Carroll v. StateCarroll v. State
Jim Smith, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., for appellee.
The defendant appeals his conviction of third degree murder, armed burglary and armed robbery without a firearm. We reverse.
The first issue raised by the defendant that we will consider is whether the trial court erred in allowing a prior consistent statement of one of the witnesses to be introduced through the testimony of Detective Parmenter, the lead investigator on this case. To fully resolve this issue, we must consider all the evidence and testimony presented while resolving all conflicts in favor of the prevailing party, the state.
Judy Trevino was the manager of a Sambo‘s restaurant in Naranja Lakes. The body of the homicide victim was discovered by Trevino in the early morning of February 25, 1981, in a trailer which she had shared with the victim. The victim had been a cook at the Sambo‘s restaurant managed by Trevino. On the night of the incident, Trevino left for the restaurant at about 9:30 p.m. When she returned at 12:30 a.m., Trevino found the trailer in disarray, numerous items missing, and then discovered the victim‘s body. The victim‘s automobile, a brown 1969 Cadillac, was missing from the driveway, where it had been when Trevino had left for work.
The victim died as the result of a single gunshot wound to the left side of the neck, probably inflicted while he was sleeping. Metro-Dade detectives determined that the entry into the trailer had been made through a window of the master bedroom. They discovered a ladder leaning against the wall outside the bedroom. A paper bag containing a Sambo‘s uniform was found at the base of the ladder.
The uniform in the paper bag was identified as belonging to the defendant who had begun working at Sambo‘s about four days earlier. The defendant had just moved into a trailer with Rudy Martin, another Sambo‘s employee. Martin‘s trailer was located about 300 yards from Trevino‘s trailer.
Martin‘s testimony indicated that on the night of the homicide, the defendant left their trailer on his way to work at about 9:30 p.m. The defendant left on foot, as the restaurant was only about four blocks away, and he left carrying his Sambo‘s uniform in a paper bag. The defendant never reported to work that night. At about 11:00 p.m., the defendant returned to Martin‘s trailer without the bag and he was not wearing his uniform. The defendant informed Martin he was going to live with his brother and proceeded to gather his belongings. The defendant gave Martin the key to the trailer and departed. Martin testified that just prior to the defendant‘s return to the trailer he had heard a car drive up, and that when the defendant left the trailer, he heard a car door close and a car drive away. Martin described the car as having “long, skinny taillights ... [and] it looked like a Cadillac.”
Glenn Brown, a neighbor of Trevino, testified that he heard a gunshot at approximately 10:00 p.m., February 24, 1981. Upon hearing the shot, Brown went outside his trailer and looked up and down the street. While on the street, Brown saw what he described as a small male‘s hand twice reach out of the doorway of Trevino‘s trailer and pull the open door closed. Brown returned to his trailer and shortly thereafter he heard the victim‘s Cadillac crank up. He indicated that he recognized the sound of the car because “[i]t had a loud sound to it. Like a bad muffler... .” He also indicated that the car sped off in the direction of Martin‘s trailer.
In addition to this testimony, the state introduced into evidence a pocketknife seized from the defendant when he was
It is obvious that Rudy Martin‘s testimony was crucial to the state‘s case. It was his testimony which indicated that the defendant had left that evening with his uniform in a paper bag; that he had returned later that night without his uniform to gather his belongings and vacate the trailer; and that he left in a car that “looked like a Cadillac.” Martin‘s testimony tied together several elements of the state‘s case and was an important link in the chain of circumstantial evidence upon which the case against the defendant was based. Martin‘s testimony at trial, however, was far from consistent.
Martin suffers from a learning disability. He testified at trial that he sometimes has trouble remembering things and expressing himself. At a competency hearing held outside the presence of the jury, the court determined that Martin was competent to testify and could give truthful testimony. The court, however, called Martin as a court witness “in the interest of justice” to allow both sides some latitude in asking leading questions because of Martin‘s problems with expressing himself.
