan has challenged the admission of a detective’s testimony disclosing information received from a confidential informant. The detective testified that his source, Eason, told him that another man, Wilson, had told Eason that he, Wilson, and Morgan had committed the crime. Morgan’s attorney objected on the ground that the testimony was “double hearsay.”
As a general rule, “testimony is admissible on redirect which tends to qualify, explain, or limit cross-examination testimony.” Tompkins v. State, 502 So. 2d 415, 419 (Fla.1986).
Applying that principle in the present context, the trial judge properly admitted the detective’s testimony in the light of the critical fact that Morgan’s attorney asked questions during his recross examination of the detective that opened the door for the prosecutor to elicit clarification on further redirect. Morgan’s attorney attempted to establish through examination of the detective that he had picked Morgan up for questioning — even prior to his identification by the victim — based upon information given the detective by another individual. The attorney assumed the informant was a person other than Eason, whose credibility he hoped to impeach later in the trial. The detective’s response, however, was not as Morgan’s attorney had anticipated; it revealed that Eason was the confidential informant. Upon the further redirect examination, the prosecutor asked the detective to state the information Ea-son had provided which caused him to apprehend Morgan. The hearsay testimony was merely to explain why the detective had questioned Morgan and not to prove the truth of the statement that Morgan had committed the robbery.
The trial court pointedly instructed the jury that the evidence was to be considered only for that limited purpose.
Although the defendant has argued that our decision in Spears v. State, 301 So. 2d 24 (Fla. 2d DCA 1974), precludes the result we now reach, we find Spears distinguishable. In that case there was no showing that the contested hearsay was offered for any purpose other than to prove the truth of its content.
Furthermore, in Spears the hearsay testimony was the only testimony linking the defendant to the crime. Here, by contrast, the evidence of Morgan’s involvement in the burglary was substantial and included both in-court and out-of-court identification by the victim. In short, “a conviction could have been had without the statement at issue.” Hinton v. State, 347 So. 2d 1079, 1081 (Fla. 3d DCA), cert. denied, 354 So. 2d 981 (1977). Morgan has not demonstrated reversible error. Morgan has, however, raised meritorious contentions in attacking his sentence.
Rule 3.7012(d)(5)(c) allows juvenile dispositions to be included in prior record if they are “convictions” as described in Rule 3.701(d)(2) but only if they occurred “within three (3) years of the commission of the primary offense.” The trial court scored as “prior record” a juvenile determination that Morgan had sold marijuana in 1972, but an adjudication of guilt was withheld. For scoresheet purposes only, the conduct involving marijuana was a juvenile “conviction” in 1972. Fla.R.Crim.P. 3.701(d)(2). That conviction, however, was too remote from the primary offense to be scored.
Furthermore, the trial court’s departure from the guidelines recommended sentence was based upon invalid reasons. The first reason — psychological trauma to the victim, can constitute a ground for departure in some instances, see State v. Rousseau, 509 So. 2d 281 (Fla.1987), but not here; there was no evidence that the victim suffered any trauma as a direct result of the crime even though the victim may have been put in fear as a result of post-trial events.
As a second basis for departure the trial court referred to the fact that the “crime was committed by a man against a woman who was working alone at her lawful occupation at 12:44 AM in the morning.” The supreme court has recently spoken in connection with this all-too-common scene in Mathis v. State, 515 So. 2d 214, 216 (Fla.1987): “The ... reason, that the victims were female and working alone at night, is invalid because the victims’ defenselessness is common to nearly any armed robbery. Nor is the gender of the victims, in and of itself, an appropriate reason for departure.”
The trial court’s final two departure reasons expressed nothing more than the trial court’s disagreement with the sufficiency of the guidelines sentence — an invalid ground for departure. Scott v. State, 508 So. 2d 335 (Fla.1987).
We affirm Morgan’s conviction but vacate his sentence and remand for resentencing within the guidelines.
SCHEB, A.C.J., and CAMPBELL, J., concur.
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State v. Bradford, 658 So. 2d 572 (Fla. 5th DCA 1995)…g otherwise inadmissible evidence as rebuttal when the other side has opened the door. See, e.g., Adamson v. State, 569 So. 2d 495 (Fla. 3d DCA 1990) (defendant’s cross-examination opened the door to otherwise inadmissible hearsay); Morgan v. State, 520 So. 2d 105 (Fla. 2d DCA 1988) (testimony over “double hearsay” objection not error in light of fact that defendant’s attorney asked questions which opened the door for prosecutor). We therefore grant the petition for certio-rari, quash the order excluding the…
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Soloway v. Benson, 540 So. 2d 906 (Fla. 2d DCA 1989)…titled to present testimony which would qualify, explain or limit facts brought out by appellees on cross-examination. Tompkins v. State, 502 So. 2d 415, 419 (Fla.1986); cert. denied, — U.S.-, 107 S.Ct. 3277, 97 L.Ed.2d. 781 (1987); Morgan v. State, 520 So. 2d 105, 106 (Fla. 2d DCA 1988); Dowell v. State, 516 So. 2d 271, 274 (Fla. 2d DCA 1987), review denied, 525 So. 2d 877 (Fla.1988). In this case, the trial court should have allowed appellants to present testimony regarding their ownership of the note and m…
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Springs v. State, 579 So. 2d 915 (Fla. 1st DCA 1991)…d sentence involving multiple counts of armed sexual battery and kidnapping. Appellant now files an uncontested motion for remand, showing that the sentencing guidelines scoresheet includes a juvenile offense which is improper under Morgan v. State, 520 So. 2d 105 (Fla. 2d DCA 1988). We treat this as a confession of error pursuant to Wiley v. State, 578 So. 2d 903 (Fla. 1st DCA 1991), and reverse and remand for resentencing with a corrected scoresheet. REVERSED and REMANDED. SHIVERS, C.J., and WIGGINTON a…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Rousseau, 509 So. 2d 281 (Fla. 1987)
- Tompkins v. State, 502 So. 2d 415 (Fla. 1986)
- Scott v. State, 508 So. 2d 335 (Fla. 1987)
- Mathis v. State, 515 So. 2d 214 (Fla. 1987)
- Bondurant v. Nickolas P. Geeker, 515 So. 2d 214 (Fla. 1987)
- Hinton v. State, 347 So. 2d 1079 (Fla. 3d DCA 1977)
- Spears v. State, 301 So. 2d 24 (Fla. 2d DCA 1974)