Brown v. State, 76--975
| Decision Date | 15 April 1977 |
| Docket Number | No. 76--975,76--975 |
| Citation | 344 So.2d 641 |
| Parties | Tim Thomas BROWN, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
William C. Gregg, III, Clearwater, and Carleton L. Weidemeyer of Wightman, Rowe, Weidemeyer, Jones & Turnbull, Clearwater, for appellant.
Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellee.
The appellant was convicted of a violation of Section 800.04, Florida Statutes--specifically a lewd and lascivious act in the presence of a child under the age of 14 years.
The first witness for the state was the police officer who received the complaint of the crime from the mother of the victim. The second witness for the state was the mother of the victim. Over objection, both of these witnesses were permitted to give testimony we find was inadmissible and constituted reversible error. It is, therefore, unnecessary to treat the other assignments of error.
We first address our attention to the testimony of the police officer. After the normal preliminaries the police officer properly testified that the mother of the victim came to police headquarters to report the incident. There then followed this question:
Q. Did (the mother) tell you what happened?
Objection was promptly made but was overruled. The prosecuting attorney then pursued the matter with the following question;
Q. What did she say to you?
After some appropriate comments--not directly responsive to this question--concerning the arrival of the mother at the police station, the personnel preesnt, his police station, the personnel present, his mother to come into his office for the interview, he continued with the following:
A. She stated that her daughter had related to her . . .
This was promptly interrupted by further objection by counsel for the appellant. A colloquy occurred at the bench which resulted in the following ruling by the trial judge:
While I think this embodies some of the characteristics of hearsay, I see no prejudice inasmuch as the mother will be here, inasmuch as the State's case is based in a most entire measure upon the testimony we will receive from a child prosecutrix, I am going to allow it, . . . Overruled.
Thereafter the police officer was permitted to testify concerning what the victim told the mother as to various details of the actions of the victim and the appellant; where and under what circumstances the incident took place; the mother's statements concerning her own whereabouts and the relationship she had with the appellant (described in brief as a trial marriage); and, even testified that the mother stated that 'it had happened one time prior to that'--meaning prior to the incident giving rise to the complaint. He concluded with the information that the victim was not in the room with him and the mother at the time of the conversation.
As stated above, we consider it also necessary to deal with the testimony of the victim's mother. It is important to note that the mother was called--in the first instance--immediately after the police officer. She fixed the date of the incident as the 21st of December, explained her own relationship with the appellant--they had lived together for some eight months--and described the other occupants of the household consisting of the mother's several children by her previous marriages. She ultimately testified to the incident in question. She explained that she left the house on the 21st, a Sunday afternoon, to visit another of her children at a juvenile detention center. She testified she was absent from the home approximately three hours. The defendant, the victim, and two other children of the mother were left in the home. The mother noticed nothing untoward when she returned home that afternoon at approximately 3:30 or 4:00 o'clock. Normal Christmas preparations were then described as taking place over the next couple of days, including the arrival for the holidays of an older daughter from out of town and an older son from military service.
According to the mother's testimony the victim first advised her on the evening of the 23rd that she had something to tell her about the appellant...
To continue reading
Request your trial
-
Carroll v. State
...(Fla. 3d DCA 1980); Perez v. State, 371 So.2d 714 (Fla. 2d DCA 1979); Lamb v. State, 357 So.2d 437 (Fla. 2d DCA 1978); Brown v. State, 344 So.2d 641 (Fla. 2d DCA 1977); Roti v. State, 334 So.2d 146 (Fla. 2d DCA 1976); Kellam v. Thomas, 287 So.2d 733 (Fla. 4th DCA 1974); Allison v. State, 16......
-
State v. Giles
...old made declaration to her parents five or six days after sodomy); State v. Jalette, 119 R.I. 614, 382 A.2d 526 (1978); Brown v. State, 344 So.2d 641 (Fla.App.1977) (girl under fourteen made disclosure to her mother three days after lewd conduct); State v. Lovely, 110 Ariz. 219, 517 P.2d 8......
-
Lazarowicz v. State, 86-1457
...2d DCA 1985); McElveen v. State, 415 So.2d 746 (Fla. 1st DCA 1982); see also Jackson v. State, 498 So.2d 906 (Fla.1986); Brown v. State, 344 So.2d 641 (Fla. 2d DCA 1977). Jennifer's prior consistent statements admitted at the trial through other witnesses regarding the sexual battery do not......
-
Kopko v. State
...done is to create an invitation to repetitive testimony consistently prohibited in Florida prior to the amendment. E.g., Brown v. State, 344 So.2d 641 (Fla. 2d DCA 1977); Allison v. State, 162 So.2d 922, 924 (Fla. 1st DCA 1964). 9 The statute itself suggests at least one repetition is permi......