ROBERT F. D'AGOSTINO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the admission of inadmissible hearsay testimony was not harmless error beyond a reasonable doubt.
[1] Testimony that a witness made a positive identification of a defendant out of court, when that witness does not testify in court, constitutes inadmissible hearsay.
[2] The admission of inadmissible hearsay testimony is not harmless error when the evidence of guilt is otherwise weak and the hearsay testimony may have unduly influenced th…
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Join FLexlaw to unlock all legal intelligenceThe defendant was tried for aggravated battery, and witnesses identified him. A detective testified that two other witnesses, who did not testify, had…
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FARMER, Judge.
Appellant was tried for aggravated battery. At trial two witnesses, Van Briggle and O’Brien, identified him as the aggressor or other person involved in the fight. Another state witness, Detective Hoffman, was asked the following questions about photographs he had shown two other witnesses, Egas and Palacios, and the officer gave the following responses:
Q. Now, had the photographs that you showed these people, what did you tell them you were looking at?
A. I just told them if they could identify the photographs as the person responsible for the offense that was committed on the night in question.
* * * * *
Q. * * * Who exactly was it that can positively identify the Defendant?
* * * # *
THE WITNESS: Mr. Egas made a positive identification and Mr. Palacios made a positive identification.
Neither Egas nor Palacios testified in court. Defendant objected to this testimony as hearsay, but the objection was overruled. The jury returned a verdict of guilty.
We are unable to conclude that the admission of this inadmissable hearsay was harmless beyond any reasonable doubt. See State v. DiGuilio, 491 So. 2d 1129 (Fla.1986). The trial took place more than two years after the incident. The victim testified that he did not see his assailant. Van Briggle admitted that he had told the police one month after the incident that he wasn’t really paying any attention to the fight, that he did not see how it started, that he had said that the victim was drunk, that he had misdescribed the defendant, and that he was unable to identify defendant in a lineup shortly after the fight. O’Brien admitted that he had told the police — also just one month afterwards — that the victim had started the fight, although he testified at trial that he did not see who started the fight.
Hence it appears that the jury may have been overly influenced by the inadmissable hearsay as to the weight of the in-court identifications in spite of the impeachment. We are left with no alternative except to order a new trial.
REVERSED AND REMANDED FOR NEW TRIAL.
GUNTHER and GARRETT, JJ., concur.
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Alcantar v. State, 987 So. 2d 822 (Fla. 2d DCA 2008)…s error was compounded when the same officer was permitted to testify that the confidential informant identified the seller as Mr. Alcantar. That testimony was clearly inadmissible hearsay. See § 90.801(l)(c), Fla. Stat. (2006); D’Agostino v. State, 582 So. 2d 153 (Fla. 4th DCA 1991) (holding detective’s testimony as to identification of the defendant by witnesses who did not testify was inadmissible hearsay requiring reversal of judgment). The fact that the officer’s testimony in this regard was initially p…
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Bernsford Evans v. State, 721 So. 2d 766 (Fla. 4th DCA 1998)…ication of Evans inadmissible hearsay. See § 90.801(2)(c), Fla. Stat. (1997); Hayes v. State, 581 So. 2d 121 (Fla.), cert. denied, 502 U.S. 972, 112 S.Ct. 450, 116 L.Ed.2d 468 (1991); State v. Freber, 366 So. 2d 426 (Fla. 1978); D’Agostino v. State, 582 So. 2d 153 (Fla. 4th DCA 1991). The State contends that the denial of the motion for mistrial was not an abuse of discretion because the admission of such hearsay testimony was harmless given the other evidence presented. We cannot agree. While it is true th…
Authorities Cited
- State v. DiGUILIO, 491 So. 2d 1129 (Fla. 1986)