DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
ALVIN DUNBAR,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D13-3255
[November 1, 2017]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Paul L. Backman, Judge; L.T. Case No. 12014154CF10A.
Carey Haughwout, Public Defender, and Emily Ross-Booker, Assistant
Public Defender, West Palm Beach, for appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Cynthia L.
Comras, Assistant Attorney General, West Palm Beach, for appellee.
SMALL, LISA, Associate Judge.
The defendant appeals his conviction and sentence for robbery. He
raises four grounds to reverse his conviction and remand for a new trial:
(1) the trial court committed reversible error in admitting the lead
detective’s testimony that he spoke to the victim’s homeless shelter case
manager who verified that the victim was employed and regularly drug
tested; (2) the trial court committed fundamental error in giving the
standard jury instruction 3.10, which implied the possibility of a light
sentence; (3) the trial court committed reversible error in sentencing the
defendant within the lawful sentencing range but failing to articulate its
reasons for imposing the sentence; and (4) the Prison Release Reoffender
statutory scheme is unconstitutional. Finding merit on the first issue, we
address the first issue only and do not address the remaining issues.
We find that the trial court erred in admitting the victim’s case
manager’s statements through the lead detective’s testimony because the
statements were inadmissible hearsay not subject to any hearsay
exception. On appeal, the State conceded that it was error to admit the
inadmissible hearsay but contended that the error was harmless. We find
to the contrary. Because the State’s case was entirely dependent upon the
victim’s credibility, and these hearsay statements corroborated and
bolstered the victim’s testimony, the State cannot establish that the error
was harmless beyond a reasonable doubt. Therefore, we reverse the
conviction and remand for a new trial.
Facts and Procedural History
The State charged Dunbar and his co-defendant with one count of
robbery.
At trial, the victim testified that he had been living at the Salvation
Army homeless shelter for four to five months and that he had two jobs to
pay his rent. On the night in question, the victim’s friend drove the victim
from work to the homeless shelter at approximately 11:00 p.m. and
dropped him off behind the building. The victim entered the homeless
shelter to get gas money to pay his friend for the ride. After the victim paid
his friend, the victim counted his remaining funds. At that point, two men
approached the victim. One of the men, the co-defendant, told the victim
that he was “holding,” which the victim understood to mean that the co-
defendant had drugs for sale.
According to the victim, he was not interested in purchasing drugs and
responded: “Okay.” However, the defendants kept repeating, “I got that”
and “I’m holding.” Next, a verbal altercation between the victim and the
defendants ensued. The defendants told the victim to “give [them his]
loot.” After the victim refused, the co-defendant hit the victim’s face. The
victim defended himself against the co-defendant’s attack and a physical
confrontation erupted with the defendant ultimately joining in the fight.
Ultimately, the defendant and the co-defendant found and took the
victim’s fifty-dollar bill, a one-dollar bill, loose change, a money order and
four bus passes, but they did not take his cell phone. After the defendants
took the victim’s money, they stood nearby while the victim called 911.
The victim informed the defendants that he was calling the police. The
defendants began to walk away.
When the police arrived, the defendant and the co-defendant ran. The
victim, still on the phone with 911, yelled “that’s him” as the officer
approached. The officer saw two men running in different directions. The
officer spoke to the victim who was very animated and upset. The police
officers on scene did not believe that the victim was intoxicated or high on
crack cocaine.
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Finally, the officers were able to capture the defendant and the co-
defendant. The officers recovered the fifty-dollar bill, the one-dollar bill
and the bus passes from the co-defendant, and returned these items to
the victim. After interviewing the defendant and the co-defendant, the lead
detective believed that both men were high on crack cocaine. In addition
to their intoxicated appearance, both men admitted smoking crack cocaine
that evening. As the interview proceeded, the defendant changed his
version of the events. However, the defendant maintained his claim that
he and the co-defendant had been smoking crack cocaine with the victim.
The defendant claimed that the group had been on their way to the
homeless shelter so that the victim could get more money to buy more
crack cocaine. The defendant’s statement to the officers was played during
the trial.
The victim denied asking the defendants for drugs. The victim
explained that, as a homeless shelter resident, he was not permitted to use
drugs or alcohol. To ensure compliance with the policy, the homeless
shelter drug tested residents about once a week. The victim stated he was
drug tested more often than other residents due to his late night work
schedule and explained that any resident who failed a drug test would not
be allowed to continue residing at the shelter.
During the lead detective’s direct examination by the State, the
following occurred:
[PROSECUTOR:] Okay. And considering that [the victim]
was living at the Salvation Army, were you able to verify his
employment?
[LEAD DETECTIVE:] Yes. I was actually able to verify --
[DEFENSE ATTORNEY:] Objection.
[TRIAL COURT:] That’s sustained.
[PROSECUTOR:] Were you able to verify that he actually
lived at the Salvation Army?
[LEAD DETECTIVE:] Yes.
[PROSECUTOR:] And were you able to verify if he ever gets
tested?
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[LEAD DETECTIVE:] I spoke with his case worker in the
work program --
[DEFENSE ATTORNEY:] Objection. Hearsay.
[TRIAL COURT:] Overruled.
[PROSECUTOR:] You could answer.
[LEAD DETECTIVE:] And she stated that, yes. All of the
persons who were involved in a work program, the
Salvation Army regularly drug tested.
[PROSECUTOR:] What’s the purpose of you verifying his
employment and talking to his caseworker?