It is clear from our reading of Martin‘s testimony that he was highly susceptible to suggestion. On direct examination, Martin testified that he “saw [the defendant] put the uniform in the bag” just prior to the defendant leaving for work with the paper bag on February 24, 1981. In addition, Martin testified that the car outside his trailer when the defendant later returned “looked like it was a Cadillac” because “[i]t had long, skinny taillights.” On cross-examination, Martin testified that the defendant “walked out with a paper bag and I saw him put something in it. I don‘t know what he put in it. It could have been the uniform. It could have been something else.” With regard to the car, Martin testified on cross-examination as follows:
Q. Isn‘t it true that you told the police that you didn‘t know what type of car it was?
A. I didn‘t know at the time, no.
Q. So at that time you didn‘t know what type of car it was?
A. I knew it was a Cadillac that [the victim] had.
Q. But you didn‘t know what type of car you thought [the defendant] might have driven away in; did you?
A. No.
... .
Q. You testified a minute ago that you know — knew for a fact that it was a Cadillac; right?
A. Yes, it was a Cadillac.
Q. But you just testified that you didn‘t know what type of car it was; right?
A. Yeah.
Q. So you don‘t know; do you?
A. No.
On re-direct, the following colloquy took place:
Q. Did you see [the defendant] pick up a brown uniform and put it in a bag?
A. Yes.
... .
Q. Okay, Rudy, my question is: Did you see [the defendant]?
A. Yes, I saw him. I don‘t know if he put the top or bottom in the bag.
Q. But you saw him put the uniform in the bag?
A. Yes.
Q. You‘re sure about that?
A. Yes.
Q. Positive?
A. Yeah. Q. Were you mistaken a few moments ago when you told [defense counsel] that you weren‘t sure what was in the bag?
A. Yes, sir.
Q. You‘re sure now?
A. Yes, sir.
On re-cross-examination:
Q. But you don‘t know what he put in that bag?
A. I think it was a uniform.
Q. But you don‘t know; do you?
A. I think it was a uniform.
Because of Martin‘s obvious susceptibility to suggestion, defense counsel during cross-examination raised an implication that the police, when initially questioning Martin, may have unwittingly planted certain information in Martin‘s mind which at trial he remembered as fact.
In an attempt to bolster Martin‘s credibility, therefore, the state called Detective Parmenter as a witness immediately after Martin and elicited from the detective statements Martin had given to him on the morning following the homicide. Over the defendant‘s objection, Parmenter testified that he had spoken with Martin on the morning after the homicide and Martin had told him that the defendant had picked up his uniform and put it in a plain pаper bag and left with the bag for work the evening before. In addition, Parmenter testified that Martin had told him that on the defendant‘s second departure from the trailer that night, the defendant had left in a car with long taillights like a Cadillac.
Prior to the admission of this testimony, defense counsel objected, apparently on the unstated ground of hearsay. The objection was initially sustained and counsel for both the state and the defendant went into a discussion with the court at side-bar. During this side-bar conference, the state argued to the trial court that the testimony was admissible as a prior consistent statement under
The well established rule in Florida is that a witness’ trial testimony may not be corroborated by his own prior consistent statement. Van Gallon v. State, 50 So.2d 882 (Fla. 1951); McElveen v. State, 415 So.2d 746 (Fla. 1st DCA 1982); Holliday v. State, 389 So.2d 679 (Fla. 3d DCA 1980); Perez v. State, 371 So.2d 714 (Fla. 2d DCA 1979); Lamb v. State, 357 So.2d 437 (Fla. 2d DCA 1978); Brown v. State, 344 So.2d 641 (Fla. 2d DCA 1977); Roti v. State, 334 So.2d 146 (Fla. 2d DCA 1976); Kellam v. Thomas, 287 So.2d 733 (Fla. 4th DCA 1974); Allison v. State, 162 So.2d 922 (Fla. 1st DCA 1964); Jackman v. State, 140 So.2d 627 (Fla. 3d DCA 1962). The purpose behind the evolution of this rule was stated by the court in Allison:
The salutary nature and the necessity of such a rule are clearly apparent upon reflection in cases like the present, for without that rule a witness‘s testimony could be blown up out of all proportion to its true probative force by telling the same story out of court before a group of reputable citizens, who would then parade onto the witness stand and repeat the statement time and again until the jury might easily forget that the truth of the statement was not backed by those citizens but was solely founded upon the integrity of the said witness. This danger would seem to us to be especially acute in a criminal case ... when the ... previous out-of-court statement is repeated before the jury by... law enforcement officers.
