KAREN RALSTON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the admission of hearsay testimony regarding an informant's statements was not harmless error and that an officer's opinion on a defendant's prior drug sales based on demeanor was improper.
[1] A police officer's testimony repeating statements made by a paid informant regarding a defendant's ability to supply cocaine is impermissible hearsay.
[2] The erroneous admission of hearsay testimony that indicates a defendant's predisposition to commit a crime is not harmless error when such testimony is crucial to negatin…
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Join FLexlaw to unlock all legal intelligenceAppellant was convicted of cocaine trafficking. The state introduced a police officer's testimony about a paid informant's statements that the appella…
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PER CURIAM.
Ralston appeals from a judgment of conviction for trafficking in cocaine in violation of section 893.03(2)(a)(4), Florida Statutes (1987), a sentence of four years’ incarceration and a $50,000.00 fine. She raises two points on appeal. We find merit with both points and reverse the conviction and sentence and remand for a new trial.
Appellant’s arrest occurred through the assistance of a paid informant. At trial, appellant raised the defense of entrapment. Over defense objection on hearsay grounds, the state introduced a police officer’s testimony that a month earlier he had received a call from the informant who told him that, “Karen could supply cocaine.” He further testified that in his opinion this was not the first time appellant had sold cocaine.
The state concedes that the officer’s recitation of the informant’s statements was impermissible under Harris v. State, 544 So. 2d 322 (Fla. 4th DCA 1989), but that since appellant failed to request a curative instruction any error was harmless. We disagree. The informant’s testimony was the only testimony that indicated appellant’s predisposition to the crime which negated her entrapment defense. Without the testimony, the connection would have been tenuous. Likewise, any curative instruction would have been futile after the trial court overruled the objection and specifically stated that it found the objectionable evidence to be proper. We cannot conclude that the error was harmless under the strict test set out in State v. DiGuilio, 491 So. 2d 1129 (Fla.1986).
In addition, although we find no error in the trial court’s ruling that a police officer could properly describe the circumstances of the drug transaction and appellant’s conduct and demeanor, it would not be proper for the officer to express an opinion, based upon the appellant’s demeanor, as to whether appellant had sold drugs before. Accordingly, we reverse the conviction and sentence and remand for a new trial.
WALDEN, WARNER and POLEN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Cooper v. State, 573 So. 2d 74 (Fla. 4th DCA 1990)…t a black male wearing a blue shirt and hat was supplying the informant with cocaine, was reversible error because the information was not ambiguous and curative 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, 48…
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Harris v. State, 34 So. 3d 187 (Fla. 1st DCA 2010)…t “[t]he proper procedure to take when objectionable comments are made is to object and request [a curative] instruction ... ”). Such rule would not apply here, however, where the court actually overruled the defendant’s objection. Ralston v. State, 555 So. 2d 443, 444 (Fla. 4th DCA 1990) (observing that “any curative instruction would have been futile after the trial court overruled the objection and specifically stated that it found the objectionable evidence to be proper”); Johnson v. Canteen Corp., 528 So…
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Asberry v. State, 568 So. 2d 86 (Fla. 1st DCA 1990)…er’s hearsay statements, because the error was not harmless in 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. WE…
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- State v. DiGUILIO, 491 So. 2d 1129 (Fla. 1986)
- Bartelmy Harris v. State, 544 So. 2d 322 (Fla. 4th DCA 1989)