[LEAD DETECTIVE:] Just to verify the whole story. I knew
exactly what the defense would be in this case. It would
be based on the statements that were given by [the co-
defendant] and [the defendant]. And, you know, [the
victim], he seemed like a fine guy to me. But he’s a
homeless guy. And I wanted to debunk anything that’s
going to be presented here at trial now. . . .
Later, the State referenced this inadmissible hearsay testimony in
closing argument in response to the defendant’s argument that the police
“slanted” the case and the lead detective was a “bought referee.” The
prosecutor argued in rebuttal:
“Slanted from the beginning,” [the lead detective] had it out
for [the defendant] and he was trying to break him. He’s a
referee that has been bought. Well, I asked him, “[lead
detective], knowing that the victim lives at the [homeless
shelter], does that provide any hesitation for you? Does it
make the case a little bit more difficult?” And you know, it
does.
Because I think a lot of people, when they hear [homeless
shelter], “It must be a bad area, he’s homeless. You know
what, he probably was smoking crack.” . . .
Well, I asked [the lead detective] about that and he said, yes.
You know, I took a statement from [the co-defendant]. I took
a statement from [the defendant]. You know, they didn’t
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exactly jive. And I called back [the victim] and confronted him
with this information. [The victim] says, “Listen, I live at the
[homeless shelter]. My curfew, in fact, is a little bit later
because of the funeral situation, funeral home. And,
therefore, I get tested even more often.” [Lead detective], “Did
you verify with [the homeless shelter] that he gets tested and
he lives there? Yes. I did. Why? Because . . . of the nature
of the situation.” [Lead detective], did you verify that [the
victim] works at Jimmy Johns? Yes. I did, because of the
nature of the situation.” He’s not a bought referee. He’s doing
his job.
On appeal, Dunbar argues that the trial court committed reversible
error when it permitted the State to solicit testimony from the lead
detective that he had spoken to the victim’s case manager and her
statements corroborated certain aspects of the victim’s story. The State
admits that this testimony was admitted in error but argues that the error
was harmless beyond a reasonable doubt.
Analysis
“The standard of review for the admissibility of evidence is abuse of
discretion, limited by the rules of evidence. Whether evidence falls within
the statutory definition of hearsay is a matter of law, subject to de novo
review.” Lucas v. State, 67 So. 3d 332, 335 (Fla. 4th DCA 2011) (citations,
quotation marks, and alteration omitted).
In this case, the lead detective testified that, in order to verify the
victim’s story, he spoke to the victim’s homeless shelter case manager.
The victim’s case manager did not testify at trial. Instead, the State sought
to introduce her statements through the lead detective. Over the
defendant’s objections, the lead detective testified that the victim’s case
manager confirmed that the victim resided at the homeless shelter. More
importantly, the jury learned, through the lead detective, that the case
manager also said that all shelter residents who participate in the work
program were regularly drug tested. The State introduced the victim’s case
manager’s out-of-court statements for two purposes: 1) to show that the
lead detective conducted an unbiased and thorough investigation to either
corroborate or debunk the victim’s story, and 2) to prove that the victim’s
testimony, that he was a homeless shelter resident who was frequently
drug tested, was credible.
As the victim’s case manager’s out-of-court statements were admitted
to prove the truth of the matter asserted, these statements constituted
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classic hearsay. No hearsay rule exception applies to render these
statements admissible. Therefore, the State correctly concedes that these
statements were inadmissible hearsay.
The harmless error test applies to improperly admitted hearsay
evidence. See Kendrick v. State, 632 So. 2d 279, 279 (Fla. 4th DCA 1994).
“The harmless error test . . . places the burden on the state, as the
beneficiary of the error, to prove beyond a reasonable doubt that the error
complained of did not contribute to the verdict or, alternatively stated, that
there is no reasonable possibility that the error contributed to the
conviction.” State v. DiGuilio, 491 So. 2d 1129, 1138 (Fla. 1986).
Witness credibility was critical in this case because no physical
evidence or independent eye witness testimony corroborated the victim’s
version of the events. The defendant’s theory at trial was that he and the
co-defendant sold crack cocaine to the victim and then the three smoked
the victim’s crack cocaine together. His theory explained why the co-
defendant was in possession of the victim’s money and also why he and
his co-defendant ran from the police. His theory was corroborated by the
officer’s testimony that both the co-defendant and the defendant appeared
to be high on crack cocaine.
The State sought to rebut the defendant’s theory through the victim’s
testimony that the victim received frequent drug testing at the homeless
shelter. The victim was adamant that he would not jeopardize his place at
the homeless shelter by smoking crack cocaine. The victim’s case
manager’s statements to the lead detective provided independent
corroboration to this aspect of the victim’s testimony. Later, the error was
further compounded when the State referenced the testimony in rebuttal
closing.
Under these circumstances, the State cannot meet its burden to
establish that this error was harmless. Therefore, we must reverse the
conviction and remand for a new trial. See Lewis v. State, 80 So. 3d 442,
444-45 (Fla. 4th DCA 2012) (finding harmful error where police officer
testified that two non-testifying witnesses gave him information which
caused him to develop the defendant as a suspect in a case that rested on
witness credibility); Carter v. State, 951 So. 2d 939, 944-45 (Fla. 4th DCA
2007) (finding harmful error where the State introduced police reports
containing the victim’s inadmissible hearsay statements where witness
credibility was crucial and prosecutor referred to the reports in closing
argument); Szuba v. State, 749 So. 2d 551, 552-53 (Fla. 2d DCA 2000)
(reversing for a new trial where witness credibility was critical to the case
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and police officer testified that witnesses to the crime “gave him consistent
descriptions of the defendant”).
Reversed and remanded for new trial.
LEVINE and CONNER, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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