ERNEST SOMERVILLE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Somerville was convicted of dealing in stolen property after selling a ring. The Florida District Court of Appeal reversed, finding that the trial court improperly excluded cross-examination regarding the full context of Somerville's statements to police and admitted improper lay opinion testimony about whether the ring was stolen.
The conviction and sentence are reversed. The trial court committed reversible error by sustaining the prosecution's objection to cross-examination about the full context of Somerville's statement to police, and by admitting Morris's improper lay opinion testimony that was not demonstrably based on his perceptions and was used to prove Somerville's state of mind rather than the relevant issue of Somerville's knowledge about the ring's stolen status.
[1] A defendant is entitled to cross-examine a witness concerning the balance of a statement previously elicited by the state to provide the jury with the full context.
[2] Lay opinion testimony is improper when it is not demonstrably based upon anything perceived by the witness.
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Join FLexlaw to unlock all legal intelligence“the defense was entitled to cross-examine the witness concerning the balance of the conversation in order that the jury might understand the whole context of the statement elicited by the state”
Establishes the fundamental right to full cross-examination and the impropriety of allowing partial context of defendant's statements
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Join FLexlaw to unlock all legal intelligenceErnest Somerville sold a ring to David Morris and was arrested and charged with dealing in stolen property. At trial, the prosecution called the arres…
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KAHN, Judge.
Ernest Somerville, who was convicted of dealing in stolen property1 after he sold a ring to David Morris, appeals his conviction and sentence. We reverse, finding merit in two of Somerville’s contentions.
The state called the arresting officer to testify as to certain statements made by Somerville upon his arrest. When the defense attempted to cross-examine the officer as to the balance of appellant’s statement to the officer, the court sustained an objection by the state. This was error, since the defense was entitled to cross-examine the witness concerning the balance of the conversation in order that the jury might understand the whole context of the statement elicited by the state. Guerrero v. State, 532 So. 2d 75 (Fla. 3d DCA 1988); Eberhardt v. State, 550 So. 2d 102 (Fla. 1st DCA 1989), rev. denied 560 So. 2d 234 (Fla.1990).2
The trial court also improperly allowed Mr. Morris to testify he bought the ring because, “I felt like it was stolen ... I was going to have it traced to see if it was.” Mr. Morris’ statement was improper lay opinion testimony, since it was not demonstrably based upon anything perceived by the witness. Section 90.701, Fla.Stat. (1989). While Somerville’s knowledge, or lack thereof, that the ring in question was stolen was quite relevant, the prosecution could not properly use the testimony of Morris' to prove the state of mind of the accused. Correll v. State, 523 So. 2d 562 (Fla.1988), cert. denied 488 U.S. 871, 109 S.Ct. 183, 102 L.Ed.2d 152 (1988); Bailey v. State, 419 So. 2d 721 (Fla. 1st DCA 1982).
Somerville’s conviction and sentence are reversed, and this cause is remanded for a new trial.
SHIVERS and ZEHMER, JJ„ concur. . Under § 812.019(1), Fla.Stat., one is guilty of dealing in stolen property if he "traffics in, or endeavors to traffic in, property that he knows or should know was stolen."
. We have not overlooked the state's contention that appellant failed to proffer the excluded evidence. From the record it is clear that both the trial court and the prosecutor recognized that the testimony would concern Somerville’s explanation of how he came to have the ring. Since this court is not required to speculate as to the substance of the officer’s testimony, the failure to proffer, while not a wise choice on counsel’s part, is not fatal to review. Reaves v. State, 531 So. 2d 401 (Fla. 5th DCA 1988).
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Earnest Somerville, Jr. v. State, 626 So. 2d 1070 (Fla. 1st DCA 1993)…tencing hearing concluded, Somerville entered a plea to the charge of failure to appear and received a concurrent 10-year sentence with a mandatory maximum of five years. He appealed his conviction and sentence, and we reversed. Somerville v. State, 584 So. 2d 200 (Fla. 1st DCA 1991). A new trial was held, and appellant was again convicted of dealing in stolen property. The trial court sentenced him to a 30-year sentence with a 10-year mandatory minimum to run consecutive to the 10-year sentence on the failu…
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Antoury v. State, 943 So. 2d 906 (Fla. 5th DCA 2006)…when the State “opens the door” by eliciting testimony about part of the defendant’s conversation with police, the defendant is entitled to cross-examine the witness about other relevant statements made during the conversation. Somerville v. State, 584 So. 2d 200 (Fla. 1st DCA 1991); Guerrero v. State, 532 So. 2d 75 (Fla. 3d DCA 1988). The reason for this rule is to ensure that the jury understands the entire context of the statements elicited by the State, Som-erville, 584 So. 2d at 201, and is not misled b…
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Murphy v. State, 642 So. 2d 646 (Fla. 4th DCA 1994)…907, 109 S.Ct. 3219,106 L.Ed.2d 569 (1989). Moreover, this was not a case where a lay witness may testify in the form of opinion because the witness cannot otherwise communicate accurately and fully what he or she perceived. See Somerville v. State, 584 So. 2d 200 (Fla. 1st DCA 1991); Mills v. State, 367 So. 2d 1068 (Fla. 2d DCA), cert. denied, 374 So. 2d 101 (Fla.1979). The state claims that Ms. Kezar’s testimony does not clearly suggest that she suspected that appellant was doing something illegal. We disa…
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
- Thompson v. Louisiana, 488 U.S. 871 (U.S. 1988)
- Correll v. State, 523 So. 2d 562 (Fla. 1988)
- Kennedy Eberhardt v. State, 550 So. 2d 102 (Fla. 1st DCA 1989)
- Guerrero v. State, 532 So. 2d 75 (Fla. 3d DCA 1988)
- Bailey v. State, 419 So. 2d 721 (Fla. 1st DCA 1982)
- Reaves v. State, 531 So. 2d 401 (Fla. 5th DCA 1988)