DARREN SMITH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 4th DCA | 1989-11-29
No. 88-2909
HERSEY, C.J., and GUNTHER, J., concur., WARNER, J., concurs specially with opinion.
554 So. 2d 552 Florida District Court of Appeal, Fourth District (1989) Positive Treatment
Cited by 8 cases
Topics
Right To Confrontation Hearsay Harmless Error

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Opinion of the Court
PER CURIAM.

PER CURIAM.

AFFIRMED.

HERSEY, C.J., and GUNTHER, J., concur. WARNER, J., concurs specially with opinion.

Concurrence
WARNER, Judge,

WARNER, Judge,

concurring specially.

The appellant claimed that the trial court admitted hearsay which constituted reversible error. The objectionable testimony came from a police officer responding to the scene of the robbery of which appellant was ultimately convicted. The officer testified that a passerby reported to her that three men were beating up another man in the parking lot of a newspaper building. The trial court admitted this testimony, which Appellant claims was contrary to Harris v. State, 544 So. 2d 322 (Fla. 4th DCA 1989), because the passerby’s statement to the police officer was accusatory and supplied evidence of appellant’s guilt without providing for the appellant’s right of confrontation of witnesses against him.

Although the statement did not identify appellant as one of the individuals doing the beating, appellant claims that it was harmful in that the testimony contradicted his defense that a fourth person was involved and committed the offense. In Harris, as in Postell v. State, 398 So. 2d 851 (Fla. 3d DCA 1981), and Fulmore v. State, 483 So. 2d 765 (Fla. 4th DCA 1986), the hearsay statement was specific in its identification of the defendant as the guilty party. In this case there is no identification of appellant, just the presence of three men beating someone up. While I am of the opinion that hearsay statements may implicate a defendant in the commission of a crime other than by identification and run afoul of the right of confrontation, c.f. Favre v. Henderson, 464 F. 2d 359, 362 (5th Cir.), cert. denied, 409 U.S. 942, 93 S.Ct. 235, 34 L.Ed.2d 193 (1972), the statement in this case was not such a statement. The fourth person defense was in no way defeated by this statement, as a review of the testimony of all of the participants makes it clear that only three persons were gathered around the car at the time which the occupant thereof was assaulted. Therefore, at most this hearsay statement was harmless error.

Cases With Similar Vibessemantic neighbors from the corpus

Citator

Cited By

  • Cooper v. State, 573 So. 2d 74 (Fla. 4th DCA 1990)
    …instruction would not have rendered it harmless. Id. at 325. See also Ralston v. State, 555 So. 2d 443 (Fla. 4th DCA 1990); Florio v. State, 554 So. 2d 633 (Fla. 4th DCA 1989); Baird v. State, 553 So. 2d 187 (Fla. 1st DCA 1989). Cf. Smith v. State, 554 So. 2d 552 (Fla. 4th DCA 1989); Allen v. State, 474 So. 2d 261 (Fla. 4th DCA 1985), rev. denied, 484 So. 2d 7 (Fla.1986). In this case, after examination of the nature of the suspect comment, we find the retelling of what occurred does not appear to involve t…
  • Burney v. State, 579 So. 2d 746 (Fla. 4th DCA 1991)
    …he accusatory information. Although the hearsay testimony offered by James did not directly implicate Burney in the murders, after hearing testimony from other witnesses, the jury could reasonably infer that Burney was involved. See Smith v. State, 554 So. 2d 552, 553 (Fla. 4th DCA 1989) (where Judge Warner, concurring specially, acknowledged “that hearsay statements may implicate a defendant in the commission of a crime other than by identification and run afoul of the right of confrontation”). Additionally…
  • Asberry v. State, 568 So. 2d 86 (Fla. 1st DCA 1990)
    …n the circumstances, because Asberry was denied his right to confront witnesses against him, and because of the state’s failure to raise this argument. See Harris at 325; Ralston v. State, 555 So. 2d 443, 444 (Fla. 4th DCA 1990). Cf. Smith v. State, 554 So. 2d 552, 553 (Fla. 4th DCA 1990). Accordingly, we reverse the convictions and sentence, and remand for a new trial. REVERSED and REMANDED for further proceedings consistent with this opinion. WENTWORTH, MINER and WOLF, JJ., concur.…

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