LAWRENCE OWENS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Lawrence Owens was convicted of battery on a law enforcement officer and resisting an officer with violence. The Florida Fourth District Court of Appeal reversed and ordered a new trial because hearsay contents of police dispatch communications were improperly admitted to prove the truthfulness of the information, which was prejudicial in this close case.
The court reversed and ordered a new trial because the hearsay contents of the dispatch were inadmissible for proving the truthfulness of the information and were not harmless error given the close nature of the case and the centrality of the factual dispute.
[1] The contents of a dispatch are inadmissible hearsay when offered to prove the truth of the matter asserted, even if the dispatch is offered to explain police action.
[2] Hearsay testimony regarding a dispatch is not harmless error when the case is close and the hearsay evidence is cumulative to the testimony of the officer who made the ca…
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Join FLexlaw to unlock all legal intelligence“It is permissible for an officer to testify that a dispatch occurred, in order to explain police action, but the hearsay contents of the dispatch are inadmissible for the purpose of proving the truthfulness of the information.”
Establishes the legal rule governing admissibility of dispatch testimony
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Join FLexlaw to unlock all legal intelligenceAppellant Owens was involved in a domestic disturbance and resisted Officer Heinrich's directions and physical efforts to subdue him. An officer respo…
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KLEIN, J.
Appellant was convicted of battery on a law enforcement officer and resisting an officer with violence. We reverse for a new trial because an officer responding to a dispatch was permitted to testify as to the contents of the dispatch, which were inadmissible hearsay and prejudicial.
Appellant’s convictions arose out of a domestic disturbance call, when appellant resisted Officer Heinrich’s directions and his physical efforts to subdue him. An officer who was called to the scene was allowed to testify that beforehand he had received a dispatch that an “officer that was fighting with a subject on a domestic.” He was further permitted to testify that “officer Heinrich got on the radio, advised he needed assistance, immediate backup, that he was violently fighting with a subject.” Officer Heinrich, who had called for help, also testified in a manner consistent with the hearsay testimony of the officer who was being called to the scene.
It is permissible for an officer to testify that a dispatch occurred, in order to explain police action, but the hearsay contents of the dispatch are inadmissible for the purpose of proving the truthfulness of the information. Conley v. State, 620 So. 2d 180 (Fla.1993); Taylor v. State, 845 So. 2d 301 (Fla. 2d DCA 2003). We are unable to agree with the state that the hearsay testimony was harmless as cumulative to the testimony of Officer Heinrich, because this was a close case, and Officer Heinrich was the only witness to testify that the appellant had struck him and was being combative.
Two other witnesses testified that appellant had come out of an apartment with his hands in the air, that appellant did not hit Officer Heinrich, and that Officer Heinrich fired his taser at appellant. The issue was whether appellant had attacked Officer Heinrich, justifying the use of the taser, or whether the officer had prematurely used his taser and then attempted to excuse it by claiming that he was attacked first. Under these circumstances we cannot say that the hearsay as to the two dispatches was harmless as being cumulative.
Our conclusion that this requires a new trial makes the other issues raised by appellant moot; however, we note that on retrial the state cannot ask a defense witness, on cross-examination, to read from a transcript of the witness’s 911 call, unless the transcript is authenticated.
Reversed.
HAZOURI and MAY, JJ., concur.
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Citator
Cited By
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S.D.T. v. State, 33 So. 3d 779 (Fla. 4th DCA 2010)…he BOLO to establish an element of the crime of resisting without violence distinguishes this case from those cases which have held that the contents of a BOLO are inadmissible hearsay. See Conley v. State, 620 So. 2d 180 (Fla.1993); Owens v. State, 948 So. 2d 1009 (Fla. 4th DCA 2007); Taylor v. State, 845 So. 2d 301 (Fla. 2d DCA 2003); Tosta v. State, 786 So. 2d 21 (Fla. 4th DCA 2001); [*781] Horne v. State, 659 So. 2d 1311 (Fla. 4th DCA 1995); Jones v. State, 625 So. 2d 1291 (Fla. 4th DCA 1993). For example…
Authorities Cited
- Conley v. State, 620 So. 2d 180 (Fla. 1993)
- Taylor v. State, 845 So. 2d 301 (Fla. 2d DCA 2003)