No. 90-1743 | Fla. Dist. Ct. App. | Nov 20, 1991
Lead Opinion
ON MOTION FOR REHEARING
We grant the motion for rehearing because of an error in our description of the facts and substitute the following as our opinion:
During trial, a police officer testified before the jury that an informant had indicated to him that the defendant was the culprit who committed the murder. We conclude, under the facts of this case, that the erroneous admission of this hearsay evidence was harmless error.
We agree that error occurred under Harris v. State, 544 So. 2d 322" court="Fla. Dist. Ct. App." date_filed="1989-06-07" href="https://app.midpage.ai/document/harris-v-state-1771708?utm_source=webapp" opinion_id="1771708">544 So.2d 322 (Fla. 4th DCA 1989) and State v. Baird, 572 So. 2d 904" court="Fla." date_filed="1990-11-29" href="https://app.midpage.ai/document/state-v-baird-1116997?utm_source=webapp" opinion_id="1116997">572 So.2d 904 (Fla.1990), when this hearsay testimony was admitted over objection. However, there were five independent eyewitnesses present at the murder scene. Three of the eyewitnesses testified at trial that it was the defendant who committed the murder. Moreover, a police officer testified, without objection, that the two other eyewitnesses identified the defendant as the culprit during a photographic lineup. The evidence of guilt was overwhelming, and we hold beyond a reasonable doubt, that the error did not affect the verdict.
As to Judge Anstead’s comment in his dissent about change in appearance, we would, for example, point out that all five eyewitnesses picked the defendant out of a photographic lineup. This lineup was con
AFFIRMED.
Dissenting Opinion
dissenting.
I cannot find the error to be harmless. Although it is true that the boys accompanying the victim identified the appellant in a photographic lineup conducted three (3) weeks after the incident, it is also true that appellant’s physical dimensions and appearance were completely different than the description these same boys gave to the police immediately after the crime. In addition, there was no physical evidence to connect appellant to the crime. He was not connected to any vehicle similar to the one the boys said the assailant occupied, and no gun was found. Finally, appellant presented a substantial alibi defense through the testimony of several witnesses specifically accounting for his activities on the date of the crime. Based upon this testimony, a jury could have found a reasonable doubt. I cannot conclude beyond a reasonable doubt that the informant’s fingering of appellant did not play a role in his conviction. State v. Lee, 531 So. 2d 133" court="Fla." date_filed="1988-09-01" href="https://app.midpage.ai/document/state-v-lee-1150144?utm_source=webapp" opinion_id="1150144">531 So.2d 133 (Fla.1988); State v. DiGuilio, 491 So. 2d 1129" court="Fla." date_filed="1986-07-17" href="https://app.midpage.ai/document/state-v-diguilio-1807773?utm_source=webapp" opinion_id="1807773">491 So.2d 1129 (Fla.1986).