WILLIAM TOMMY DAUGHTERY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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William Tommy Daughtery was convicted of armed robbery after testimony that he pulled a gun during the third visit to Kassees Grocery Store. On appeal, Daughtery challenged the trial court's admission of hearsay evidence—a statement by an unknown boy that the group planned to rob the store, admitted solely because Daughtery was present when made. The court affirmed the conviction despite finding the hearsay ruling erroneous, applying the harmless error doctrine.
The trial court erred in admitting the hearsay statement based merely on appellant's presence when the statement was made, as presence alone does not create a hearsay exception. However, the error was harmless because substantial independent evidence of guilt existed, particularly the victim's in-court identification of the appellant, making the hearsay evidence at best cumulative.
[1] A statement made in the presence of a party is not admissible as an exception to the hearsay rule merely because the party was present when it was made.
[2] An otherwise inadmissible hearsay statement may be admitted if the party's silence in response to the statement can be inferred as an admission of its truth.
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Join FLexlaw to unlock all legal intelligence“It is a frequent abuse of the hearsay rule to allow hearsay testimony on the ground that the defendant was present at the time the statement was made. This hip pocket rule is unsupported by authorities.”
Court identifies and rejects the erroneous 'hip pocket rule' permitting hearsay based on defendant's presence
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Join FLexlaw to unlock all legal intelligenceOn March 25, 1970, boys visited Kassees Grocery Store in Jacksonville, Florida multiple times. During the third visit, appellant pulled a gun and took…
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Appellant seeks reversal of a judgment of conviction of armed robbery. On March 25, 1970, some hoys entered the Kassees Grocery Store in Jacksonville, Florida. The boys returned a second and a third time. Sam Kassees testified at trial that during their third visit to the store, appellant pulled a gun and took around fifty dollars from him.
Also at trial, one LeRoy McDonald testified that prior to the robbery he saw the appellant and two others about a block from the grocery store. Appellant had a gun in his hip pocket. McDonald stated that he went up to the group and that one of the boys (not the appellant) stated, “We are going to hit the store so you better get out.” Appellant’s counsel objected to the admissibility of such statement on the ground that it was hearsay. However, the trial judge allowed it in evidence on the basis that the appellant was present when the statement was made. The person who made the statement was not produced by the State and did not testify at the trial.
Appellant argues that his presence at the time the statement was made does not alter the character of the hearsay statement or constitute an exception to the hearsay rule.
It is a frequent abuse of the hearsay rule to allow hearsay testimony on the ground that the defendant was present at the time the statement was made. This hip pocket rule is unsupported by authorities. The misconception stems from confusion with the hearsay exception of admission by silence. The otherwise hearsay statement can only be admitted when it can be shown that in the context in which the statement was made, it was so accusatory in character that the defendant’s silence may be inferred to have been assent to its truth. An admission by silence is not applicable in the instant case as the statement was not accusatory as regarding the appellant, but rather was made by someone else to a third person.
The Fourth District Court of Appeal recently made reference to this common misconception of the hearsay rule in Johnson v. State, 249 So.2d 452 (Fla.App.1971), at page 455 as follows:
“ . . . Any concept that an otherwise inadmissible hearsay declaration is made admissible merely because it is stated in the presence of a party is erroneous. The fact that the party was present when the declaration was made does not create an exception to the rule against hearsay. The only significance to be attributed to the fact that a party was present at the time a statement was made by one other than the witness testifying is that under certain limited circumstances the party’s failure to promptly deny such statement will give rise to the inference that the party’s silence is an admission of the truth of such statement. . . . ”
Although the lower court’s ruling based on a misconception of the law of hearsay is erroneous, it is not grounds for reversal in light of the harmless error rule, Section 924.33, Florida Statutes, F.S.A. Disregarding the hearsay statement, there was more than sufficient evidence upon which the jury could find that appellant participated in the robbery of Kassees Grocery, particularly the in-court identification of appellant by the victim. Therefore, we hold that the objectionable hearsay was at best cumulative and thereby harmless. Urga v. State, 155 So.2d 719 (Fla.App. 1963). Accordingly, the judgment appealed is affirmed.
CARROLL, DONALD K., and RAWLS, JJ., concur.
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Nelson v. State, 748 So. 2d 237 (Fla. 1999)…al. The hearsay statement can only be admitted when it can be shown that in the context in which the statement was made it was so accusatory in nature that the defendant’s silence may be inferred to have been assent to its truth. Daughtery v. State, 269 So. 2d 426 (Fla. 1st DCA 1972). To determine whether the person’s silence does constitute an admission, the circumstances and the nature of the statement must be considered to see if it would be expected that the person would protest if the statement were untr…
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Privett v. State, 417 So. 2d 805 (Fla. 5th DCA 1982)…l. The hearsay statement can only be admitted when it can be shown that in the context in which the statement was made it was so accusatory in nature that the defendant’s silence may be inferred to have been assent to its truth. Daughterty v. State, 269 So. 2d 426 (Fla. 1st DCA 1972). To determine whether the person’s silence does constitute an admission, the circumstances and the nature of the statement must be considered to see if it would be expected that the person would protest if the statement were untr…
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Lawrence v. State, 294 So. 2d 371 (Fla. 1st DCA 1974)…recent holding that the Duval County hearsay rule as to being in the presence of the defendant is not the law and that rule — ” [*373] The trial court summarily overruled the objection as it had on the occasion of Walker’s. In Daughtery v. State, 269 So. 2d 426 (Fla.App.1st 1972), Judge Spector, speaking for this Court, cremated what was termed during the instant trial as the “Du-val County Rule on Hearsay”, when he stated as follows: “It is a frequent abuse of the hearsay rule to allow hearsay testimony o…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Diamante Urga v. State, 155 So. 2d 719 (Fla. 2d DCA 1963)
- Johnson v. State, 249 So. 2d 452 (Fla. 4th DCA 1971)