McCray v. State
| Decision Date | 26 January 2006 |
| Docket Number | No. 1D05-1167.,1D05-1167. |
| Citation | 919 So.2d 647 |
| Parties | James McCRAY, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Nancy A. Daniels, Public Defender, and Richard M. Summa, Assistant Public Defender, Tallahassee, Attorneys for Appellant.
Charlie Crist, Attorney General, and Sherri Tolar Rollison, Assistant Attorney General, Tallahassee, Attorneys for Appellee.
Appellant seeks review of his conviction and sentence for aggravated stalking, arguing that the trial court committed reversible error when it excluded evidence at trial proffered to refresh the witness' recollection. In addition, Appellant argues that the trial court reversibly erred when it excluded impeachment evidence proffered at trial. We agree that these are not harmless errors, and therefore reverse and remand for a new trial.
The first issue presented is whether the trial court properly excluded evidence proffered at trial to refresh the recollection of the minor witness, who testified that Appellant approached her. The defense requested that the witness be able to refresh her recollection with a police report. The trial court denied the request because the police report contained a description given by the witness to her mother, and then relayed from the mother to the officer preparing the report. The trial court ruled that the police report could not be used to refresh the witness' recollection because it was not her own statement.
The second issue arose when the defense requested that the officer be able to testify about the physical description included in the police report given by the mother of the minor witness. The trial court reviewed the testimony of the witness' mother and ruled that the officer could not testify regarding a previous identification because it was double hearsay and not trustworthy for impeachment purposes.
As a general rule, a trial court's ruling on the admissibility of evidence will not be reversed, absent an abuse of discretion. Globe v. State, 877 So.2d 663, 673 (Fla.2004); Russ v. State, 832 So.2d 901, 910 (Fla. 1st DCA 2002). However, a court's discretion is limited by the evidence code and applicable case law. A court's erroneous interpretation of these authorities is subject to de novo review. Gilliam v. Smart, 809 So.2d 905 (Fla. 1st DCA 2002). We find here that the trial court's rulings were an incorrect application of law and, therefore, an abuse of discretion.
We find that the trial court abused its discretion when it refused to allow defense counsel to utilize the police report to attempt to refresh the minor witness' recollection. Even if a statement is inadmissible as hearsay, it may still be used to refresh recollection, as long as a party is not unduly prejudiced by the process. Garrett v. Morris Kirschman & Co., 336 So.2d 566, 569 (Fla.1976). Therefore, because inadmissible hearsay evidence may be used to attempt to refresh recollection, the trial court erred in its decision as a matter of law.
Second, the trial court abused its discretion when excluding evidence which was proffered for impeachment. Defense counsel sought to impeach the minor witness' mother with her description of Appellant which was provided to the police officer and included in his report. Defense counsel argued that Appellant should be allowed to call the police officer to testify to this matter. We...
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