THE STATE OF FLORIDA, APPELLANT,
v.
LUIS HENRY FERREY, APPELLEE
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The State appeals a trial court's grant of a new trial in a burglary and attempted sexual battery case. The court found that repeated references to a non-testifying witness named Carlos, combined with inferential hearsay about his out-of-court statements, violated the defendant's right to confrontation and created a pervasive trial error that was not harmless.
The trial court properly granted the motion for new trial because the State's repeated references to Carlos and inferential hearsay about his statements violated Ferrey's right to confront witnesses against him. The error was pervasive and not harmless, particularly in light of the jury's questions about the evidence.
[1] Testimony that a non-testifying witness provided police with evidence of the defendant's guilt constitutes hearsay and violates the defendant's right of confrontation.
[2] A trial court does not abuse its discretion by granting a new trial when inadmissible hearsay creates the inescapable inference that a non-testifying witness identified t…
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Join FLexlaw to unlock all legal intelligence“where, as in the present case, the inescapable inference from the testimony is that a non-testifying witness has furnished the police with evidence of the defendant's guilt, the testimony is hearsay, and the defendant's right of confrontation is defeated, notwithstanding that the actual statements made by the non-testifying witness are not repeated.”
Establishes the legal standard that inferential hearsay about a non-testifying witness violates confrontation rights even when the witness's actual statements are not repeated.
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Join FLexlaw to unlock all legal intelligenceFerrey was charged with burglary of a dwelling with assault or battery and attempted sexual battery. The victim testified she was awakened by an attac…
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The State of Florida appeals from the trial court’s order granting Luis Ferrey’s motion for new trial. We affirm.
Ferrey was charged with burglary of a dwelling with assault or battery, and attempted sexual battery. Prior to trial, the State announced that it would not be calling the victim’s neighbor, Carlos, as a witness at trial; he was stricken from the witness list and the trial court noted that he would not testify. At trial, the victim testified that she was awakened from her sleep by a noise in her bedroom. A man grabbed her by the throat and attempted to sexually assault her. When she screamed, he ran from the house. The victim made a hesitant identification of Ferrey during trial. In response to the question of whether or not she saw her attacker in the courtroom she pointed hesitantly at Ferrey and testified that she could not make out the details of her attacker’s face during the assault because the room was dark but that Ferrey looked a little different. She went on to say that she was “almost sure” he was the assailant and that his physique resembled that of her assailant. During her direct examination, the victim identified “Carlos” as her next-door neighbor and referred to him several times. Following these references to Carlos, a non-testifying witness, the victim recounted the facts of her assault.
Detective Quinones next testified that as part of his investigation, he obtained information from the victim’s neighbor, Carlos. The trial court sustained several objections from the defense for repeated mention of Carlos, the absent witness, and the hearsay containing Carlos’s statements inferring that Carlos actually had observed the suspect.1 The trial court at one point in*179structed the prosecutor not to mention Carlos or elicit any testimony referring to Carlos and warned that she would grant a mistrial if the State continued to suggest that there was additional evidence of guilt that the jury would not hear. After close of the defense case, the jury asked whether they could use the reference to Carlos made by another witness; the court answered that the statement had been stricken and they could not use it in their deliberations. The jury found Ferrey guilty on all counts. The defense subsequently filed a motion for new trial, citing the independent and cumulative effects of the references to Carlos and his out-of-court statements. The State argued that the error was harmless, was properly cured, and bad no effect on the jury’s verdict. The trial court found otherwise and granted the defendant’s motion for new trial.
The State argues that Hernandez v. State, 547 So.2d 138 (Fla. 3d DCA 1988), should control the outcome of this case. In Hernandez, the investigating detective was allowed to testify that as a result of interviews with various witnesses he began looking for the defendant. Id. The non-testifying witnesses referred to in the detective’s hearsay testimony were not eyewitnesses to the crime charged and it was not clear from the record what incriminating information they gave to him, leading to the defendant’s arrest. Id.
*180We find, however, that the facts presented in Ferrey’s case are more closely allied with those of Postell v. State, 398 So.2d 851 (Fla. 3d DCA 1981) and its progeny. In Postell, the prosecutor elicited, through the testimony of a police officer, the out-of-court declarations of an unidentified eyewitness to the armed robbery with which Postell was charged. In that case, the Third District held that, “where, as in the present case, the inescapable inference from the testimony is that a non-testifying witness has furnished the police with evidence of the defendant’s guilt, the testimony is hearsay, and the defendant’s right of confrontation is defeated, notwithstanding that the actual statements made by the non-testifying witness are not repeated.” Id. at 854.
In the case before us, Detective Quinones testified that the victim told him that there were witnesses that actually observed the possible suspect, and that after interviewing the victim he responded to the victim’s neighbor, Carlos, who was a witness, and asked him what he had seen. The prosecutor several times, over defense objection, stated, “based on your conversation with Carlos ...” Both the State and the detective continued to refer to Carlos as “the witness,” although Carlos was not called to testify at trial and had been stricken from the witness list.
The trial court correctly granted the defendant a new trial. With Carlos’s identity as the victim’s neighbor firmly in the jury’s mind from the victim’s direct testimony, the State engaged in a series of attempts to introduce Carlos’s out-of-court statements through the detective’s testimony. The State improperly elicited inferential hearsay multiple times during the detective’s examination, which gave the jury the distinct impression that someone else identified Ferrey other than the victim. Following the analysis in Postell, the logical inference that followed this challenged inadmissible hearsay was that Carlos, a non-testifying witness, gave the detective accusatory information which ultimately led to Ferrey’s photo being placed in the lineup, and his subsequent arrest. This violated Ferrey’s right to confront witnesses against him and prejudiced his right to a fair trial. We find that the error was pervasive, not harmless in light of the jury’s questions about this evidence, and the trial court did not abuse its discretion by granting the motion for new trial.
Affirmed.
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Authorities Cited
- Postell v. State, 398 So. 2d 851 (Fla. 3d DCA 1981)
- Rangel Hernandez v. State, 547 So. 2d 138 (Fla. 3d DCA 1988)