DARRELL CLIFFORD SPEARS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the admission of a co-conspirator's statement, testified to by an officer, was inadmissible hearsay and a violation of the right of confrontation.
[1] Admission of an out-of-court statement implicating the defendant, elicited through redirect examination of an officer after the declarant was subpoenaed but not called as…
[2] A defendant's cross-examination of an officer regarding whether any statements were made does not open the door to the admission of a specific out-of-court statement made…
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Join FLexlaw to unlock all legal intelligenceThe appellant was convicted of breaking and entering. The state introduced testimony from an officer regarding a statement made by a co-conspirator th…
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BOARDMAN, Judge.
The appellant, Darrell Clifford Spears, was charged by information with breaking and entering a building other than a dwelling house with intent to commit a felony. A jury trial resulted in a conviction as charged and this timely appeal followed.
At the time of the offense charged and arrest the appellant was in the company of several other individuals. One of these individuals, Kenneth Ray Barker, allegedly made a statement that directly implicated the appellant. Barker was subpoenaed by the state but not called as a witness at the trial. Instead, the state was able to get the substance of the Barker statement in the record on redirect examination of the officer who obtained the statement. This testimony was timely objected to on grounds of hearsay and right of confrontation. The trial judge overruled the objection, evidently because he was of the opinion that the defense had opened the door to this inquiry on cross-examination.
We have reviewed the record on appeal and conclude that the admission of this testimony was error. The inquiry of defense counsel, on cross-examination of the officer, into whether any statements had been made to the officer was clearly the laying of a predicate to impeach the validity of any statements made by Ida Ko-pistecki, another participant. There was no such inquiry into the statement made by Barker. As the statement attributed to Barker was the only evidence that directly implicated appellant as a participant in the crime charged, we cannot hold this error to be harmless.
On retrial, in the event the state elects to do so, the circumstantial evidence link ing appellant to the offense charged, without the complained-of testimony, may result in a jury verdict of guilty; however, in view of the present posture of the record, we cannot say what weight the jury, in arriving at its verdict, placed on the statement attributed to Barker and testified to by the officer. Accordingly, the judgment appealed is reversed and the cause remanded for new trial.
Reversed and remanded.
MANN, C. J., and HOBSON, J., concur.
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Hinton v. State, 347 So. 2d 1079 (Fla. 3d DCA 1977)…ified the statements made in response to questions asked on cross-examination by defense counsel to elicit answers favorable to the defense. See 81 Am.Jur.2d, Witnesses § 425, supra. In seeking reversal, defendant relies heavily on Spears v. State, 301 So. 2d 24 (Fla. 2d DCA 1974), but we find this reliance to be misplaced. The record contains direct eyewitness testimony which is more than sufficient to sustain a conviction, without the testimony complained of. First, the prosecutor’s redirect examination o…
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Morgan v. State, 520 So. 2d 105 (Fla. 2d DCA 1988)…the statement that Morgan had committed the robbery. The trial court [*107] pointedly instructed the jury that the evidence was to be considered only for that limited purpose. Although the defendant has argued that our decision in Spears v. State, 301 So. 2d 24 (Fla. 2d DCA 1974), precludes the result we now reach, we find Spears distinguishable. In that case there was no showing that the contested hearsay was offered for any purpose other than to prove the truth of its content. Furthermore, in Spears the…