162 So.2d at 924. In Perez, the court also recognized this particularly acute danger:
The rationale prohibiting the use of prior consistent statements is to prevent “putting a cloak of credibility” on the witness‘s testimony. [citation omitted]
When a police officer, who is generally regarded by the jury as disinterested and objective and therefore highly credible, is the corroborating witness, the danger of improperly influencing the jury becomes particularly grave.
As with most “general” rules, the inadmissibility of prior consistent statements has been subject to exceptions. It has been generally held that when an attempt has been made to impeach the credibility of a witness, and the basis of the impeachment is such that, in fairness to the witness, evidence of a prior consistent statement would tend to weaken or destroy the force of the impeaching evidence, an exception to the general rule was applicable. Kellam, 287 So.2d at 734. Thus, exceptions to the general rule developed with regard to cases where the impeachment was based upon: recent fabrication; bias, interest, corruption or other motive to falsify when the prior consistent statement was made before the existence of the motive; and prior inconsistent statements when there was an issue of whether the prior inconsistent statement was ever actually made. See Kellam. With the adoption of the Florida Evidence Code, the exceptions became the rule. See
A statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement and the statement is:
.....
Consistent with his testimony and is offered to rebut an express or implied charge against him of improper influence, motive, or recent fabrication. .. .
After reviewing the cross-examination and the testimony of the declarant, Martin, we find that there was an implied charge of improper influence by the poliсe upon Martin,2 but only in one exchange that occurred on re-cross-examination:
Q. Did the police tell you there was a Cadillac?
A. No.
Q. They didn‘t tell you it was a Cadillac?
A. No.
Thus, defense counsel implied to the jury that Martin‘s memory of the actual facts might be tainted by discussions with police that took place prior to the statement he gave to them.3
Although there was an implied charge of improper influence, this does not necessarily make Martin‘s prior consistent statement admissible.
Accordingly, we find it was error to admit Detective Parmenter‘s testimony which recited Martin‘s statement made to the detective
In addition, Martin is the only witness to testify that the defendant drove back to and away from their trailer in a Cadillac on the night of the murder. This testimony is critical because it connects the defendant to the victim‘s car which was stolen just after the murder. The victim‘s neighbor testified that he heard a gunshot and that soon thereafter he heard the victim‘s Cadillac crank up. Although this witness testified that the Cadillac was driven in the direction of the defendant‘s trailer, he never identified the driver or indicated that the Cadillac stopped at the defendant‘s trailer. It is only Martin‘s testimony that puts the defendant in the Cadillac.
It was precisely these two areas of Martin‘s testimony that were corroborated by the detective‘s testimony as to Martin‘s prior statement. The detective‘s testimony had the effect of placing a cloak of credibility on Martin‘s testimony for the state. The proof of guilt against the defendant was not so overwhelming that the еrror committed can be deemed harmless.4 See Preston.
The defendant also alleges error in the trial court‘s denial of his motion to suppress the victim‘s pocketknife which was seized from the defendant‘s possession incident to his arrest in New York. The facts relevant to this point are undisputed. The murder victim‘s body was discovered a short time after 12:30 a.m., February 25, 1985. Detective Parmenter, the lead Miami investigator on the case, arrived at the scene at approximately 2:00 a.m. The initial investigation consisted of a physical examination of the trailer in which the body was discovered and the surrounding vicinity, as well as interviews with neighbors in the area. Without detailing the evidence and information acquired again, suffice it to say that the defendant became a suspect during this initial on-the-scene police investigation and probable cause arose to arrest the defendant. Parmenter thereafter learned that the defendant had probably rеturned to New York where he had family. Accordingly, Parmenter subsequently had two telephone conversations with New York detectives in which he advised them that the defendant was a suspect in the homicide,5 and requested them
Although Parmenter did not state that a warrant had been issued nor specifically request that the New York authorities arrest the defendant, such was the interpretation made by the New York authorities. Officer Schreiner, one of the New York policemen involved in the defendant‘s arrest, testified that he was told at roll call that a warrant had been received from Florida and that the defendant was wanted in connection with a homicide. In addition, a notice to this same effect had been posted in the squadroom. Officer Elkowich, the other officer involved in the arrest, testified that he was told during roll call that the defendant was wanted by the Dade County Police Department for homicide.
