BETTY GETHERS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Betty Gethers was convicted of aggravated assault with a firearm after being acquitted of armed burglary. The appellate court affirmed her conviction, finding that although the trial court erred in failing to require her personal presence at a hearing on the admissibility of a prior statement, the error was harmless given the overwhelming evidence against her and the statement's consistency with the defense strategy.
While the trial court erred in not requiring Gethers's personal presence at the hearing or obtaining her personal waiver of that right, the error was harmless. The court also found no abuse of discretion in admitting the statement after considering the relevant circumstances and the discovery violation.
[1] A defendant has a right to be present at a hearing on the admissibility of evidence, and the court must secure a personal waiver of this right from the defendant.
[2] An error in denying a defendant the right to be present at a pre-trial hearing may be harmless if the defendant is present when the evidence is offered and received, has…
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Join FLexlaw to unlock all legal intelligence“We agree with appellant that the court erred in not requiring her presence at the hearing, or in not securing a personal waiver from her of the right to be present.”
Establishes that the trial court violated the defendant's right to be present at the admissibility hearing
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceGethers was tried for armed burglary and aggravated assault with a firearm against a victim. A jury acquitted her of armed burglary but convicted her …
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PER CURIAM.
AFFIRMED. A jury acquitted the appellant of armed burglary but found her guilty of aggravated assault with a firearm. Of the six issues raised by appellant, we find no reversible error but believe two merit discussion. They both involve the court’s decision to allow a police officer to testify to a statement, made by appellant but previously undisclosed to the defense, in which she told the officer that she had approached the victim to scare her, but not to hurt her. At trial, the state asked the court to conduct a hearing out of the presence of the jury to rule on the admissibility of the statement. The appellant contends the court erred in allowing her counsel to waive her presence during this hearing, and in subsequently admitting the testimony about the statement into evidence.
We agree with appellant that the court erred in not requiring her presence at the hearing, or in not securing a personal waiver from her of the right to be present. See Savino v. State, 555 So. 2d 1237 (Fla. 4th DCA 1989), quashed on other grounds, 567 So. 2d 892 (Fla.1990). However, we conclude that under the circumstances the error was harmless. See Turner v. State, 530 So. 2d 45, 49-50 (Fla.1987), cert. denied, 489 U.S. 1040, 109 S.Ct. 1175, 103 L.Ed.2d 237 (1989). The appellant was present at the time the testimony of the officer was actually offered and received, and she had a full opportunity to consult with counsel or inform counsel of any concerns about the officer’s testimony that could be addressed on cross-examination or otherwise utilized by counsel. In addition, the evidence against appellant was overwhelming and largely unrebutted, and included eyewitnesses as well as evidence of appellant’s admission to other police officers of her participation in the incident. Finally, the defense strategy at trial was to emphasize that the gun involved was unloaded and to concede that the appellant had done something “stupid” in confronting her neighbor, but not something criminal. If anything, the statement in issue supported that strategy-
We also find no error in the trial court’s admission of the officer’s testimony as to appellant’s statement. At the state’s initiation, a hearing was conducted out of the presence of the jury and the circumstances of the discovery violation fully explored. See Richardson v. State, 246 So. 2d 771 (Fla.1971). The court considered and rejected appellant’s claim of prejudice, and also offered appellant an opportunity to depose the police officer before the officer testified. Although we agree the statement should have been disclosed in discovery, we find no abuse of discretion in the trial court’s decision to admit the statement after considering the relevant circumstances.
ANSTEAD, HERSEY and WARNER, JJ., concur.
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Picked v. State, 32 So. 3d 638 (Fla. 4th DCA 2009)…ot procedurally prejudiced by the disclosure of Tracey’s name on the first day of trial. When the trial court has held a Richardson hearing, its decision is subject to reversal only upon a showing that it abused its discretion. See Gethers v. State, 620 So. 2d 201, 202 (Fla. 4th DCA 1993); Banda v. State, 536 So. 2d 221, 223 (Fla.1988); Michaels v. State, 505 So. 2d 694 (Fla. 4th DCA 1987); Whites v. State, 730 So. 2d 762, 764 (Fla. 5th DCA 1999); Smith v. State, 499 So. 2d 912 (Fla. 1st DCA 1986). “Discretio…1 / 2
Authorities Cited
- Richardson v. State, 246 So. 2d 771 (Fla. 1971)
- State v. Savino, 567 So. 2d 892 (Fla. 1990)
- Turner v. State, 530 So. 2d 45 (Fla. 1987)
- Honolulu Fed. Sav. & Loan Assn. v. Murabayashi, 489 U.S. 1040 (U.S. 1989)
- Savino v. State, 555 So. 2d 1237 (Fla. 4th DCA 1989)