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holding that evidence that another person admitted to committing the crime for which Ards was charged was inadmissible under section 90.804(c) because the corroborating circumstances "were ambiguous, unreliable and not trustworthy"
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No. 83-934.
November 1, 1984.
Appeal from the Circuit Court, Volusia County, S. James Foxman, J.
James B. Gibson, Public Defender, and James R. Wulchak, Asst. Public Defender, Daytona Beach, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Margene A. Roper, Asst. Atty. Gen., Daytona Beach, for appellee.
Ards appeals his convictions for grand theft and resisting arrest without violence. The evidence at trial revealed that a person disguised as a woman and identified at trial as Ards, pointed a gun at a man who had picked him up while hitchhiking and took over $900 from the victim.
Ards contends that the trial court erred in excluding certain defense testimony. In particular, Ards sought to introduce his own testimony that one Blaine Schuller had told him that Anthony Ray Hicks had told him that he had stolen $900. Ards also sought to introduce the testimony of Wilbur Vareen that Hicks had told him he had "clipped a trick" for $900. Prior to trial, defense counsel attempted to depose Hicks and Schuller but they failed to appear. Capiases were issued for their arrest, but neither one was located.
Section 90.804(2)(c), Florida Statutes (1983) pertains to the declaration against interest hearsay exception and renders admissible the following statements if the declarant is unavailable:
A statement which, at the time of its making, was so far contrary to the declarant's pecuniary or proprietary interest or tended to subject him to liability or to render invalid a claim by him against another, so that a person in the declarant's position would not have made the statement unless he believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is inadmissible, unless corroborating circumstances show the trustworthiness of the statement. A statement or confession which is offered against the accused in a criminal action, and which is made by a codefendant or other person implicating both himself and the accused, is not within this exception.
There is no doubt that Hicks' purported statements were declarations against interest and that both Hicks and Schuller were unavailable. We agree with the trial judge, however, who concluded after meticulous consideration that the corroborating circumstances surrounding the statements were ambiguous, unreliable and not trustworthy. Compare Chambers v. Mississippi, 410 U.S. 284, 95 S.Ct. 1038, 35 L.Ed.2d 297 (1973); United States v. Katsougrakis, 715 F.2d 769 (2d Cir. 1983), cert. denied, ___ U.S. ___, 104 S.Ct. 704, 79 L.Ed.2d 169 (1984). See generally United States v. MacDonald, 688 F.2d 224 (4th Cir. 1982), cert. denied, 459 U.S. 1103, 103 S.Ct. 726, 74 L.Ed.2d 951 (1983); United States v. Bagley, 537 F.2d 162 (5th Cir. 1976), cert. denied, 429 U.S. 1075, 97 S.Ct. 816, 50 L.Ed.2d 794 (1977).
The other points raised by Ards have no merit.
AFFIRMED.
SHARP, J., concurs.
COWART, J., dissents with opinion.
Tried on an information charging only the minimal facts alleging a robbery (§ 812.13, Fla. Stat.), Ards was convicted of the supposed lesser included offense of grand theft, a violation of section 812.014(2)(a), Florida Statutes. The grand theft offense was apparently assumed to be, and treated as, a lesser included offense of the charged robbery offense because the schedule of lesser included offenses adopted by the Supreme Court shows grand theft as a Category Two lesser included offense of robbery. Note that the schedule shows only petit theft (§ 812.014(2)(c), Fla. Stat.), to be a Category one (necessarily) lesser included offense of robbery. The charging document in this case did not allege any of the eight facts or set of facts set forth in section 812.014(2)(b), Florida Statutes, the allegation of one of which is absolutely essential to allege a violation of section 812.014(2)(b), Florida Statutes.
See In re Florida Rules of Criminal Procedure, 403 So.2d 979 (Fla. 1981); In re Standard Jury Instructions in Criminal Cases, 431 So.2d 599 (Fla. 1981); In re Standard Jury Instructions in Criminal Cases, 431 So.2d 594 (Fla. 1981).
I dissent because I continue to believe (1) that grand theft is not a necessarily lesser included offense of robbery (see the dissent in Rodriquez v. State, 443 So.2d 236 (Fla. 5th DCA 1983), rev. granted, No. 64,775 ( State v. Rodriquez); (2) that it is a violation of constitutional due process to convict a defendant of a crime not charged; and (3) that such a violation constitutes a fundamental error not subject to implied waiver as a result of the failure of defense counsel to effectively assert the constitutional right or object to its violation before the trial court. See the dissent in Torrence v. State, 440 So.2d 392 (Fla. 5th DCA 1983), and in W.J.W. v. State, 446 So.2d 248 (Fla. 5th DCA 1984). As to the problem with the schedule of permissible lesser included offenses, see note 39 to the dissent in Baker v. State, 425 So.2d 36, at 57 (Fla. 5th DCA 1982), and note 3 to Harrielson v. State, 441 So.2d 691 (Fla. 5th DCA 1983), and the dissenting opinion to State v. Baker, Baker v. State, 456 So.2d 419 (Fla. 1984).