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Testimony By Police Officers That Recount Statements

Testimony By Police Officers That Recount Statements Of Witnesses Who Are Not Available For Trial And Opinion Testimony By The Police That The Defendant Is Guilty, Is Improper And Results In Reversal Of Thirty Year Sentence For Burglary.

In the case of Battle v. State, 34 Fla. L. Weekly D2002a (Fla. 4th DCA September 30, 2009), the court reversed a conviction and thirty year sentence for burglary of a dwelling, theft, and battery on a law enforcement officer.

Police officers testified that they saw Battle running along a sidewalk with socks on his hands and ducking between parked cars. Thinking this was suspicious the police followed him in the car and another officer chased down Battle, tackling him and placing him in handcuffs. After Battle was detained by the police, four Hispanic men came forward and told the police that someone had taken money from their home. A search of the defendant revealed that he had the exact amount and denomination of money that the witnesses claimed was missing. The four Hispanic men also identified Battle as the intruder who they had seen inside their home only minutes before.

Two of the Hispanic men were not available to testify at trial because they had returned to Mexico.

In an effort to get in the testimony of these two missing witnesses, the prosecutor questioned the two law enforcement officers who related that the unavailable witnesses told the officers the exact amount and denomination of the money taken.

In addition on redirect examination, the prosecutor asked one of the officers how sure he was that Battle had committed the burglary. The officer then recited the evidence and stated, "Definitely 100%, [Battle] is the guy that committed the burglary."

The appellate court ruled that the trial court abused its discretion in admitting the out of court statements of the unavailable witnesses. The court noted that not only had the testimony been hearsay, but it also violated Mr. Battle's constitutional right to confront the witnesses against him citing to Crawford v. Washington, 541 U.S. 36 (2004).

The court noted that the statements of the unavailable witnesses were testimonial in nature and not statements that were solicited by police in an attempt to respond to an ongoing emergency.

The court in Battle also cited to Davis v. Washington, 575 U.S. 813 (2006) quoting from page 822 of Davis, "[S]tatements are testimonial when the circumstances objectively indicate that there is no . . . ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution."

There can be little doubt that the testimony of the officers relating what the Hispanic males said in identifying the defendant and the exact amount and denomination of the money was clearly hearsay and in violation of the confrontation clause. The appellate court noted that the trial court abused its discretion in admitting such testimony.

The opinion of any witnesses as to the guilt of the defendant is improper. This improper testimony has even greater prejudicial effect when it comes from a law enforcement witness.

The court noted that generally a witness' opinion as to guilt or innocence of the accused is not admissible, citing to Martinez v. State. 761 So. 2d 1074, 1079 (Fla. 2000). The court went on to note that such opinion testimony should be excluded regardless of its relevance on the ground that its probative value is substantially outweighed by unfair prejudice to the defendant, citing to Florida Rules of Evidence, Section 90.403. The court went on to note "[T]he danger of prejudice increases when an investigating officer is permitted to offer an opinion as to the defendant's guilt." The court also noted that when a law enforcement officer gives such an opinion about the ultimate issue of guilt, it conveys the impression that the officer is aware of other evidence not presented to the jury which is also highly improper and prejudicial.

This problem is one that occurs often in the trial courts. The appellate court stated, "Trial courts should be stricter in cautioning counsel against soliciting such opinions and law enforcement officers about making such statements."

This strong admonition by the appellate court should be utilized by defense attorneys. The filing of motions in limine to ensure that the court instructs the prosecutors and law enforcement witnesses against making such comments is one tool to help prevent this prosecution tactic.

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