ALANA SAVELL
v.
STATE OF FLORIDA
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The appellate court denied a petition challenging the denial of a motion to dismiss charges. The court found that while the trial court may have erred in applying the Best Evidence Rule, the petitioner failed to properly proffer the excluded testimony, thus preventing appellate review of any potential error.
The appellate court held that even if the trial court erred in excluding the testimony, the petitioner failed to proffer the excluded testimony. Without a proper proffer, the appellate court cannot determine if any error was harmful.
[1] Testimony about the contents of an unrecoverable video recording is admissible under an exception to the Best Evidence Rule if all originals are lost or destroyed, unless…
[2] A trial court's error in excluding testimony is not reversible unless the error is harmful.
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“While it appears the trial court failed to determine whether the evidence was admissible pursuant to section 90.954(1), Florida Statutes, we nonetheless deny the petition because petitioner failed to proffer the excluded testimony.”
This quote establishes the court's primary reason for denying the petition, despite acknowledging a potential error by the lower court.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceThe petitioner was charged with aggravated battery with a firearm after an altercation where she discharged her weapon. At a motion to dismiss hearing…
The full statement of facts, procedural history, and disposition for this case are member content.
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WOLF, J.
Petitioner challenges the trial court’s denial of her motion to dismiss an information charging her with two counts of aggravated battery with a firearm. She argues that the trial court incorrectly applied the Best Evidence Rule at the hearing on petitioner’s motion to dismiss by excluding testimony about an unrecoverable video tape depicting the altercation that led to her charges. While it appears the trial court failed to determine whether the evidence was admissible pursuant to section 90.954(1), Florida Statutes, we nonetheless deny the petition because petitioner failed to proffer the excluded testimony. Petitioner was charged after an altercation occurred at her residence during which she discharged a firearm and injured two people.
At the hearing on her motion to dismiss, petitioner
attempted to have several witnesses testify about the contents of a video from her home security system that she claimed was unrecoverable. Petitioner alleges that this testimony would have provided evidence that the male victim attempted to forcibly reenter her residence at the time of the altercation, providing her with justification to discharge her firearm.
The trial court sustained the State’s objection to this testimony on the grounds that its admission would violate the Best Evidence Rule. The Best Evidence Rule requires the offering party to present “an original writing, recording, or photograph . . . in order to prove the contents of the writing, recording, or photograph.” § 90.952, Fla. Stat.
However, an exception to the rule exists: “[t]he original of a writing, recording, or photograph is not required . . . and other evidence of its contents is admissible when . . . [a]ll originals are lost or destroyed, unless the proponent lost or destroyed them in bad faith.” § 90.954(1), Fla. Stat.; Yero v. State, 138 So. 3d 1179, 1184 (Fla. 3d DCA 2014) (holding, in part, that testimony about the contents of a video that is unrecoverable is admissible under an exception to the Best Evidence Rule provided there was no bad faith on the part of the offering party). Here, it is not clear the trial court conducted a bad faith analysis.
However, Best Evidence Rule violations are subject to harmless error analysis. T.D.W. v. State, 137 So. 3d 574, 577 (Fla. 4th DCA 2014). Here, petitioner did not proffer or attempt to proffer the excluded testimony. Only a small portion of what might have been said was presented to the court. We cannot consider the admissibility of excluded testimony which is not present in the record. See Jacobs v. Wainwright, 450 So. 2d 200, 201 (Fla. 1984).
Accordingly, we cannot deem that any potential error was harmful. The petition is DENIED. B.L. THOMAS and ROBERTS, JJ., concur. _____________________________
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Eligaah Ardalle Jacobs v. Louie L. Wainwright, 450 So. 2d 200 (Fla. 1984)
- T.D.W. v. State, 137 So. 3d 574 (Fla. 4th DCA 2014)
- Yero v. State, 138 So. 3d 1179 (Fla. 3d DCA 2014)