ELSIE COOK, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 2d DCA | 1989-12-20
No. 87-00850
LEHAN, A.C.J., and PATTERSON, J., concur.
553 So. 2d 1359 Florida District Court of Appeal, Second District (1989)

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

Elsie Cook was convicted of first-degree felony murder in the death of her young daughter. The appellate court reversed and remanded for a new trial based on two errors: admission of hearsay testimony implicating the codefendant in violation of Bruton principles, and the trial court's failure to inquire into the state's peremptory challenge excluding a black venireman.


Holding

The trial court erred on both grounds. First, the hearsay testimony violated Bruton and was not harmless error because there was no eyewitness testimony about who caused the death and the error could have influenced the jury. Second, under Kibler v. State and Timmons v. State, a white defendant has standing to challenge the exclusion of a black venireman, and the trial court's failure to inquire into such an exclusion is reversible error.


Headnotes

[1] A codefendant's hearsay testimony that the other codefendant committed the murder violates the rule established in Bruton v. …

[2] A defendant's objection to hearsay testimony implicating a codefendant is timely when made immediately after the incriminating statement is elicited.

Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.

Join FLexlaw to unlock all legal intelligence

Key Quotes

“The testimony outlined above is clearly a violation of the standard set in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).”

Establishes that Beverly Timmons's testimony that Richard said Elsie caused the death was a Bruton violation

Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.

Join FLexlaw to unlock all legal intelligence

Facts & Procedural History

On June 30, 1986, the battered body of eighteen-month-old Shannon Cook was found near a hospital in Arcadia, Florida. Elsie Cook and her live-in boyfr…

The full statement of facts, procedural history, and disposition for this case are member content.

Join FLexlaw to unlock all legal intelligence

© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.


Opinion of the Court
THREADGILL, Judge.

THREADGILL, Judge.

Elsie Cook appeals her conviction of first degree felony murder arising from the death of her young daughter. We find merit in her contentions that the court erred in allowing certain hearsay testimony and in failing to inquire into the state’s peremptory challenge and excusal of a black venireman. We reverse and remand for a new trial.

On the morning of June 30, 1986, the badly battered body of eighteen-month-old Shannon Cook was found near the old emergency room of the DeSoto Memorial Hospital in Arcadia, Florida. Subsequent investigation led to the arrest of the child’s mother, Elsie Cook, and her live-in boyfriend, Richard Timmons. Both Timmons and Elsie Cook were indicted for first degree felony murder and aggravated child abuse and were tried together as codefend-ants.

During the course of the trial, witnesses were called who had knowledge of statements made by one codefendant which concerned the other codefendant. The trial court had most of this testimony proffered out of the jury’s hearing and then carefully instructed the witnesses to avoid mentioning before the jury any statement by one codefendant which would implicate the other. During his defense, the codefendant, Richard Timmons, called his wife Beverly to testify, and on cross examination, Beverly Timmons admitted discussing the case with her husband. The following exchange occurred in the presence of the jury:

Q: And did Richard indicate to you who caused the injuries and ultimate death of Shannon Cook?

A: Yes, he has.

Q: What did he say in that regard?

A: That Elsie had done it.

The appellant objected and moved for a mistrial and a severance. The trial court withheld ruling and later denied the motion, stating that the defense had failed to timely object and that the error could be cured by instruction. We disagree. The testimony outlined above is clearly a violation of the standard set in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). The exact questions which elicited the harmful hearsay could have elicited a proper answer, and counsel, therefore, did not fail to timely object by waiting for the incriminating answer. The state and the witness had been admonished not to repeat anything Timmons had said about the involvement of his codefendant, and the appellant should have been able to rely on the court’s warning to the witness.

The harmless error doctrine will save certain Bruton violations from reversal, State v. Garcia, 240 So. 2d 633 (Fla.1970); Verni v. State, 536 So. 2d 1162 (Fla.2d DCA 1988), but it cannot be stated here that the error was harmless. The circumstances indicate that either or both of the codefendants could have committed this murder. Other than the appellant’s testimony, there was no eyewitness testimony about who did the killing. The appellant testified that the killing was done by Timmons and other than the hearsay at issue, there is no evidence to contradict her testimony. It cannot therefore be said that the error was harmless beyond a reasonable doubt. See Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969).

The appellant also charges error in the failure of the court to inquire into the state’s peremptory dismissal of a black prospective juror during voir dire examination. The trial court found that because the appellant was not black, she did not have standing to object to the exclusion. Our supreme court has recently held, however, that a white defendant does have standing to challenge the exclusion of a black venireman, Kibler v. State, 546 So. 2d 710 (Fla.1989), and that a failure to inquire into such an exclusion is reversible error. This court recently reversed and remanded the appellant’s codefendant, Richard Tim-mons, for a new trial based on this identical issue. See Timmons v. State, 548 So. 2d 255 (Fla.2d DCA 1989). We decline the state’s invitation to revisit the issue in this case. In light of Kibler and Timmons, we find the trial court erred in excluding the black venireman without inquiry.

Because our decision on these two points is dispositive, we do not reach the appellant’s other points on appeal.

Reversed and remanded for a new trial.

LEHAN, A.C.J., and PATTERSON, J., concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Authorities Cited

Full citator, related cases, and AI research tools

Open in FLexlaw