DEMETRICE ARMICLE MCNEAL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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On remand from the Florida Supreme Court, the First District Court of Appeal reversed a defendant's conviction because the trial court improperly admitted a victim's handwritten statement under the past-recollection recorded hearsay exception without the victim vouching for its accuracy, and the error was not harmless under the stringent DiGuilio standard.
The trial court erred in admitting the victim's written statement because she did not vouch for its accuracy or correctness as required under Polite v. State. The error was not harmless beyond a reasonable doubt because the State placed major focus on the statement during trial, which could have led the jury to place significant weight on it in identifying the defendant as the assailant, and thus the error could reasonably have contributed to the conviction.
[1] A written statement is inadmissible under the past recollection recorded exception to the hearsay rule if the declarant does not vouch for its accuracy or correctness.
[2] The State bears the burden of proving beyond a reasonable doubt that an evidentiary error did not contribute to the verdict.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the trial court erred by allowing the State to publish the Victim's written statement, because the Victim did not "vouch for its accuracy or correctness."”
Establishes the evidentiary error—admission of prior recollection recorded statement without requisite foundation under Polite
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Join FLexlaw to unlock all legal intelligenceDemetrice McNeal was convicted based in part on evidence including a victim's handwritten statement. The victim did not testify that she vouched for t…
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ON REMAND FROM THE FLORIDA SUPREME COURT
In McNeal v. State, 140 So.3d 991 (Fla.2014), the Florida Supreme Court quashed this court’s opinion in McNeal v. State, 109 So.3d 268 (Fla. 1st DCA 2013), to the extent it affirmed the trial court’s decision to allow the State to publish the Victim’s handwritten statement pursuant to the past-recollection recorded exception to the hearsay rule. The supreme court remanded “for reconsideration in light of [its] decision in Polite [v. State, 116 So.3d 270 (Fla.2013)], and a proper harmless error analysis under State v. DiGuilio, 491 So.2d 1129 (Fla.1986), if applicable.” McNeal, 140 So.3d at 992.
Pursuant to Polite, we are constrained to hold that the trial court erred by allowing the State to publish the Victim’s written statement, because the Victim did not “vouch for its accuracy or correctness.” Polite, 116 So.3d at 279. Thus, the question we must answer is whether the error was harmless.
The harmless error test ... places the burden on the state, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction. Application of the test requires an examination of the entire record by the appellate court including a close examination of the permissible evidence on which the jury could have legitimately relied, and in addition an even closer examination of the impermissible evidence which might have possibly influenced the jury verdict.
... The unique function of the harmless error rule is to conserve judicial labor by holding harmless those errors which, in the context of the case, do not vitiate the right to a fair trial and, thus, do not require a new trial.
DiGuilio, 491 So.2d at 1135 (citation omitted).
Although, in our view, even absent the Victim’s written statement, the State presented sufficient evidence of Appellant’s guilt, this is not sufficient to satisfy the stringent DiGuilio standard that, beyond a reasonable doubt, the erroneous admission of the statement did not contribute to Appellant’s conviction. At trial, a major focus of the State’s questioning of both the Victim and the investigating law enforcement officer was the written statement. This could reasonably have led the jury to place significant weight on the statement, particularly with respect to identifying Appellant as the Victim’s assailant.
*1080For the foregoing reasons, we REVERSE Appellant’s conviction and sentence, and REMAND for a new trial.
WOLF, THOMAS, and MARSTILLER, JJ., concur.
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Citator
Cited By
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Blount v. State, 152 So. 3d 29 (Fla. 1st DCA 2014)…, but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made by the witness when the matter was fresh in the witness's memory and to reflect that knowledge correctly.” . See McNeal v. State, 143 So. 3d 1078 (Fla. 1st DCA 2014); Cherry v. State, 135 So. 3d 1131 (Fla. 1st DCA 2014).…
Authorities Cited
- State v. DiGUILIO, 491 So. 2d 1129 (Fla. 1986)
- Darius Jamine Polite v. State, 116 So. 3d 270 (Fla. 2013)
- Demetrice Armicle McNEAL v. State, 109 So. 3d 268 (Fla. 1st DCA 2013)
- Demetrice Armicle McNEAL v. State, 140 So. 3d 991 (Fla. 2014)