WILLIE DIXON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A dissenting justice argued that the erroneous admission of evidence was not harmless error, citing discrepancies in identification, lack of physical evidence, and a substantial alibi defense.
The dissenting justice could not conclude beyond a reasonable doubt that the informant's identification did not contribute to the conviction, thus the error was not harmless.
The victim's companions identified the appellant in a photographic lineup three weeks after the incident, but their initial description of the assaila…
The full statement of facts, procedural history, and disposition for this case are member content.
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LETTS, Judge.
We grant the motion for rehearing because of an error in our description of the facts and substitute the following as our opinion:
During trial, a police officer testified before the jury that an informant had indicated to him that the defendant was the culprit who committed the murder. We conclude, under the facts of this case, that the erroneous admission of this hearsay evidence was harmless error. We agree that error occurred under Harris v. State, 544 So. 2d 322 (Fla. 4th DCA 1989) and State v. Baird, 572 So. 2d 904 (Fla.1990), when this hearsay testimony was admitted over objection. However, there were five independent eyewitnesses present at the murder scene. Three of the eyewitnesses testified at trial that it was the defendant who committed the murder. Moreover, a police officer testified, without objection, that the two other eyewitnesses identified the defendant as the culprit during a photographic lineup. The evidence of guilt was overwhelming, and we hold beyond a reasonable doubt, that the error did not affect the verdict.
As to Judge Anstead’s comment in his dissent about change in appearance, we would, for example, point out that all five eyewitnesses picked the defendant out of a photographic lineup. This lineup was con ducted shortly after the murder at which time the defendant’s appearance had not changed. Moreover, the change in appearance did not stop the three eyewitnesses at trial from later making the positive in-court identification.
AFFIRMED.
GLICKSTEIN, C.J., concurs.
ANSTEAD, J., dissents with opinion.
ANSTEAD, Judge,
dissenting.
I cannot find the error to be harmless. Although it is true that the boys accompanying the victim identified the appellant in a photographic lineup conducted three (3) weeks after the incident, it is also true that appellant’s physical dimensions and appearance were completely different than the description these same boys gave to the police immediately after the crime. In addition, there was no physical evidence to connect appellant to the crime. He was not connected to any vehicle similar to the one the boys said the assailant occupied, and no gun was found. Finally, appellant presented a substantial alibi defense through the testimony of several witnesses specifically accounting for his activities on the date of the crime. Based upon this testimony, a jury could have found a reasonable doubt. I cannot conclude beyond a reasonable doubt that the informant’s fingering of appellant did not play a role in his conviction. State v. Lee, 531 So. 2d 133 (Fla.1988); State v. DiGuilio, 491 So. 2d 1129 (Fla.1986).
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Authorities Cited
- State v. DiGUILIO, 491 So. 2d 1129 (Fla. 1986)
- State v. Baird, 572 So. 2d 904 (Fla. 1990)
- Bartelmy Harris v. State, 544 So. 2d 322 (Fla. 4th DCA 1989)
- State v. LEE, 531 So. 2d 133 (Fla. 1988)
- Kinchen v. State, 531 So. 2d 133 (Fla. 1988)