Aftеr receiving a tip that the defendant was at his home, Elkowich and Schreiner proceeded to the defendant‘s residence. Elkowich went to the rear of the residence and Schreiner to the front. Schreiner knew the defendant prior to this incident, and recognized him as he and his brother-in-law walked out through the front door. Schreiner pulled his revolver, walked toward the defendant, and told the defendant he was under arrest. At this point, the defendant‘s brother-in-law stepped between the officer and the defendant, and the defendant began running up a flight of stairs toward his apartment. Upon observing the defendant make a threatening motion, Schreiner fired several shots at him and began pursuit. The defendant went through his apartment and began exiting out a back window where Elkowich, who had heard the shots, ordered the defendant to stop. After the defendant failed to heed a number of orders to halt, Elkowich fired several shots at him, and the defendant fell bаck into the apartment. Elkowich then entered the apartment through the rear window and found the defendant lying on a bed with a gunshot wound to his left leg. A number of items were seized in the immediate vicinity of the defendant including the pocketknife at issue here. This pocketknife was identified at trial as belonging to the murder victim.
The state‘s position is that the pocketknife was legally seized incident to the lawful arrest of the defendant. The issue, therefore, is whether the warrantless arrest of the defendant was proper. The circumstances here necessitate the application of the “fellow officer” rule.
The fellow officer rule, sanctioned by the Supreme Court in Whiteley v. Warden, Wyoming State Penitentiary, 401 U.S. 560, 568, 91 S.Ct. 1031, 1037, 28 L.Ed.2d 306 (1971), allows an arresting officer to rely upon the strength of a directive or bulletin on a suspect and assume probable cause exists to arrest the particular person identified in the bulletin. Thus, the arresting officer is not required to have sufficient firsthand knowledge to constitute probable cause.
It is sufficient if the police officer initiating the chain of communication either had first hand [sic] knowledge or received his information from some person, official source or eye witness, who it seems reasonable to believe is telling the truth.
Crawford v. State, 334 So.2d 141, 142 (Fla. 3d DCA 1976). See also Salas v. State, 246 So.2d 621, 622 (Fla. 3d DCA 1971) and cases cited. See generally 1 W. LaFave, Search and Seizure § 3.5(b) (1978). Cf. United States v. Hensley, 469 U.S. 221, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985) (applying the same theory in a Terry stop situation).
Under the fellow officer rule, the arresting officers in New York in the present case were entitled to assume that the officers requesting aid had sufficient information to constitute probable cause to arrest the defendant. See Whiteley, 401 U.S. at 568, 91 S.Ct. at 1037; Crawford; Salas. See also Routly v. State, 440 So.2d 1257, 1261 (Fla. 1983), cert. denied, 468 U.S. 1220, 104 S.Ct. 3591, 82 L.Ed.2d 888 (1984); Cummings v. State, 378 So.2d 879 (Fla. 1st DCA 1979), cert. denied, 386 So.2d 635 (Fla. 1980); Nelson v. State, 188 So.2d 353
The defendant argues, however, that the fellow officer rule does not apply here because Parmenter did not specifically request the New York authorities to arrest the defendant. We reject this argument. Parmenter contacted the New York authorities on two occasions and informed them that the defendant was not only the prime suspect in the homicide involved in this case but also in a separate unrelated murder case.8 There was no request to have the defendant arrested because at the time of the communications it was apparently not verified that the defendant was in New York. Thе obvious intent of the communications was that if the defendant were located, he should be arrested and detained for questioning in connection with the homicide committed in Dade County, Florida. This was precisely the manner in which the New York authorities interpreted the communications. Although we agree that there must be some chain of communication between the arresting officer and the officer who has the probable cause to arrest, we refuse to impose a hyper-technical requirement that certain “magic words” must be used before the fellow officer rule is applicable.9
Accordingly, the trial court did not err in denying the motion to suppress the pocketknife seized incident to the lawful arrest of the defendant. The court did commit reversible error, however, by allowing the prior consistent statement into evidence. Therefore, the defendant‘s convictions are reversed and this cause is remanded for a new trial.10
BASKIN, J., concurs.
FERGUSON, Judge (dissenting).
