Hall v. State, 98-1227.

• Decision Date: 06 October 1999
• Docket Number: No. 98-1227.,98-1227.
• Parties: Milton HALL, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

744 So.2d 517

Milton HALL, Appellant, v. The STATE of Florida, Appellee.

No. 98-1227.

District Court of Appeal of Florida, Third District.

October 6, 1999.

John H. Lipinski, Hollywood, for appellant.

Robert A. Butterworth, Attorney General, and Christine E. Zahralban, Assistant Attorney General, for appellee.

Before NESBITT, SHEVIN and SORONDO, JJ.

SORONDO, J.

Milton Hall appeals from the lower court's order of revocation of his probation and six year sentence. We reverse.

Pursuant to a plea agreement, Hall was convicted of robbery and burglary with an assault therein and sentenced as a youthful offender to three years probation with special conditions including boot camp. While Hall was on probation, an affidavit of violation was filed alleging that he committed the offenses of burglary of an occupied conveyance and strong arm robbery on March 30, 1997.

The trial court conducted a joint probation revocation hearing of Hall and a co-defendant, Wallace Foster. The victims of the crimes, Canadian tourists Paul and Joanna Tsang, did not testify.¹ The principal evidence against Hall and Foster came from testimony of Officer Jose Belekas and Detective Alfredo Alvarez.

Detective Alvarez interviewed the Tsangs at their hotel. He testified that they told him that around 11:20 a.m. on March 30, 1997, they stopped at a gas station at Second Avenue and Southwest Seventh Street to ask for directions. As Paul Tsang attempted to drive away from the station, a black male stood in front of their car, blocking the way. Meanwhile, a second black male walked around the car, looked in the windows, smashed the passenger side window, grabbed Joanna Tsang's purse, struggled with her and snatched the purse from around her neck. The men then got into a dark blue Buick parked about a half a block away, which was occupied by two other men. The Tsangs tried to follow this car, but they lost it and returned to their hotel.

Detective Alvarez testified that he put out a BOLO for the robbery suspects, whom he described as two young black males, and possibly a third, average height (5'7" to 5'9"), in a dark blue Buick with a partial tag number of either GHT157 or GHK157. Detective Alvarez believed that the BOLO stated that two of the suspects wore white shirts (one tank-top and one t-shirt). Officer Belekas testified that the BOLO was for a brown vehicle with New Jersey tags and four black males, 18-22, wearing dark clothing.

Officer Belekas testified that around 12:30 p.m. he and his partner were riding in their patrol car in the area of Fourth Avenue and Northwest Ninth Street. They turned and saw four subjects who fit the description in the BOLO standing together in a group next to a dark car. As the officers approached, the men looked at them and began to get nervous. Officer Belekas saw two of the men, Coleman and a bigger black male, drop something onto the ground. The officers got out of their car and stopped the four men. Officer Belekas found two credit cards, bearing Joanna Tsang's name, on the sidewalk. He also observed a cut on Hall's hand. When the officers searched the men, they found Canadian currency in Coleman's pocket.

Shortly thereafter, Detective Alvarez got a call informing him that four black men had been detained in connection with the BOLO. Detective Alvarez responded to the scene. He testified that Hall was wearing a white tank top and Foster was wearing a white t-shirt. Detective Alvarez noticed some "fresh cuts" on Hall's right arm and palm, which he described as very small tears in the skin with blood on them, as well as some old scars on his arm. Later on cross-examination, after being shown a photograph of the defendant's hand taken on the day of his arrest, Detective Alvarez modified his description of the cut on Hall's hand as "a razor cut ... red, but not bleeding" and characterized it as "very minor."

A stolen, four-door, brown Buick that closely matched the description given by the victims was found a few blocks from where the men were stopped. The license tag on this car was GHA51K, while Detective Alvarez testified that the tag number given to him by the victims was either GHT157 or GHK157. Detective Alvarez testified over a hearsay objection that some women in the area where the Buick was found had described four black men who got out of the car. These ladies "did not want to get involved" but they told Detective Alvarez that a big heavyset man was driving and described a fourth black male, who turned out to be a man named Damas, who the police later arrested in connection with another case.² The Buick was processed for fingerprints but the prints lifted did not match Hall, Foster or Coleman.

The police brought the Tsangs to the location where the men were stopped. Detective Alvarez testified that Joanna Tsang immediately identified Hall as the man who smashed her window, and became very agitated, and that after she calmed down she then identified Foster as the man in front of the car. Detective Alvarez testified that Paul Tsang looked at the men for a few minutes and also identified Foster as the man in front of the car. Paul Tsang later pointed out Hall as looking similar to the man who went to the window, although he was unsure.³ Officer Belekas testified that the Tsangs identified three out of the four suspects, Hall, Foster and Coleman. Officer Belekas later clarified that he was not close enough to hear the victims make their identifications, and his understanding regarding the positive I.D. came from the detective.

The deposition testimony of Paul Tsang regarding the identifications differed from that of the officers. Paul Tsang testified that the man he positively identified was the man walking around the car and looking in the windows, not the man standing in front of the car. Paul Tsang could not describe the clothing that the man blocking the car wore, other than to say maybe something light colored. He could not describe his face and testified that he would not be able to identify him again. Paul Tsang testified that the person looking through the window was wearing a white t-shirt, but could not remember whether it had sleeves. Paul Tsang testified that the license plate number they gave to the police was based on a consensus of his recollection and that of his wife, their eight-year-old daughter and his wife's parents. Both Paul and Joanna Tsang testified on deposition that they identified the defendants not by their faces, but rather by their body shapes and clothing.

Detective Alvarez testified that both Hall and Foster gave statements denying any involvement in the robbery. Coleman told the police that he found the credit cards while walking on the street. Detective Alvarez acknowledged that there was no physical evidence tying Hall and Foster to the crimes, only the identifications.

The defense moved for judgment of acquittal on the grounds that all of the testimony at the hearing was based upon hearsay. The defense argued that hearsay cannot be the sole basis for finding a defendant guilty of a probation violation. The court denied the motion.⁴

The defense presented testimony from five separate alibi witnesses. Hall's mother, aunt and cousin testified that on March 30th, which was Easter Sunday, they were having a barbeque to celebrate, as Hall had returned home from boot camp the week before. They all saw Hall and Foster standing at the gate of the yard until about 12:00 p.m., when Hall said he was going to the store.⁵ Foster's mother and a neighbor testified that they went to the beach that day, and they last saw Hall and Foster as they left between 11:30 and 11:45 a.m. Hall's mother and cousin also testified that on the Thursday three days before the barbeque, Hall cut his palm while helping his cousin assemble a bed.

The defense renewed the motion for judgment of acquittal. The trial court noted that the police found the defendants in a group of four young black males, one of whom had the stolen property in his possession, that there was hearsay testimony that these men got out of a car which bore the license plate described by the victims, that the victims identified the defendants about an hour and ten or twenty minutes after the crimes and that Hall had fresh scratches on the palm of his hand. The court found that when all of these elements were considered together, there was sufficient evidence to find that Hall and Foster had violated their probation.

The law is clear that a person's probation cannot be revoked solely on the basis of hearsay evidence. See Shaw v. State, 710 So.2d 182 (Fla. 3d DCA 1998); Ford v. State, 678 So.2d 432 (Fla. 4th DCA 1996); Colina v. State, 629 So.2d 274 (Fla. 2d DCA 1993); Lira v. State, 579 So.2d 781 (Fla. 3d DCA 1991). In this case, the State introduced an overwhelming amount of hearsay evidence. It argues that enough non-hearsay evidence was introduced to sustain the defendant's...