Lamb v. State
| Decision Date | 29 March 1978 |
| Docket Number | No. 76-839,76-839 |
| Citation | 357 So.2d 437 |
| Parties | William J. LAMB, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Jack O. Johnson, Public Defender, and W. C. McLain, Asst. Public Defender, Bartow, for appellant.
Robert L. Shevin, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
Appellant Lamb was convicted and sentenced for the crimes of aggravated assault, carrying a concealed firearm, and resisting an officer with violence. He contends that the trial court erred when it permitted, over objection, and during the State's case in chief, an investigating police officer to testify regarding statements the victim made to him which were consistent with the victim's testimony previously received in evidence. We agree and reverse.
After appellant was charged with the aforementioned crimes, he entered a guilty plea to the concealed firearm charge, but pleaded not guilty and proceeded to trial on the two remaining counts. The jury found appellant guilty in both instances. He was adjudicated guilty of all three charges, and was sentenced to a term of three years "under the new mandatory gun law."
During the trial Sandra Davis, appellant's girlfriend and the alleged aggravated assault victim, testified that she, the appellant and others were drinking beer at an apartment. While she and appellant were alone in the kitchen, appellant grabbed her by the neck, placed a gun to her temple, and stated he was going to kill her. Appellant did not harm her and left immediately. Davis then called the police. No eyewitnesses to this event other than Davis were produced.
An Officer Potts, responding to Davis' phone call, later arrived at the apartment whereupon Davis described the events to him. Over objection, Potts was permitted to testify that Davis had stated appellant had pointed a gun at her head, threatened to kill her, and that she was scared. On cross-examination, Davis testified that although she was scared at the time appellant placed the gun at her head, she later felt appellant did not intend to harm her.
We feel error was committed by the allowance of Potts' testimony concerning Davis' prior consistent statement as it violates the rule that a witness's prior consistent statement may not be used to corroborate that witness's trial testimony. In Roti v. State, 334 So.2d 146 (Fla. 2d DCA 1976), the defendant was charged with and convicted of receiving or aiding in the concealment of a stolen diamond ring. At trial a David Blackmer admitted he stole the ring and sold it to Roti. Blackmer also testified he told Roti the ring was stolen. A police officer was permitted to testify, also over objection, as to statements made to him by Blackmer during which Blackmer stated he had advised Roti the ring was stolen. This, of course, was consistent with Blackmer's previous testimony. This court reversed Roti's conviction and ordered a new trial holding that it was error to permit the police officer to testify concerning the prior consistent statement made to him by Blackmer. Roti was followed by this court in Brown v. State, 344 So.2d 641 (Fla. 2d DCA 1977). In Brown, the defendant was convicted of committing a lewd and lascivious act in the presence of a child under the age of fourteen. During trial, a police officer testified as to statements made to the victim's mother by the victim concerning various details of the actions of the victim and appellant, which the victim's mother had related to the officer at the police station. The victim's mother then testified as to the same statements. The victim was called as a witness and proceeded to essentially track the recital related by the police officer and her mother. In reversing Brown's conviction and awarding him a new trial, we stated the police officer's testimony "had the immediate effect of putting a cloak of credibility upon the succeeding testimony of the mother and the victim." 344 So.2d at 643.
In the instant case, the State argues that Potts' testimony regarding Davis' prior consistent statement was not error because it served to clear...
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Carroll v. State
...1st DCA 1982); Holliday v. State, 389 So.2d 679 (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.......
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Reyes v. State, 90-132
...Perez v. State, 371 So.2d 714 (Fla. 2d DCA 1979); accord Barnes v. State, 576 So.2d 439 (Fla. 4th DCA 1991); see also Lamb v. State, 357 So.2d 437 (Fla. 2d DCA 1978); Brown v. State, 344 So.2d 641 (Fla. 2d DCA 1977). 2. Both of the Suttons were repeatedly permitted to state that C.H. "would......
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Jenkins v. State
...that witness told him that defendant shot victim was consistent with witness' trial testimony and inadmissible); Lamb v. State, 357 So.2d 437 (Fla. 2d DCA 1978) (investigating officer's testimony as to victim's prior statement was consistent with victim's trial testimony and inadmissible). ......
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Keller v. State
...recount the victim's description of the criminal incident, including 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). See Jenkins at 1021. See also Cook v. State, 528 So.2d 1311 (Fla. 2d DCA ......