BERNSFORD EVANS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Bernsford Evans was convicted of armed robbery, but the trial court improperly admitted hearsay testimony regarding an out-of-court identification by witness Teresa Crispino who did not testify at trial. The appellate court reversed the conviction and remanded for a new trial because the error was not harmless beyond a reasonable doubt.
The trial court abused its discretion in denying the motion for mistrial. The admission of hearsay testimony regarding the out-of-court identification was not harmless error because, considering the frequency of hearsay references and the jury's specific request for Crispino's police report, the appellate court cannot state beyond a reasonable doubt that the error did not affect the verdict.
[1] Testimony regarding a witness's out-of-court identification is inadmissible hearsay when the witness fails to testify at trial.
[2] The admission of inadmissible hearsay testimony is considered harmless error only if the appellate court can determine beyond a reasonable doubt that the error did not af…
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“Harmless error analysis must not become a device whereby the appellate court substitutes itself for [the] jury, examines the permissible evidence, excludes the impermissible evidence, and determines that the evidence of guilt is sufficient or even overwhelming based on the permissible evidence.”
Establishes the proper standard for harmless error review—courts must not reweigh evidence or substitute their judgment for the jury's
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Join FLexlaw to unlock all legal intelligenceEvans was convicted of armed robbery. At trial, the State presented testimony about an out-of-court identification made by Teresa Crispino, a witness …
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STEVENSON, Judge.
Following his conviction for armed robbery, Berrisford H. Evans, the appellant, challenges the trial court’s denial of his motion for mistrial made after the State failed to produce Teresa Crispino, a witness whose out-of-court identification of Evans was repeatedly mentioned to the jury. On appeal, the State concedes that Crispino’s failure to testify at trial rendered all of the testimony regarding her out-of-court identification 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 that the testimony of another witness who had identified Evans as the perpetrator of the offense was presented, her identification was the more equivocal of the two and was made only after she had learned that her co-worker, Crispino, had made an identification. This fact, coupled with the frequency of the hearsay references to Crispino’s out-of-court identification, and the jury’s request for “the police report from Teresa Crispino reporting the robbery,” make it impossible for us to state, beyond a reasonable doubt, that the error did not affect the verdict. See State v. DiGuilio, 491 So. 2d 1129, 1136 (Fla.1986)(“[H]armless error analysis must not become a device whereby the appellate court substitutes itself for the jury, examines the permissible evidence, excludes the impermissible evidence, and determines that the evidence of guilt is sufficient or even overwhelming based on the permissible evidence.”); see also Ciccarelli v. State, 531 So. 2d 129, 132 (Fla.1988)(stating with regard to the harmless error analysis, “The court must determine not if there is overwhelming evidence of guilt, but if it can be said beyond a reasonable doubt that the verdict could not have been affected by the error.”)(emphasis in original). Accordingly, we reverse the judgment of conviction and remand for a new trial.
REVERSED and REMANDED.
SHAHOOD, J., and COHN, JAMES I., Associate Judge, concur.
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Citator
Cited By
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Clavon D. Perry v. State, 817 So. 2d 985 (Fla. 4th DCA 2002)…to this case, we held the érroneous admission of said testimony was not harmless because the officer made it appear (all) the identification testimony regarding the assailant was “consistent” when in fact it was not. Id. at 1018. In Evans v. State, 721 So. 2d 766 (Fla. 4th DCA 1998), the lower court erroneously admitted an out-of-court identification of the defendant previously made by a non-testifying eyewitness. We found such error was not harmless, where the only other evidence was an identification by th…
Authorities Cited
- State v. DiGUILIO, 491 So. 2d 1129 (Fla. 1986)
- State v. Freber, 366 So. 2d 426 (Fla. 1978)
- Ciccarelli v. State, 531 So. 2d 129 (Fla. 1988)
- Hayes v. State, 581 So. 2d 121 (Fla. 1991)
- Lyle v. Saginaw Cnty. Cir. Court Stenographer, 502 U.S. 972 (U.S. 1991)
- Williamson v. United States, 502 U.S. 972 (U.S. 1991)
- D'Agostino v. State, 582 So. 2d 153 (Fla. 4th DCA 1991)