The only “noncumulative” evidence furnished by Martin, a court witness, was that the defendant left in plainclothes for his job at Sambo‘s (where he customarily wears a uniform), with his uniform in a brown paper bag, and that the defendant returned home without the brown paper bag. The “critical” testimony focused on whether Martin was absolutely sure that what the defendant was carrying in the bag was a Sambo‘s uniform — like the one found in the brown bag at the homicide scene. Nowhere in the record is it disputed that the bagged uniform found at the homicide scene belonged to the defendant. I believe that in the course of a microscopic examination of a small tree we have ignored a forest of other circumstantial evidence which points to the defendant as the perpetrator to the exclusion of anyone else.
I would affirm.
On Motion for Rehearing En Banc
PER CURIAM.
This case has been considered en banc without oral argument pursuant to
On the merits, we agree with the dissenting panel opinion that, considered in the light of the recоrd as a whole, any error in this respect was, indeed, no more than harmless. State v. Murray, 443 So.2d 955 (Fla. 1984); Palmes v. State, 397 So.2d 648 (Fla. 1981), cert. denied, 454 U.S. 882, 102 S.Ct. 369, 70 L.Ed.2d 195 (1981);
We endorse the panel‘s rejection of the defendant‘s remaining point on appeal. The judgment under review is therefore
Affirmed.
SCHWARTZ, C.J., and BARKDULL, HENDRY, FERGUSON and JORGENSON, JJ., concur.
DANIEL PEARSON, Judge, concurring.
The admission of the witness Martin‘s statements to the police given on the morning after the crime was, in my view, not error at all, and, moreover, the defendant‘s claim of error was not preserved by appropriate objection in the trial court.
The defense insinuated in its questioning of Martin and Detective Parmenter that Martin‘s trial testimony as well as his
My concern is that the en banc majority‘s “harmless error” holding gives precedential value to Judge Nesbitt‘s panel opinion, which concludes that it was error to admit Martin‘s statements to the police as prior consistent statements under
Finally, as I have already noted, see supra note 1, there simply was never any timely objection to the introduction of Martin‘s statement to the police, much less a hearsay objection.
During Martin‘s direct testimony, he told of being awakened by the police and giving them a statement.
“Q Now do you remember what type of statement you gave them?
“A Yes, sir.
“Q Why don‘t you describe what type of statement you gave?
“A The same one I just gave. The same one you got on your records just about. No change in it.” (emphasis supplied)
The defendant did not object to the prosecutor‘s questions, or move to strike the witness‘s answers despite the fact that here, and later, see supra note 1, the witness was testifying about his prior consistent statement. Indeed, it was not until
Of course, in this case, it is perfectly understandable that the defendant did not object. It was the defendant himself whose strategy it was to prove that the witness‘s trial testimony and the witness‘s statement to the police, although consistent with one another, were products of police suggestions made before the statement was given and that both were therefore equally unworthy of belief. Thus, as defendant‘s trial counsel undoubtedly recognized, proof that Martin‘s trial testimony and his statement to the police were consistent did nothing to advance the prosecution‘s case and much for the defendant. The efforts of defendant‘s appellate counsel to move this court away from the reality of the trial, although creative, have already met with far more success than they deserve.
SCHWARTZ, C.J., and JORGENSON, J., concur.
HUBBART, Judge (dissenting).
I must respectfully dissent from the court‘s decision to rehear this cause en banc. I would deny the state‘s motion for rehearing en banc because, in my view, we have no en banc jurisdiction to entertain this cause under
I
In accord with our authority to announce conflict-type en banc standards, this court has held that en banc review is “necessary to maintain uniformity in the court‘s decisions“,
II
Turning to the instant case, all agree that the case here is not of “exceptional importance,” and, accordingly, the first ground for en banc review under
First, the panel opinion, without dispute, does not announce or even intimate a rule of law which conflicts, or is out of harmony, with a rule of law announced by a previous decision of this court. Second, the panel opinion does not apply a rule of law to produce a different result in a case which involves substantially the same controlling facts as a prior case disposed of by this сourt. The facts of Jones v. State, 453 So.2d 1192 (Fla. 3d DCA 1984), the claimed “conflicting” decision herein, are not even remotely similar to the facts of this case. In Jones, the defendant was convicted of sexual battery, burglary and other offenses; the state introduced at trial certain “other crimes” evidence tending to show that a co-defendant had sexually assaulted the victim. We concluded that the error in admitting this evidence was entirely harmless in view of the overwhelming evidence of guilt introduced at trial, including a complete confession by the defendant. We in no way dealt with an application of the harmless error rule, as here, to a claimed erroneous admission of prior consistent statements by a state witness. Finally, given the total dissimilarity between the facts and issue presented in the instant case and the facts and issue presented in Jones, as well as the lack of any divergent rules of law announced by the court in either case, it cannot be said that the panel opinion herein has misapplied the harmless error rule in this district so as to create disharmony or instability in our precedents. As indicated previously, the entire purpose underlying the en banc rule is to avoid just such disharmony, and it is plain that the panel decision creates no disharmony or instability whatever with Jones or any other prior decision of this court. Moreover, the court makes no effort whatever to justify its assumption of en banc jurisdiction on a principled basis in this case.
