ANTHONY ROBERT MILLER, JR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the trial court erred in denying the motion to sever because the co-defendant's statement was inadmissible hearsay and violated the defendant's confrontation rights.
[1] A co-conspirator's statement is admissible against a defendant only if the conspiracy and the defendant's participation in it are established by independent evidence.
[2] A trial court must follow specific procedures when a defendant moves to sever a trial based on a co-defendant's statement that refers to the moving defendant but is not a…
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Join FLexlaw to unlock all legal intelligenceAnthony Miller, Jr. and his father were convicted of armed robbery and kidnapping. The father's statement, "Hurry up, Anthony," was the only direct li…
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PATTERSON, Judge.
Anthony Miller, Jr. and his father, Anthony Miller, Sr., were tried together and convicted of two counts of armed robbery and two counts of armed kidnapping. Miller, Jr. appeals his convictions and sentences. His father’s convictions are the subject of a related appeal.
Miller and his father allegedly robbed an Amoco service station in Sarasota and forced the two attendants into a bathroom, threatening to kill them if they emerged. One of the attendants, Nannie Welch, identified Anthony Miller, Sr. as the robber who held a butcher knife at the throat of the other attendant, her husband Luther Welch. Nannie and Luther were unable to identify the second robber. However, they both testified that during the commission of the crime, Miller, Sr. said, “Hurry up, Anthony.” This statement was the only direct link between Anthony Miller, Jr. and the Amoco robbery.
Alleging that this statement was inadmissible against him, Miller, Jr. moved to sever his trial from that of his father. Under these circumstances the trial court was required to follow set procedures in determining whether to sever. Florida Rule of Criminal Procedure 3.152(b)(2) provides:
If a defendant moves for a severance of defendants on the ground that an oral or written statement of a co-defendant makes reference to him but is not admis sible against him, the court shall determine whether the State will offer evidence of the statement at the trial. If the State intends to offer the statement in evidence, the court shall order the State to submit its evidence of such statement for consideration by the court and counsel for defendants and if the court determines that such statement is not admissible against the moving defendant, it shall require the State to elect one of the following courses:
(i) a joint trial at which evidence of the statement will not be admitted;
(ii) a joint trial at which evidence of the statement will be admitted after all references to the moving defendant have been deleted, provided the court determines that admission of such evidence with deletions will not prejudice the moving defendant; or (iii) severance of the moving defendant.
In a hearing on Miller’s motion to sever, the trial court determined that the state intended to offer his father’s statement against him but denied the motion to sever. The court could not have done so without finding the statement admissible against him. We have been unable to determine a basis for this finding.
Appellee argues that the statement was admissible against Miller, Jr. under section 90.803(18)(e), Florida Statutes (1987), the coconspirator exception to the prohibition against hearsay. This section requires that the conspiracy itself and each member’s participation in it must be established by independent evidence before co-conspirator statements may be admitted. The record before us reveals no independent evidence of a conspiracy or of Miller, Jr.’s participation in it. The state failed to make the required showing for admissibility under this section, and we can discern no other hearsay exception under which this statement could have been admitted.
This error resulted in a violation of Miller’s right to confront the witnesses against him because his father did not testify and could not be cross-examined upon this point. As the appellant pointed out, Miller, Sr. could have been referring to another Anthony. We therefore reverse and remand for a new trial.
While our disposition of this issue renders discussion of the appellant’s remaining points unnecessary, we will address one problem that otherwise could occur in the new trial. Miller, Jr. was identified in a lineup by the victim of a previous robbery, and this identification was admitted in this trial as similar fact evidence under Williams v. State, 110 So. 2d 654 (Fla.1959). However, the trial judge in the earlier case had suppressed the identification.
The trial court in this case was bound by the previous ruling. In Brown v. State, 397 So. 2d 320 (Fla. 2d DCA 1981), we addressed this situation in reverse. There, the trial judge in the first case refused to suppress a lineup identification. In a later trial on another crime, the defendant sought to suppress the identification. The trial judge in the second case properly found that collateral estoppel prevented re-litigation of the admissibility of the identification. As in Brown, collateral estoppel prevents relitigation of the admissibility of the Miller identification.
Reversed and remanded for a new trial.
SCHEB, A.C.J., and PARKER, J., concur.
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Marquardt v. State, 156 So. 3d 464 (Fla. 2015)…ents this Court from relitigating a motion to suppress the evidence obtained from the search warrant issued on March 15, 2000 and obtained from the search of Defendant’s automobile. Brown v. State, 397 So. 2d 320 (Fla. 2d DCA 1981); Miller v. State, 545 So. 2d 343 (Fla. 2d DCA 1989). The Wisconsin Supreme Court upheld the submission of the exact same evidence obtained from Defendant’s residence and automobile that Defendant seeks to have excluded in this motion to suppress. See State v. Marquardt [286 Wis.2d…
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Usher v. State, 642 So. 2d 29 (Fla. 2d DCA 1994)…ce any conspiracy to kidnap had ended. See Griffin v. State, 611 So. 2d 20 (Fla. 1st DCA 1992). Furthermore, the record reveals no independent evidence of a conspiracy to commit murder or of the appellant’s participation in it. See Miller v. State, 545 So. 2d 343 (Fla. 2d DCA 1989).- In fact, the trial court concluded that the appellant was not a part of any plan to murder the three boys. Therefore, if the trial court admitted the hearsay statements made after the appellant was taken home pursuant to the eoe…
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Johnson v. State, 581 So. 2d 220 (Fla. 2d DCA 1991)…Brum-field’s hearsay statement in someway implicated Mike in the transaction, it would nonetheless be inadmissible as to him, because the conditions precedent of the co-conspirator exception to the hearsay rule had not been met. See Miller v. State, 545 So. 2d 343 (Fla. 2d DCA 1989); § 90.803(18)(e), Fla.Stat. (1987). The only evidence the state offered as to Mike is that Agent Land saw Mike exiting the pickup truck and arrested him. The mere presence of a person at a scene of a crime is insufficient to esta…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Williams v. State, 110 So. 2d 654 (Fla. 1959)
- Brown v. State, 397 So. 2d 320 (Fla. 2d DCA 1981)