MARCUS C. REED, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 5th DCA | 2012-03-30
No. 5D11-742
ORFINGER, C.J. and COHEN, J., concur.
114 So. 3d 969 Florida District Court of Appeal, Fifth District (2012) Positive Treatment
Cited by 4 cases

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Synopsis

Marcus Reed was convicted of firearm possession by a convicted felon and carrying a concealed firearm after a jury trial. The appellate court reversed because the trial court erred in admitting testimony from a former venire person that undermined Reed's credibility on his necessity defense, and the error was not harmless.


Holding

The court reversed, holding that the trial court erred in admitting the venire person's testimony because it was based on speculation about Reed's intent without context, and the error was not harmless given that Reed's necessity defense depended almost exclusively on his credibility and testimony.


Headnotes

[1] A trial court errs in permitting testimony from a former venire person regarding a defendant's alleged statement made during jury selection.

[2] A defendant's statement overheard during jury selection, made without full context, is speculative and may not be admissible for impeachment purposes.

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Key Quotes

“Given that Reed's necessity defense hinged on the credibility of his testimony, we cannot conclude that the error was harmless.”

The court's holding that even clearly irrelevant evidence impacting the defendant's credibility cannot be deemed harmless when credibility is central to the defense.

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Facts & Procedural History

Law enforcement officers conducted a narcotics operation in Orlando. Deputies observed what they believed was a drug transaction involving a black mal…

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Opinion of the Court
EVANDER, J.

EVANDER, J.

Marcus Reed was convicted, after a jury trial, of possession of a firearm by a convicted felon1 and carrying a concealed firearm.2 He raises two issues on appeal. First, Reed contends that the trial court erred in denying his pretrial motion to suppress. Second, he argues that the trial court abused its discretion in permitting “impeachment” testimony from a former venire person. On appeal, the State acknowledges that the testimony from the former venire person should not have been allowed, but argues that the error was harmless. We reverse.

The evidence below reflects that on the afternoon in question, law enforcement officers were engaged in an operation directed to narcotics activity occurring at a certain Orlando location. While hidden, two deputies observed what they believed to be an illegal drug transaction. One of the deputies radioed Deputy Nelson who was nearby in a marked police vehicle. Deputy Nelson was informed by his fellow officer that a black male wearing all black clothing had just purchased drugs and was traveling southbound on a “pink-colored style” bike. Within a minute thereafter, Deputy Nelson stopped an individual (Reed) who met the general description3 given by his fellow officer.

Immediately upon being stopped, Reed informed Deputy Nelson that he had a firearm in his right front pants pocket. After Deputy Nelson had secured the weapon, Reed advised the deputy that he had taken the gun from two children. Upon learning that Reed was a convicted felon, Deputy Nelson did not attempt to locate and/or interview the children from whom Reed allegedly took the gun. No drugs were found on Reed and it was subsequently determined that Reed was not the individual who had been observed in the purported drug transaction.

After an evidentiary hearing, Reed’s motion to suppress was denied4 and the case *971proceeded to trial. During a recess from jury selection in the first scheduled trial, venire person Anthony Ousley overheard Reed tell a female companion, “we ain’t going to say that, we are going to say he drawed [sic] it.” Ousley was apparently of the belief that Reed intended to lie on the stand. The trial court struck the venire and rescheduled the trial.

Prior to the commencement of the second trial, Reed sought to have Ousley’s anticipated testimony excluded. Reed correctly argued that Ousley did not know the context in which the alleged statement was made and that it was speculative for Ous-ley to believe that Reed was “going to fabricate something on the stand.” The prosecutor disagreed, arguing:

So, it’s the State’s position that if someone says they’re going to lie on the stand, then that needs to be brought to the jury’s attention.

The trial court ruled that should Reed testify, the State would be permitted to introduce Ousley’s testimony. In response to defense counsel’s argument that it was impossible to put Reed’s statement in context, the trial judge opined:

It’s not impossible, when you take into account this man was sitting in the gallery, was part of the jury selection process in the first trial, saw the defendant sitting up here, heard the charges read on the record, and this statement and the quoted text in the statement, in the light of that context, is perfectly clear, and I am going to deny the defense’s motion in limine with regard to this statement.

The State called only Deputy Nelson during its ease in chief. During cross-examination, Deputy Nelson acknowledged that Reed had been fully cooperative during the stop and had told him that he [Reed] had taken the gun from some children for their safety.

After the State rested, Reed testified. He claimed that while riding his bicycle he observed a man, who was running through a nearby field, discard a gun. According to Reed, some young children (who appeared to be approximately ten years of age) began to approach the discarded weapon. Reed testified that he seized the gun with the intent of bringing it to Vivian Adams — a family friend who was employed by the Orange County Sheriffs Department. Reed further testified that he was on his way to Adams’ residence when he was stopped by Deputy Nelson. The defense also called Vivian Adams. Adams confirmed that she had been employed by the Orange County Sheriffs Department for twenty-eight years, that she resided in the area, and that she was a family friend of Reed. Adams opined, based on her firearms safety training, that young children are often drawn to guns.

After the defense rested, the State called Ousley as a rebuttal witness. The State was permitted, over objection, to have Ousley testify as to the statement he had overheard Reed make during jury se*972lection at the first scheduled trial. Ousley acknowledged that he did not hear the context of the entire conversation, but stated: “knowing what I heard ... I didn’t feel that I could be a good juror.”

During oral argument, the State’s counsel admirably conceded that the trial court erred in permitting Ousley’s testimony. However, it was the State’s position that because Ousley’s testimony was so clearly irrelevant, it was highly unlikely that the jury gave it any weight and, thus, the error was harmless. We reject this argument. The record below reflects that the prosecutor, defense counsel, and trial judge all believed that Ousley’s testimony would, at a minimum, imply to the jury that Reed intended to lie at his first trial. In the instant case, Reed’s primary defense was “necessity.”5 The defense’s effort to establish this defense was based almost exclusively on Reed’s testimony. Given that Reed’s necessity defense hinged on the credibility of his testimony, we cannot conclude that the error was harmless.

REVERSED and REMANDED.

ORFINGER, C.J. and COHEN, J., concur.


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Citator

Cited By

  • Croix Michael Carter v. State, 120 So. 3d 207 (Fla. 5th DCA 2013)
    …ent, substantial evidence. Thomas, 109 So. 3d at 817. An officer can testify in a suppression hearing as to his own knowledge and information received from other reliable sources, such as fellow officers. Bowers, 87 So. 3d at 710; see Reed v. State, 114 So. 3d 969, 970 n. 4 (Fla. 5th DCA 2012) (noting that suppression hearing was flawed in part because officer observing traffic infraction did not testify); see also State v. Adderly, 809 So. 2d 75, 75-77 (Fla. 4th DCA 2002) (reversing suppression in part becau…
  • Brooks v. State, 122 So. 3d 418 (Fla. 2d DCA 2013)
    …criminal conduct, (4) the harm sought to be avoided was more egregious than the criminal conduct perpetrated to avoid it, and (5) the defendant ceased the criminal conduct as soon as the necessity or apparent necessity for it ended. Reed v. State, 114 So. 3d 969, 972 n. 5 (Fla. 5th DCA 2012). Having reviewed the applicable law, we turn now to the facts of Mr. Brooks’ case. As the trial court correctly observed, the first of the five elements of the necessity defense requires that the defendant reasonably b…

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