W. C. EUBANKS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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W.C. Eubanks was convicted of second-degree murder after the trial court erred in striking the testimony of three character witnesses. The appellate court reversed and remanded for a new trial, finding the error was not harmless because the witnesses' testimony regarding the defendant's reputation was vital to his credibility in a case turning on conflicting eyewitness accounts.
The trial court clearly erred in striking the testimony of the three reputation witnesses, and the error was not harmless. The defendant's credibility was vital to the defense given the material conflicts between his testimony and that of the two child eyewitnesses, making the character testimony probative and potentially determinative of the jury's verdict.
“It was clearly error to strike the testimony of these witnesses.”
Establishes that the trial court's ruling was erroneous under established precedent regarding admissibility of reputation evidence based on absence of derogatory information.
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Join FLexlaw to unlock all legal intelligenceEubanks was indicted and tried for first-degree murder. A jury returned a verdict of guilty of murder in the second degree. At trial, the State presen…
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The defendant was indicted and tried on the charge of murder in the first degree. A verdict of guilty of murder in the second degree was returned by the jury.
In disposing of this appeal it is only necessary to consider one assignment of error —“Did the Court err in striking the testimony of the three reputation witnesses.”
The Court struck the testimony of the witnesses John Newbern, Horace O’Shields, and Howard K. Hall because each of said witnesses testified that their opinion of the defendant’s character was based primarily on the fact that they had never heard anything bad or derogatory about the defendant even though they had known him for many years and lived in the same community with him.
It was clearly error to strike the testimony of these witnesses. See Hinson v. State, 59 Fla. 20, 52 So. 194; also Herring v. State, 114 Fla. 156, 154 So. 187.
At the trial the State vigorously opposed the introduction of the testimony of these three witnesses, yet now contends that the error was harmless.
The State presented two eye witnesses to the homicide — Larry Davis, aged 12 years, and Albert Butcher, aged 10 years. The testimony of these two witnesses conflicts in some material points. The defendant was the only other eye witness. His testimony is in conflict with the testimony of the two other eye witnesses as to the material facts involved in the shooting. Therefore, the credibility of the defendant and the other two eye witnesses was vital to the defense.
The record shows that four character witnesses were permitted to testify and that the testimony of the three witnesses named here was stricken by the Court and the jury admonished to disregard their testimony. This record reflects a very strenuous effort on the part of the defense to introduce the testimony of these witnesses and an equally strenuous effort by the State to exclude their testimony. The record shows that the trial court was very concerned, even recessing for the purpose of research and argument on the question of the admissibility of the testimony of the three witnesses in question. It is certainly clear that, at the trial, the State considered that the testimony would be harmful and that the defendant considered it would be helpful to him.
The jury did not find the defendant guilty of the maximum offense charged and we can only speculate as to whether or not the proffered evidence would have had any effect on their verdict.
We cannot say with any degree of certainty that the error was harmless, and therefore must reverse.
Reversed and remanded for new trial.
WIGGINTON, Acting C. J., CARROLL, DONALD K., J., and FITZPATRICK, W. L., Associate Judge, concur.
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Gen. Cap. Corp. v. TEL Serv. Co., Inc., 212 So. 2d 369 (Fla. 2d DCA 1968)…t for reconsideration and redetermination of the issues that may arise in view of the 1965 Act. See Northeast Polk County Hospital District v. Snively, Fla.1964, 162 So. 2d 657; and ABC Liquors, Inc. v. State of Florida ex rel. Wolfe, Fla.App. 1965, 179 So. 2d 256. In reconsidering this case the lower court may allow or decree such amendments or alterations as are appropriate. Upon the lower court’s disposition of the previously mentioned issues, for which purpose we are temporarily relinquishing jurisdictio…
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Gen. Cap. Corp. v. TEL Serv. Co., Inc., 183 So. 2d 1 (Fla. 2d DCA 1966)…rt for reconsideration and redetermination of the issues that may arise in view of the 1965 Act. See Northeast Polk County Hospital District v. Snively, Fla.1964, 162 So. 2d 657; and ABC Liquors, Inc. v. State of Florida ex rel. Wolfe, Fla.App.1965, 179 So. 2d 256. In reconsidering this case the lower court may allow or decree such amendments or alterations as arc appropriate. Upon the lower court’s disposition of the previously mentioned issues, for which purpose we are temporarily relinquishing jurisdictio…
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Lelekis v. Woodie A. Liles, 240 So. 2d 478 (Fla. 1970)…al the court has the discretion, in the interest of justice, to temporarily relinquish jurisdiction for certain specified purposes. Cf. D’Agostino v. Peoples Water and Gas Company (Fla.1955), 78 So. 2d 739; ABC Liquors, Inc. v. State (Fla.App.1965), 179 So. 2d 256; General Capital Corporation v. Tel Service Co. (Fla.App.1968), 212 So. 2d 369. For the reasons above stated it appears that the respondents acted within the orbit of their jurisdiction so the rule nisi heretofore issued is dissolved and the cause—…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Hinson v. State, 59 Fla. 20 (Fla. 1910)
- Herring v. State, 114 Fla. 156 (Fla. 1934)