Valley v. StateValley v. State
- Reporters:
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- Before:
- Hazouri, Stone, Shahood
HAZOURI, J.
Darryl Valley was charged with and convicted of one count of strong arm robbery and one count of burglary with assault. We hold that the trial court erred in admitting certain collateral crime evidence and permitting an investigating police officer to testify to the identity of the defendant through the use of hearsay.
The charges against Valley arise from a robbery that occurred on November 27, 1999 next to a drive-through automated teller machine (ATM). At approximately 9:10 p.m., Christy Gentry drove up to the ATM to conduct a transaction. A man in a hooded sweatshirt approached her vehicle and told her, “this is a robbery.” The assailant then got into the back seat of her car and told her to run an account balance. The assailant demanded money and jewelry from Gentry and she complied. Thereafter, the assailant exited the car and fled on foot.
Gentry was unable to identify her assailant due to the fact that his face was partially concealed by the hooded sweatshirt. She could only generally identify the man as a black male, fairly tall, with a “smushed” nose. However, the police were able to obtain fingerprints from the rear window of her car near where the assailant entered.
Approximately a month later, on December 23rd, Officer Steve Powser was conducting surveillance of the ATM and the surrounding area due to prior incidents in the area. He observed a silver vehicle driving slowly by the bank watching a female at the drive-through ATM. Officer Powser stopped the vehicle. Inside the vehicle was Valley and a female companion. They told Officer Powser that they were lost and looking for the mall. While speaking to Valley, Officer Powser observed a hooded sweatshirt in the backseat of the vehicle. Valley was not arrested at that time. However, Officer Powser ran a criminal history check on Valley and obtained a copy of his fingerprints. Valley‘s fingerprints matched the prints taken from the victim‘s vehicle. Charges were then filed against Valley.
Prior to trial, the State filed a Notice of Intent to use evidence of other crimes and bad acts. The State indicated its intent to offer evidence about: 1) charges filed against Valley in another robbery/burglary that occurred at the same ATM on November 23, 1999 (four days before the robbery in the instant case); 2) an attempted robbery that occurred on December 19, 19991; and 3) the incident on December 23, 1999 where Officer Powser observed Valley driving suspiciously around the parking lot next to the ATM. The trial court held a hearing and ultimately determined, over the objection of the defense, that the evidence was admissible.
The State also presented the testimony of Elizabeth Bonet, the victim of the November 23rd robbery. Bonet testified that at approximately 9:45 p.m., she drove up to the same ATM. A man in a hooded sweatshirt rushed up, grabbed her hands and told her to empty out her account. The assailant then proceeded to open up the back door of her car and get into the back seat. After she withdrew money and gave it to him, he exited the car and fled on foot. The victim was unable to identify Valley as her assailant. However, she generally described the assailant as a young black man, approximately 5‘10“, wearing a dark colored hooded sweatshirt.
The State then offered into evidence photographs taken from a camera located at the ATM that had filmed the November 23rd robbery. Detective Michael Jasinski was called to the stand and testified that after he received Valley‘s name as a suspect from Officer Powser, he took a photograph to Valley‘s last known place of employment. He testified that a Mr. Bett, a previous co-worker of Valley‘s, was able to identify the man in the photograph as Valley. Valley objected to this testimony as hearsay. The trial court overruled the objection.
The State‘s final evidence linking Valley to the robbery was Officer Powser‘s testimony regarding the circumstances of December 23rd where he observed Valley driving around the parking lot suspiciously and the subsequent stop. Based on this evidence, the jury found Valley guilty of both counts. He was subsequently sentenced to life in prison.
Valley argues that he is entitled to a new trial because the trial court erred in allowing Detective Jasinski to testify regarding the identification made by Mr. Bett on the basis that it is inadmissible hearsay. He also argues that the trial court erred in allowing evidence relating to the November 23rd robbery and the December 23rd incident with Officer Powser on the basis that it is inadmissible collateral crime evidence.
We first address Detective Jasinski‘s testimony that Mr. Bett identified the man in the photograph of the November 23rd robbery as Valley. Pursuant to
The State argues that even if the admission of the testimony was erroneous, it was harmless error since the photograph itself was admitted into evidence. The State contends that the jury could see for
We next address Valley‘s argument that the trial court erred in allowing testimony and evidence relating to the November 23rd robbery and the December 23rd incident with Officer Powser.
Other crimes, wrongs, or acts.—
Similar fact evidence of other crimes, wrongs, or acts is admissible when relevant to prove a material fact in issue, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, but it is inadmissible when the evidence is relevant solely to prove bad character or propensity.
If the sole relevancy of each of the above incidents to each other is to establish the propensity or bad character of Valley, they are inadmissible.
The material issue sought to be proved by the State‘s notice of intent to use similar fact evidence was the defendant‘s identity. The State sought to prove Valley was the assailant in Gentry‘s case by showing his modus operandi, i.e., the circumstances of both Bonet‘s case and Gentry‘s case.
The mode of operating theory of proving identity is based on both the similarity of and the unusual nature of the factual situations being compared. A mere general similarity will not render the similar facts legally relevant to show identity. There must be identifiable points of similarity which pervade the compared factual situations.
Drake v. State, 400 So.2d 1217, 1219 (Fla. 1981).
A mere general similarity will not render the similar facts legally relevant to show identity. See Chandler v. State, 702 So.2d 186, 192 (Fla.1997). In order for collateral crime evidence to qualify as “similar,” the facts and circumstances must establish a sufficiently unique pattern of criminal activity when all of the common points are considered together. The cumulative effect of the numerous similarities between the two crimes is the establishment of a unique modus operandi which points to the defendant as the perpetrator. Id. at 193.
The admission of evidence relating to the November 23rd robbery was not error. Photographs taken from the surveillance camera of the November 23rd robbery link Valley to the crime. There were many similarities between the two robberies. The robberies took place at the same location, at approximately the same time of night, four days apart from each other. The victims gave similar descriptions of their assailants and both stated that the assailant was wearing a dark colored hooded sweatshirt. In addition, the sequence of events in both robberies was
However, the admission of evidence relating to the December 23rd incident with Officer Powser was error. Officer Powser testified that on December 23rd he was conducting surveillance of the ATM and surrounding area. He observed a silver vehicle containing Valley and a female companion slowly circling the area and acting suspiciously. He stopped the vehicle and while speaking with Valley he observed a hooded sweatshirt in the back seat. There are not sufficient similarities between this incident and the robbery that would make this testimony admissible. The State offered this testimony to place Valley at the scene and to connect him with the hooded sweatshirt. The erroneous admission of collateral crime evidence is presumed prejudicial because of the danger that a jury will take the bad character or propensity to commit a crime as evidence of guilt of the crime charged. In the instant case, this testimony was harmful error. During closing argument, the State argued:
The clincher is what are the chances that this happened? And also, three weeks later, Darryl Valley just happens to be with his girlfriend sitting in the car, who won‘t tell him where the mall is, with a dark sweatshirt on the back seat or a hooded sweatshirt. Going back to that exact ATM. I mean this man was at the ATM. This man was at the ATM. This man was at an ATM.
The State clearly focused on Officer Powser‘s testimony as part of its case. Since the State felt this testimony was “the clincher,” we can hardly say that its admission was harmless beyond a reasonable doubt. We reverse and remand for a new trial.
REVERSED.
STONE and SHAHOOD, JJ., concur.