Brundige v. State, 91-1597

• Decision Date: 17 March 1992
• Docket Number: No. 91-1597,91-1597
• Citation: 595 So.2d 276
• Parties: 17 Fla. L. Weekly D749 Vincent I. BRUNDIGE, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 276

595 So.2d 276

17 Fla. L. Weekly D749

Vincent I. BRUNDIGE, Appellant, v. The STATE of Florida, Appellee.

No. 91-1597.

District Court of Appeal of Florida,

Third District.

March 17, 1992.

Bennett H. Brummer, Public Defender, and Beth C. Weitzner, Asst. Public Defender, for appellant.

Robert A. Butterworth, Atty. Gen., and Richard S. Fechter, Asst. Atty. Gen., for appellee.

Before NESBITT, FERGUSON and LEVY, JJ.

FERGUSON, Judge.

Brundige appeals his convictions and sentences for armed robbery, possession of a firearm during the commission of a robbery, and possession of a firearm by a convicted felon. The convictions for armed robbery and possession of a firearm by a convicted felon are affirmed; the conviction for possession of a firearm during the commission of a robbery is reversed.

The central issue at trial focused upon the identification of Brundige as one of the perpetrators. One of the victims testified that he heard Brundige speak during the commission of the offense, and that there was nothing distinctive or unusual about his voice. After the State rested defense counsel requested permission, outside the presence of the jury, for Brundige to speak in front of the jury without becoming a witness so the jurors could hear the "unique" quality of his voice. The trial court denied the request, ruling that the voice display would be testimonial in nature and would subject Brundige to cross-examination by the State. ¹ Brundige did not display his voice before the jury, and was ultimately adjudicated guilty on all three counts.

Brundige contends that, where the defense was misidentification, he should have been allowed to display his voice before the jury without subjecting himself to cross-examination. We need not reach the merits of this point.

Brundige's decision not to display his voice before the jury rendered the court's ruling unreviewable. To find error would require us to assume, without a factual basis, that the defendant's decision to forego the voice display was based solely on the trial court's ruling, or that the State would have attempted to cross-examine the defendant if he had displayed his voice. As a reviewing court, we cannot undertake the required harmless error analysis, section 924.33, Florida Statutes (1991), because a conclusion that any harm followed and was caused by the trial court's ruling would be speculative. See Parker v. State, 563 So.2d 1130 (Fla. 5th DCA) (where defendant was informed by the trial court that if he testified he would be subject to impeachment based upon a prior jury verdict of guilt, and defendant decided not to...