Nonetheless, I recognize that the court‘s decision herein does not represent an aberrant assumption of en banc jurisdiction in this district. Indeed, the instant decision is one of a continuing line of decisions in which this court has assumed en banc jurisdiction in a case without regard to our established en banc standards. We have, for example, assumed en banc jurisdiction in a case solely in order to approve a three-judge panel opinion rendered in the sаme cause without relying on any ground for en banc review under
This disturbing line of decisions, of which the instant case is a graphic example, should give us good reason to pause. What is emerging in this district is, in effect, a second en banc appeals court which reviews the merits of panel decisions — affirming some, reversing others, and assuming en banc jurisdiction whenever a majority of the judges of this court think it advisable to do so, without regard to the established grounds for en banc jurisdiction under
BASKIN, J., concurs.
NESBITT, Judge (dissenting):
I respectfully dissent from the court‘s en banc resolution of the case for three reasons.
First, Judge Pearson‘s concurrence improperly relinquishes to the jury a portion of the trial judge‘s time-honored role in determining admissibility. A prior consistent statement is admissible under
Second, I disagree with Judge Pearson‘s waiver analysis. While it is true that the defendant allowed Martin to briefly mention his prior consistent statement, I do not believe that precluded him from objecting to the police officer‘s testimony about specifics of the statement. Martin had been soundly impeached. Defense counsel clearly decided that Martin‘s brief mention of the prior statement did not accomplish much rehabilitation. He could very well have decided otherwise with regard to the officer, a strong, objective witness who could influence the jury and who testified about critical details of the statement.2
Finally, I disagree with the majority‘s conclusion that the error was harmless. The evidence of the defendant‘s guilt is entirely circumstantial. That circumstantial evidence is tied together by the testimony of a court witness of limited intellectual capacity who was soundly impeached and repeatedly contradicted himself. The weakness of the state‘s case is highlighted by the jury‘s lengthy deliberаtions and their verdict of third-degree murder on an indictment charging first-degree murder. Application of the harmless error rule in this context requires this court‘s speculation as to what the jury would have done absent the bolstering of Martin‘s testimony by Detective Parmenter. In such a case, the error is not harmless and can only be remedied by a new trial.
Accordingly, I would deny the motion for rehearing en banc and reverse the conviction.
BASKIN, J., concurs.
ON MOTION FOR REHEARING
PER CURIAM.
Carroll‘s motion for rehearing correctly points out that, having affirmed his conviction, the en banc court is required to pass upon the alleged sentencing errors the panel majority opinion of reversal had found unnecessary to reach.
In reviewing these issues, we first agree that the verdict returned by the jury as to the robbery count, finding the defendant guilty of “armed robbery without a firearm,” does not permit the imposition of a life sentence under
We also conclude that the consecutive three-year minimum mandatory terms must be made concurrent. State v. Palmer, 438 So.2d 1 (Fla. 1983).
In all other respects, the motion for rehearing is denied.
HUBBART, Judge (dissenting).
Because this court has utterly no jurisdiction to entertain this cause on an en banc basis under
Notes
“Q Rudy, do you remember the day after John [Carroll] left, the police came and talked to you?
“A Yes.
“Q You remember the police asked you a bunch of questions?
“A Yeah.
“Q It was about nine hours after this incident occurred?
“A Yeah.
“Q The police ever tell you what to say?
“A No.
“Q Did the police tell you anything about the uniform?
