Bartholomew v. State
101 So. 3d 888
| Fla. Dist. Ct. App. | 2012Background
- Kino Bartholomew appeals convictions for first‑degree murder, two counts of attempted second‑degree murder, robbery with a firearm, and attempted robbery with a firearm.
- The State admitted a taped statement of witness Derek Stephens as past recollection recorded over defense objection to improper foundation.
- Stephens repudiated the taped statement in writing before trial and testified he could not remember its contents; he later claimed the events never occurred.
- The trial court admitted the statement, finding reliability based on the totality of circumstances; Stephens testified unfavorably to the statement at trial.
- Seven autopsy photographs were admitted over objection; they were arguably cumulative and not necessary to prove any material issue.
- Appellant contends the evidence errors were reversible; the court reverses on the past recollection issue and discusses the autopsy photos for remand.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Past recollection recorded admissibility | State lacked proper foundation for recorded recollection. | Stephens repudiated the statement; foundation insufficient. | Admission was reversible error; improper foundation. |
| Impeachment use of prior statement | Statement helpful to prove guilt via corroboration. | Prosecution used statement primarily for impeachment. | Improper to call for primary impeachment purpose; error. |
| Harmless error | Error did not contribute to verdict beyond reasonable doubt. | Other evidence supported conviction independently. | Error not harmless; reversal required. |
| Autopsy photographs | Photographs helpful to explain cause of death and injuries. | Photos were cumulative and prejudicial. | Abuse of discretion; remand to resolve on retrial. |
Key Cases Cited
- Polite v. State, 41 So.3d 935 (Fla. 5th DCA 2010) (addressed foundation required for past recollection recorded)
- Montano v. State, 846 So.2d 677 (Fla. 4th DCA 2003) (reliability of recorded recollection rests on maker's credibility)
- Kimbrough v. State, 846 So.2d 540 (Fla. 4th DCA 2003) (insufficient foundation where declarant cannot attest; improper admission)
- Hernandez v. State, 31 So.3d 873 (Fla. 4th DCA 2010) (taped statement used primarily for impeachment is improper)
- Smith v. State, 880 So.2d 730 (Fla. 2d DCA 2004) (Polite criticized; totality of circumstances analyzed for reliability)
- Pickett v. United States, not Florida; 822 A.2d 404 (D.C. 2003) (emphasizes requirement of confirmation of accuracy in some contexts)
- State v. Alvarado, 949 P.2d 835 (Wash. App. 1998) (four indicators of reliability for totality-of-circumstances approach)