Hearsay Objections Can’t be Underestimated

In Tindall v. State, 645 So. 2d 129 (Fla. 4th DCA 1994), the case defendant Levon Tindall appealed his conviction for “aggravated assault with a firearm.” His capable appellate lawyer argued that the trial court had erred when it denied his motion for a mistrial after the investigating police officer’s testimony that approximately ten (10) unidentified eyewitnesses told him they saw Mr. Tindall with a shotgun while threatening his neighbor. The appellate court agreed and reversed the conviction.

During the trial, the alleged victim testified that after an argument with Mr. Tindall, defendant went inside his apartment, retrieved a baseball bat and proceeded to beat on the stairs near his neighbor’s apartment. The alleged victim said Mr. Tindall then re-entered his apartment and returned holding a cloth with something concealed under it. Mr. Tindall allegedly pulled back the cloth to reveal a shotgun. The alleged victim said Mr. Tindall pumped the shotgun twice and pointed the gun at him, but eventually lowered the shotgun and retreated. Another resident of the housing complex testified that she saw Mr. Tindall pump the gun twice and aim it at the alleged victim. The investigating officer testified he found a shotgun covered by a white towel in Mr. Tindall’s apartment.

The officer also testified that approximately ten (10) eyewitnesses indicated to him that they had all seen Mr. Tindall point the shotgun at his neighbor. During the trial, the officer testified, “Yes, sir, [the shotgun] was described to us by the witness and some other individuals that refused to give their names. …They all stated he did have a gun. And he pointed the gun at the victim and he did state he was going to kill him. But in that area — See, that area, you don’t — a lot of people don’t want to get involved.”

Defense counsel moved to strike the answer and moved for a mistrial.

The trial court denied the defense motion for mistrial, granted the motion to strike and instructed jurors to disregard the testimony relating to the observations of unidentified eyewitnesses. On redirect, the officer again testified regarding the observations of the unidentified eyewitnesses, and also volunteered: “They actually saw what happened.” The trial court ordered the comment to be stricken, but again denied a defense motion for mistrial.

The prosecution could not dispute that the investigating officer’s testimony regarding the unidentified witnesses’ observations was “hearsay” as defined by Florida Statute. The officer’s testimony as to what the unidentified eyewitnesses allegedly saw was not responsive to any question.

The court did not buy the state argument that the error was “harmless” because the hearsay was “cumulative” to the other eyewitness testimony because “Juries generally regard police officers as disinterested, objective and highly credible, and thus their testimony is particularly capable of improperly influencing the jury.”

Tindall at 131 (quoting Kendrick v. State, 632 So. 2d 279 (Fla. 4th DCA 1994)). As the police officer’s testimony as to the observations of the unidentified eyewitnesses became a feature of the trial, the appellate court could not conclude beyond a reasonable doubt that the officer’s hearsay testimony did not affect the verdict. Id. at 131 (citing State v. DiGuilio, 491 So.2d 1129, 1138 (Fla. 1986)).

The higher court reversed and sent the case back to the lower court for a new trial.

Moral of this story about a hard fought win: the “system” works when the criminal defense lawyer “knows his stuff.” But for the trial lawyer who moved for mistrial after catching the “hearsay” from ten (10) unidentified eyewitnesses and preserved the issue for appeal, there would have been no win. But for the appeals lawyer arguing to the appeals panel persuasively, there would have been no win.