“A No.
“Q Did you tell the police that you saw John Carroll put the uniform in the bag?
“A Yeah.
“Q Nine hours after it happened?
“A I think so.”
Detective Parmenter‘s testimony, also admitted without objection, was:
“Q Now, prior to taking the statement from Mr. Martin, did you provide him with any information with regard to the case that you were investigating?
“A When I originally met him early that morning, I advised him we were investigating the death of a person named Edward Ward.
“Q Did you provide him with any additional aspects of the case?
“A No.”
For example, this court, sitting en banc, has issued en banc opinions without giving any notice or an opportunity to be heard to the litigants that the case was being considered on an en banc basis, after the case had been fully briefed and orally argued to a three-judge panel. Nance v. Johns-Manville Sales Corp., 466 So.2d 1113 (Fla. 3d DCA 1985) (en banc); Joseph v. State, 447 So.2d 243 (Fla. 3d DCA 1983) (en banc). We have also assumed en banc jurisdiction to reverse a proposed, but unreleased panel opinion joined in by all three judges of the panel, which opinion was totally unknown to the litigants, Jones v. State, 466 So.2d 301 (Fla. 3d DCA 1985) (en banc), aff‘d, 485 So.2d 1283 (Fla. 1986). A number of other jurisdictions have held likewise when the statement is offered either for rehabilitative purposes or as substantive evidence. See State v. Martin, 135 Ariz. 552, 663 P.2d 236 (1983); George v. State, 270 Ark. 335, 604 S.W.2d 940 (1980); State v. Dolphin, 178 Conn. 564, 424 A.2d 266 (1979); Crawford v. State, 139 Ga. App. 347, 228 S.E.2d 371 (1976); People v. Faysom, 131 Ill. App.3d 517, 86 Ill.Dec. 566, 475 N.E.2d 945 (1985); State v. Scott, 210 Kan. 426, 502 P.2d 753 (1972); State v. Hebert, 480 A.2d 742 (Me. 1984); Coleman v. State, 49 Md. App. 210, 431 A.2d 696 (1981); Commonwealth v. Binienda, 20 Mass. App. 756, 482 N.E.2d 874 (1985); People v. Edwards, 139 Mich. App. 711, 362 N.W.2d 775 (1985); State v. Arndt, 285 N.W.2d 478 (Minn. 1979); Smith v. State, 100 Nev. 471, 686 P.2d 247 (1984); People v. Davis, 44 N.Y.2d 269, 376 N.E.2d 901, 405 N.Y.S.2d 428 (1978); Wall v. Zeeb, 153 N.W.2d 779 (N.D. 1967); State v. Thompson, 379 N.W.2d 295 (S.D. 1985); State v. Jones, 215 Tenn. 206, 385 S.W.2d 80 (1964); McInnes v. Yamaha Motor Corp., 673 S.W.2d 185 (Tex. 1984), cert. denied, 469 U.S. 1107, 105 S.Ct. 782, 83 L.Ed.2d 777 (1985); State v. Walker, 38 Wash. App. 841, 690 P.2d 1182 (1984); Thomas v. State, 92 Wis.2d 372, 284 N.W.2d 917 (1979). The federal courts have reached a variety of conclusions on the issue. United States v. De Coito, 764 F.2d 690 (9th Cir.1985) (prior consistent statement is admissible to rehabilitate if made before the motive to fabricate); United States v. Harris, 761 F.2d 394 (7th Cir.1985) (a prior consistent statement does not have to be made before the motive to fabricate if admitted to rehabilitate) United States v. Wilkinson, 754 F.2d 1427 (2d Cir.) (prior consistent statement only admissible if made before the improper influence or motive to fabricate), cert. denied, 105 S.Ct. 3482, 87 L.Ed.2d 617 (1985); United States v. Feldman, 711 F.2d 758 (7th Cir.) (prior consistent statement admissible as substantive evidence if it meets the requirements of(2)(a) If in the course of committing the robbery the offender carried a firearm or other deadly weapon, then the robbery is a felony of the first degree, punishable by imprisonment for a term of years not exceeding life imprisonment or as provided in s. 775.082, s. 775.083, or s. 775.084.
(b) If in the course of committing the robbery the offender carried a weapon, then the robbery is a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.