Westley v. StateWestley v. State
Appellant, who was convicted of second degree murder, appeals his judgment of
Detective Parmenter testified that following his arrest appellant admitted having possession of the knife which was recovered at the sсene of the homicide, but that he had tripped over a loose shoelace and fell into the deсeased, and did not know that he had stabbed him until the next morning when he was told that the victim had died. This statement was written down by the detective as appellant made it orally. It was then corrected and signed by appellant. At trial, following a proffer during which the court found the statement to be voluntary, the prosecutor asked the detective to relate to the jury his recollection of the contents of appellant‘s statement. He did so, reciting the statement virtually verbatim. The prosecutor then offered the statement into evidence, and it was admitted. Upon the prosecutor‘s request that the witness read the statement to the jury, defense counsel objеcted on the grounds that the reading of the statement would be repetitious. The trial judge overruled the objection, stating, “[w]hen he was reciting the contents of the statement earlier, it was from recollection or memоry, and now that statement is in evidence. I will permit Detective Parmenter to read verbatim the statement that wаs made.” Appellant contends that the trial court abused its discretion by allowing the prosecutor to introduсe, over objection, the repetitious and cumulative evidence regarding appellant‘s statement, with the resulting prejudice that the minds of the jurors were indelibly etched with the details contained in the statement. Although no case law directly in point is cited, appellant contends that Section 90.403, Florida Evidence Code, рrohibits the “needless presentation of cumulative evidence.”
We agree with appellant‘s argument that the triple presentation of his statement was overly repetitious. We note, however, that Section 90.403 provides, in part:
Relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair рrejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence.
As this court noted in Smith v. State, 404 So.2d 167 (Fla. 1st DCA 1981), the аpproach expressed in Section 90.403 is in agreement with the Federal Rules of Evidence and federal case law. Committee notes to federal rule 403 explain: “`Unfair prejudice’ within its context means an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.” Wе agree with the state‘s contention that appellant‘s statement was not worded so as to evoke а particularly emotional response from the listener or reader, or to suggest to the jury any other improper basis for its decision. There is no contention that the witness‘s recitation of the statement was inacсurately or misleadingly presented, nor did appellant request a mistrial or curative instruction on this issue. See, generally, Clark v. State, 363 So.2d 331 (Fla. 1978).
As to the sеcond point, appellant contends that the prosecutor‘s closing argument went beyond permissible bounds in reference to the non-necessity for proof of a motive for the killing,1 and reference to cеrtain inferences concerning possible defenses to the killing as “smoke screens.” At a sidebar conference following defense counsel‘s objections to these remarks, the
The judgment of conviction and sentence for the offense are AFFIRMED.
JOANOS and THOMPSON, JJ., concur.