Summary
holding that the testimony of the complaining witness, although "argumentative, inconclusive, conflicting and appear[ing] in certain instances to be unbelievable" does not, by itself, warrant reversal "because the jury is at liberty to believe what they choose and disbelieve what they choose," but reversing for a new trial because of additional errors
Summary of this case from State v. ShearodOpinion
Nos. 72-272, 72-351.
February 16, 1973.
Appeal from the Court of Record, Hillsborough County, W. Rogers Turner, J.
W. Daniel Kearney, Asst. Public Defender, Bradenton, for appellant Walker.
Sam E. Murrell Sons, Orlando, for appellant Jackson.
Robert L. Shevin, Atty. Gen., Tallahassee, and Charles Corces, Jr., Asst. Atty. Gen., Tampa, for appellee.
Appellants, William Walker and Charles L. Jackson, were charged with the offense of robbery and the use of firearms in the commission of a felony. The case was tried to a jury who returned a verdict of guilty. Both appellants were represented by co-counsel and have appealed. They assign as error the same points and we have consolidated the appeals for the purposes of this opinion.
Appellants urge that there was insufficient evidence as a matter of law to sustain the convictions; that hearsay testimony was admitted regarding the commission of another offense that same night; that certain remarks made by the prosecutor were improper and that the entire trial constituted a miscarriage of justice and should be reversed.
We have studied the record in this case and have concluded that the defendants were denied a fair trial, and in the interest of justice the convictions should be reversed and the case remanded for a new trial.
The testimony of the complaining witness, an injured Vietnam war veteran, is argumentative, inconclusive, conflicting and appears in certain instances to be unbelievable. This in and of itself would not warrant a reversal because the jury is at liberty to believe what they choose and disbelieve what they choose.
The evidence of a separate crime constituted rank hearsay. Officer Henry testified that he was interviewing a certain Richard Holden and Richard Holden told him that he had seen the defendant's car where another crime was being perpetrated that same night. Mr. Holden was not allowed to testify. Even if this testimony were not hearsay, it was not admissible pursuant to Williams v. State, Fla. 1959, 110 So.2d 654. The testimony was not in detail. It did not show a pattern, motive or manner of operation and the supposed victim was not allowed to testify.
The case was a hard fought one from both sides. Accusations and cross-accusations became almost a feature of the trial. This alone would not in and of itself constitute reversible error. However, having read the entire record, viewed the evidence adduced from the victim and the behavior of the prosecutor and the defense counsel and coupled with the hearsay testimony admitted as "Williams Rule" testimony, we have concluded that the defendants did not receive a fair trial under our Constitution.
Reversed and remanded for a new trial.
McNULTY, J., concurs.
MANN, C.J., concurs specially.
I do not find the complaining witness' testimony anywhere near incredible. The prosecutor's gross misunderstanding of the rule excluding such rank hearsay as was offered here, is incredible.