MARK FRATCHER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Mark Fratcher was convicted of battery on law enforcement officers, resisting with violence, and retail theft of sunglasses. The Florida appellate court reversed and ordered a new trial due to three significant trial errors: improper jury instruction on flight, wrongful exclusion of a defense witness, and improper admission of hearsay evidence.
The court reversed and remanded for a new trial because the three errors caused sufficient harm. The flight instruction was error under controlling precedent; exclusion of the defense witness was unduly severe; and the hearsay testimony was inadmissible because the complete statement revealed reflective thought that destroyed the spontaneity required for the exception.
[1] A jury instruction on flight is improper when the defendant's explanation for departure and evasions from officers is central to the defense.
[2] A new rule of law announced by the supreme court must be applied retrospectively to all cases pending on direct review or not yet final.
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Join FLexlaw to unlock all legal intelligence“This was error under Fenelon v. State, 594 So.2d 292 (Fla.1992), where our supreme court disapproved of this practice.”
Establishes that the flight instruction was legal error under controlling Florida Supreme Court precedent
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Join FLexlaw to unlock all legal intelligenceFratcher was charged with three counts of battery on a law enforcement officer, resisting officers with violence, and retail theft of sunglasses from …
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[*526] PER CURIAM.
Defendant was convicted of three counts of battery on a law enforcement officer, resisting officers with violence, and retail theft of a pair of sunglasses. We reverse for a new trial because of the harm caused by the three following errors.
First, over defense objection the trial court instructed the jury on flight. This was error under Fenelon v. State, 594 So. 2d 292 (Fla.1992), where our supreme court disapproved of this practice. Defendant is entitled to the benefit of Fenelon because his appeal was pending when it was decided. See Smith v. State, 598 So. 2d 1063 (Fla.1992) (any decision of supreme court announcing a new rule of law must be given retrospective application in every case pending on direct review or not yet final). We cannot say that the error was harmless here, as the crux of the defense was defendant’s explanation for his departure from the drugstore and subsequent evasions from pursuing officers.
Second, we find error in the exclusion of a defense witness, offered to rebut the testimony of one of the state’s three officers. Although this witness was first disclosed during trial, the state failed to demonstrate any possible prejudice other than a hampered ability to impeach. This ground alone is not sufficient because it would necessitate “exclusion in every case regardless of the comparative detriment to the parties and the justice of the case.” Baker v. State, 522 So. 2d 491, 492 (Fla. 1st DCA 1988). Exclusion of this witness was far too severe a remedy for these circumstances, where the failure to list the witness during pretrial disclosure was inadvertent; the prejudice to the state could have been eliminated through a continuance; and the omitted evidence was directly relevant to the theory of the defense.
Finally, it was error to allow the store manager to testify that as he left the store when the alarm sounded he was approached by the defendant’s sister and boyfriend who declared: “He took a pair of sunglasses.” Had the court admitted the entire statement, the testimony would have revealed the following omitted part: He has a pair of sunglasses that he didn’t pay for. Could we just pay for them and forget about it?” This context reveals that the speaker engaged in reflective thought, thereby vitiating the spontaneity and reliability of the statement and destroying its admissibility under the spontaneous statement exception to the hearsay rule.
REVERSED FOR A NEW TRIAL.
GLICKSTEIN and FARMER, JJ„ and DOWNEY, JAMES C., Senior Judge, concur.
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Sherwin James Miller v. State, 636 So. 2d 144 (Fla. 1st DCA 1994)…clusion is too severe a remedy where the only prejudice that can be shown due to the non-disclosure of a witness is an inability to obtain evidence for impeachment purposes. Baker v. State, 522 So. 2d 491, 492 (Fla. 1st DCA 1988); Fratcher v. State, 621 So. 2d 525 (Fla. 4th DCA 1993). In Fratcher, a defense witness was offered to rebut the testimony of one of the officers testifying for the state. Although the witness was first disclosed at trial, the state failed to demonstrate any possible prejudice other t…
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J.M. v. State, 665 So. 2d 1135 (Fla. 5th DCA 1996)
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Sanchez-Andujar v. State, 60 So. 3d 480 (Fla. 1st DCA 2011)…lusion in every case, regardless of the comparative detriment to the parties and the justice of the case”). See also Grace v. State, 832 So. 2d 224, 227 (Fla. 2d DCA 2002); Miller v. State, 636 So. 2d 144, 149 (Fla. 1st DCA 1994); Fratcher v. State, 621 So. 2d 525, 526 (Fla. 4th DCA 1993). . Christian had been placed under oath for the proffer, and had already been tendered for cross-examination by the prosecution. . "Prejudice in this context means procedural prejudice significantly affecting the opposing…
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
- Rhoda Smith v. State, 598 So. 2d 1063 (Fla. 1992)
- King Anthony Green v. State, 594 So. 2d 292 (Fla. 1992)
- Baker v. State, 522 So. 2d 491 (Fla. 1st DCA 1988)