McMillon v. State, 88-2516
| Decision Date | 29 November 1989 |
| Docket Number | No. 88-2516,88-2516 |
| Citation | 14 Fla. L. Weekly 2745,552 So.2d 1183 |
| Parties | 14 Fla. L. Weekly 2745 David A. McMILLON, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Richard L. Jorandby, Public Defender, and Jeffrey L. Anderson, Asst. Public Defender, West Palm Beach, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and James J. Carney, Asst. Atty. Gen., West Palm Beach, for appellee.
David A. McMillon appeals from a judgment of conviction and sentence of seventeen years' imprisonment for the offense of attempted first-degree murder. The appellate issue involved is the admissibility of the pretrial deposition of the victim taken to perpetuate his testimony. We hold the evidence was procedurally inadmissible on the facts of this case and reverse the judgment of conviction and sentence and remand for a new trial.
Lloyd Edwards, the victim of the crime alleged herein, was paralyzed as a result of the shooting; thus, the state made a pretrial oral request to videotape his deposition in order to perpetuate his testimony. Appellant agreed and signed a waiver of his personal presence at the taking of the deposition. However, his counsel was present and cross-examined the witness.
At trial, the state offered the deposition into evidence with no foundation other than the prosecutor's statement that the witness could not travel due to his infirmities. In the colloquy and argument over admissibility, the state admitted it had not had any recent contact with the victim's doctors in order to know his present condition. Appellant's counsel, on the other hand, contended that, from his observation of the witness at the taking of the deposition, he believed the witness would be capable of attending and testifying. Appellant, therefore, maintained his objection to the admissibility of the deposition based on an inadequate foundation as required by the rules. The trial court held that appellant had waived his objection by not making it before trial and because the court believed, from observing the videotape, that the victim should not be required to attend, since he had to travel some four hours to court.
On appeal, appellant contends the trial court erred because there was an inadequate foundation to prove the witness's inability to appear at trial and there was no waiver of the requirements of Florida Rule of Criminal Procedure 3.190(j). The state claims that 1) appellant waived any objection to use of the deposition at trial by consenting to the taking of it to perpetuate the victim's testimony and 2) in all events, the error, if any, was harmless because the evidence was overwhelming that appellant shot the victim.
That there was a procedural error committed here is not...
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State v. Skolar
...with the idea of perpetuating testimony for use at a later trial, does not ipso facto qualify it for admission. See McMillon v. State, 552 So.2d 1183 (Fla. 4th DCA 1989). When the requisites of Rule 3.190(j) are not complied with, the testimony must be excluded as substantive evidence. Stat......
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Knox v. State
...burden of demonstrating that the victim's attendance could not be procured. Fla. R. Crim. P. 3.190(i)(6). See also McMillon v. State, 552 So.2d 1183, 1185 (Fla. 4th DCA 1989) (prosecutor's statement that a witness could not travel due to infirmities, when defense counsel did not agree with ......