GOLDIA KIMBLER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Kimbler's murder and tampering convictions are reversed because circumstantial evidence was insufficient to exclude reasonable hypotheses of innocence and the state improperly used inadmissible hearsay testimony.
Convictions for second-degree murder and tampering with evidence must be reversed when circumstantial evidence fails to exclude reasonable hypotheses of innocence beyond a reasonable doubt.
[1] Circumstantial evidence insufficient to support conviction when it fails to fairly exclude reasonable hypotheses of innocence that are suggested by the evidence or lack t…
[2] Extrajudicial statements made by a witness cannot be used as competent evidence against a defendant when the state attempts to use them to impeach the witness's trial tes…
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Join FLexlaw to unlock all legal intelligence“The evidence does not fairly exclude several hypotheses of her innocence which are suggested by the evidence or lack of it, and which the jury and trial judge were bound to regard.”
Court's explanation of why circumstantial evidence was insufficient to support conviction
Joe Max Valdez died from an abdominal gunshot wound at Kimbler's home on August 23-24, 1976; the weapon was never found, and medical evidence indicate…
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SMITH, Judge.
Kimbler appeals from her convictions of murder in the second degree and tampering with evidence. Joe Max Valdez died of an abdominal gunshot wound at appellant’s home on the night of August 23, 1976, or early the next morning. The weapon was not found. He was last seen alive by testifying witnesses at 10 p. m. The medical evidence suggests he died no later than 2 a. m. Police arrived at 8:30 a. m. The convictions rest on incriminating inferences from circumstantial evidence. That evidence was insufficient to permit findings, beyond a reasonable doubt, of Kimbler’s guilt.
The evidence does not fairly exclude several hypotheses of her innocence which are suggested by the evidence or lack of it, and which the jury and trial judge were bound to regard. Davis v. State, 90 So. 2d 629 (Fla.1956); Head v. State, 62 So. 2d 41 (Fla.1952); Amato v. State, 296 So. 2d 609 (Fla. 3d DCA 1974). The incriminating extrajudicial testimony given by the witness Burr, with which the state attempted to impeach Burr when she failed to so testify as the court’s witness, cannot be considered as competent evidence on the charge against appellant. Pitts v. State, 333 So. 2d 109 (Fla. 1st DCA 1976). Appellant’s motion for new trial should have been granted. McArthur v. State, 351 So. 2d 972 (Fla.1977). The convictions are REVERSED AND REMANDED.
McCORD, C. J., and BOYER, J., concur.
SMITH, Judge.
Kimbler’s petition for rehearing calls attention to the United States Supreme Court decisions announced June 14 in Burks v. United States, - U.S. -, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), and Greene v. Massey, - U.S. -, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978); and to that Court’s summary action on June 26, 1978, - U.S. -, 98 S.Ct. 3119, 57 L.Ed.2d 1145, vacating McArthur v. State, 351 So. 2d 972 (Fla.1977), relied on in our opinion in this case, and remanding the case for reconsideration in the light of Burks and Greene. In ordering Kimbler remanded for a new trial, because she had asked for that relief, below and not for judgment of acquittal, we gave effect to a view of the Double Jeopardy Clause which Burks and Greene have overruled. Burks holds that when as here an appellate court has determined that the evidence was insufficient to support the conviction, the accused must be discharged, not retried; and that "it makes no difference that a defendant has sought a new trial as one of his remedies, or even as the sole remedy.” Burks, - U.S. at -, 98 S.Ct. at 2150.
The petition for rehearing is GRANTED and Kimbler is DISCHARGED.
McCORD, C. J., and BOYER, J., CONCUR.
Cases With Similar Vibessemantic neighbors from the corpus
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Santiago v. State, 874 So. 2d 617 (Fla. 5th DCA 2004)…pellant's possession was the vehicle taken from the victim of the theft. Id. at 551, citing Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978); Kimbler v. State, 360 So. 2d 1270 (Fla. 1st DCA 1978). 636 So. 2d at 790-91.…
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McNEIL v. State, 433 So. 2d 1294 (Fla. 1st DCA 1983)…oduced solely for the purpose of impeaching his in-court testimony pursuant to § 90.608(l)(a).1 Therefore, although the statement was properly admitted for impeachment purposes, it was not substantive evidence of appellants’ guilt. Kimbler v. State, 360 So. 2d 1270 (Fla. 1st DCA 1978); Pitts v. State, 333 So. 2d 109 (Fla. 1st DCA 1976). Without considering Andrews’ pri- or inconsistent statement as substantive evidence, the only support for the appellants’ conviction lies in the presumption raised by their po…
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Coyle v. State, 493 So. 2d 550 (Fla. 4th DCA 1986)…nce at trial that the vehicle in Coyle’s possession was the vehicle taken from Houser. See Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 15 (1978); Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978); Kimbler v. State, 360 So. 2d 1270 (Fla. 1st DCA 1978). REVERSED AND REMANDED. DELL and WALDEN, JJ., concur.…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Burks v. United States, 437 U.S. 1 (U.S. 1978)
- Nadean O. McARTHUR v. State, 351 So. 2d 972 (Fla. 1977)
- Hoyt Dan Davis v. State, 90 So. 2d 629 (Fla. 1956)
- Greene v. Massey, 437 U.S. 19 (U.S. 1978)
- Amato v. State, 296 So. 2d 609 (Fla. 3d DCA 1974)
- Head v. State, 62 So. 2d 41 (Fla. 1952)
- Jones v. Moss, 333 So. 2d 109 (Fla. 1st DCA 1976)