ANTHONY ZECCHINO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Anthony Zecchino was convicted of first-degree murder based on circumstantial evidence, but the Florida Fourth District Court of Appeal reversed and remanded for a new trial due to prosecutorial error in introducing lay witness opinion evidence of the defendant's guilt.
The court reversed and remanded for a new trial because the prosecutor improperly introduced lay witness opinion evidence of the defendant's guilt. Although such evidence may sometimes be harmless error, it cannot be harmless in a circumstantial evidence case where identity is at issue.
[1] A witness, including a lay witness, may not offer an opinion about the guilt of the defendant.
[2] Testimony offering an opinion on the ultimate issue of guilt is precluded by the danger of unfair prejudice, even if seemingly permitted by statute.
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Join FLexlaw to unlock all legal intelligence“It is clear that error is occasioned where a witness, including a lay witness, is permitted to offer her opinion about the guilt of the defendant.”
Establishes the core legal error—lay witnesses cannot testify to defendant's guilt.
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Join FLexlaw to unlock all legal intelligenceZecchino was charged with shooting his ex-girlfriend's roommate. The ex-girlfriend learned of the shooting while at work and spoke to the investigatin…
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PER CURIAM.
This is an appeal from appellant’s conviction of first-degree murder. We reverse and remand for new trial solely because of prosecutorial error which was harmful in nature. There are a number of issues raised by appellant but we conclude that only one is persuasive; namely, the introduction of witness opinion evidence of appellant’s guilt over timely objection.
This was a circumstantial evidence case involving the shooting death of the roommate of appellant’s ex-girlfriend. Properly admitted evidence provided both motive and opportunity for the shooting at appellant’s hand. Appellant’s ex-girlfriend, who learned of the shooting while at work, came to the residence after the shooting occurred and spoke to the investigating detective. During trial, the prosecutor led this witness right into the error:
[Prosecutor]: Did you tell Detective Palmer who you thought had — what if anything did you you [sic] tell Detective Palmer?
[Defense Counsel’s objection is overruled.] [Prosecutor]: What did you tell Detective
Palmer?
[Witness]: The fact that Mr. Zecchino threatened me to harm all of us in the house and at that point I had told Detective Palmer that I believed at that point that since he had threatened me, that was the only possible thing that could have happened.
(Emphasis added).
Next, the prosecutor led the detective into the same quagmire:
[Prosecutor]: Would you describe to the members of the jury how [appellant’s ex-girlfriend], how her appearance was when you contacted her there at the scene that morning?
[Detective Palmer]: She was upset, excited.
[Prosecutor]: And what if anything did you say to her?
[Detective Palmer]: I tried to calm her down. I said, you know, I’m the detective in this case, and she made immediate response to me about who had done it.
[Prosecutor]: What did she say to you?
[Defense Counsel’s objection is overruled.]
[Prosecutor]: What did you [sic] she say to you at the scene?
[Detective Palmer]: Her initial response to me was that the person reasonable for me [sic — responsible] was Anthony Zec-chino. She gave me his address, his phone number in New Jersey.
[Prosecutor]: What did she say to you?
[Detective Palmer]: She says it’s Anthony Zecchino. He’s my ex-boyfriend.
(Emphasis added).
It is clear that error is occasioned where a witness, including a lay witness, is permitted to offer her opinion about the guilt of the defendant. See Murphy v. State, 642 So. 2d 646, 647 (Fla. 4th DCA 1994) (lay witness); Gibbs v. State, 193 So. 2d 460, 463 (Fla. 2d DCA 1967) (lay witness); see also Glendening v. State, 536 So. 2d 212, 221 (Fla.1988), cert. denied 492 U.S. 907, 109 S.Ct. 3219, 106 L.Ed.2d 569 (1989) (expert witness). As the supreme court explained in Glendening, “[although section 90.703 [“Opinion on Ultimate Issue”] would appear to permit such an opinion, such testimony is precluded on the basis of section 90.403 [“Exclusion on Grounds of Prejudice or Confusion”]. Any probative value such an opinion may possess is clearly outweighed by the danger of unfair prejudice.” Glendening, 536 So. 2d at 221. While this court has held in Farley v. State, 324 So. 2d 662 (Fla. 4th DCA 1975), cert. denied, 336 So. 2d 1184 (Fla.1976), that such evidence may be harmless error, in this circumstantial evidence case where identity was at issue, it cannot be said to be such.
GLICKSTEIN and KLEIN, JJ., and OFTEDAL, RICHARD L., Associate Judge, concur.
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Martinez v. State, 761 So. 2d 1074 (Fla. 2000)…the guilt or innocence of the accused is not admissible. See Glendening v. State, 536 So. 2d 212, 221 (Fla.1988) (citing Lambrix v. State, 494 So. 2d 1143, 1148 (Fla.1986)); Henry v. State, 700 So. 2d 797, 798 (Fla. 4th DCA 1997); Zecchino v. State, 691 So. 2d 1197, 1198 (Fla. 4th DCA 1997); Spradley v. State, 442 So. 2d 1039, 1043 (Fla. 2d DCA 1983); Gibbs v. State, 193 So. 2d 460, 463 (Fla. 2d DCA 1967). Section 90.703, Florida Statutes (1997), which provides that “[t]estimony in the form of an opinion or in…
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Cnty. OF Volusia v. Kemp, 764 So. 2d 770 (Fla. 5th DCA 2000)…w for the court, not for expert witnesses, to decide.”) (citation omitted). In addition, expert testimony should be precluded if its probative value is outweighed by the danger of unfair prejudice. See § 90.403, Fla. Stat. (1999); Zecchino v. State, 691 So. 2d 1197 (Fla. 4th DCA 1997); see also LaVillarena, Inc. v. Acosta, 597 So. 2d 336 (Fla. 3d DCA 1992). In Smith v. Martin, for example, the jury found that the appellant was grossly negligent when he ran over a co-worker in the employer’s truck. The court r…
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Henry v. State, 700 So. 2d 797 (Fla. 4th DCA 1997)…s testimony as calling for a legal conclusion regarding the guilt of the accused. “It is clear that error is occasioned where a witness, including a lay witness, is permitted to offer her opinion about the guilt of the defendant.” Zecchino v. State, 691 So. 2d 1197 (Fla. 4th DCA 1997). Henry’s due process right was violated when the court allowed Ms. Claud to invade the province of the jury and express her opinion regarding Henry’s guilt, not once, but twice. While the admission of such evidence may be harmles…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Glendening v. State, 536 So. 2d 212 (Fla. 1988)
- Gibbs v. State, 193 So. 2d 460 (Fla. 2d DCA 1967)
- Whatley v. Skaggs Cos., Inc., 492 U.S. 907 (U.S. 1989)
- Posey v. Ohio, 492 U.S. 907 (U.S. 1989)
- Farley v. State, 324 So. 2d 662 (Fla. 4th DCA 1975)
- Murphy v. State, 642 So. 2d 646 (Fla. 4th DCA 1994)