Postell v. State

• Decision Date: 28 April 1981
• Docket Number: No. 79-1901,79-1901
• Citation: 398 So.2d 851
• Parties: Larry POSTELL, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 851

398 So.2d 851

Larry POSTELL, Appellant, v. The STATE of Florida, Appellee.

No. 79-1901.

District Court of Appeal of Florida, Third District.

April 28, 1981.

Rehearing Denied June 3, 1981.

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

Jim Smith, Atty. Gen. and Joel D. Rosenblatt, Asst. Atty. Gen., for appellee.

Before HENDRY, DANIEL S. PEARSON and FERGUSON, JJ.

DANIEL S. PEARSON, Judge.

The armed robbery with which Postell was charged and convicted occurred late at night in a dark alley when five black males attacked Alfredo Fernandez and Carlos Lopez.

The criminal episode lasted approximately five minutes. It began when one man approached Lopez's stopped car, pointed a gun at his head and ordered him to pull the car into an adjacent dark alley. In the alley, four more men descended on the vehicle. One pulled Lopez from the driver's seat. When Fernandez turned toward the passenger window, a rock was thrown, hitting him in the head and shoulder area and causing him severe pain. Fernandez was pulled from the vehicle, and he and Lopez were attacked by the five men. Lopez's car, watch and $30.00 were taken, and Lopez and Fernandez were ordered to walk away. According to both victims, two of the robbers left in one vehicle and three in the other.

At trial, Fernandez identified Postell as the person who threw the rock. Lopez was unable to identify Postell as one of the perpetrators. Fernandez acknowledged that he had never seen Postell before, that Postell never spoke to him, and that during the affray his attention was primarily focused on another man holding a gun. He admitted he had difficulty in identifying blacks, and he had variously described the person who threw the rock as short and tall. No physical evidence linked Postell to the crime, and Postell made no statement admitting his complicity. In sum, the State's case against Postell depended solely on the believability of Fernandez's suspect testimony. ¹

To fortify the case against Postell, the prosecutor sought to elicit through the testimony of a police officer, Seymen, the out-of-court declarations of an unidentified woman. ² According to the State's proffer, the mystery woman's statements would reveal her to have been an eyewitness to the crime who identified Postell as one of the perpetrators. The trial court correctly recognized that the woman's statements were egregious hearsay. It determined, however, that the hearsay rule would not be offended nor the right of confrontation implicated by the admission of all but the woman's words. ³ We find that determination to be error and reverse and remand for a new trial.

The prominent role this mystery woman would play in the trial of the case was heralded in the prosecutor's opening statement:

"Another officer, Officer Eric Seymen, arrived on the scene. He had been dispatched by a report that came into Public Safety of the robbery, a witness who had seen some activity at the time, and based upon a conversation he had with the citizen in the area, an investigation insued (sic) resulting in the arrest of Larry Postell.

"That is the reason he is here before you today, and that is the reason why he is charged with armed robbery."

Officer Seymen, testified he went to the scene of the crime. Over repeated, but overruled, defense objections, he was permitted to go on:

"Q What did you find there?

"A I had a conversation in that area with a particular person.

"Q Was this a male or female?

"A It was a female.

"Q Approximately how long did you converse with this individual?

. . . .

"THE COURT: How long did you speak to her?

"A Between five and ten minutes.

"Q Officer, how far is this particular location from where you confronted this woman from the scene of the alleged robbery in this case?

. . . .

"A Within fifteen to twenty yards.

"Q Fifteen to twenty yards?

"A Yes, ma'am.

"Q Did this conversation with this woman take place at approximately the same time that the robbery was being investigated?

"A Yes, it did.

"Q Were you able to determine approximately how long after the robbery this conversation took place?

"A Within minutes.

"Q Based upon your tentative conversation with this woman, what action, if any, did you take?

"A I met with Officers Areu and Laughlin and we responded to the area which was also in the vicinity of the 2100 Block and 75th Street.

. . . .

"A If my memory serves me correctly, we responded at 21 Northwest 74th Street.

"Q Who lives there?

"A The defendant.

"Q What did you find there?

"A The defendant.

"Q Where was he located?

"A Inside the residence.

"Q Based upon any conversation you may have had with individuals at the scene, including but not limited to Carlos Lopez and Alfredo Fernandez, did you take any further action with respect to this defendant?

"A I handcuffed him."

Laughlin and Areu, the other arresting officers, testified that they abandoned their on-scene investigation and went to seek out Postell after talking to Seymen. Apparently still not satisfied that the picture was clear enough, the prosecutor elicited from Fernandez:

"Q (The Prosecutor): What happened then?

"A Well, then I think a lady came up to a police car and told them

"(Defense Counsel): Objection.

"THE COURT: Sustained.

"Sir, do not say what you heard the lady say to the police officer or the policeman say in response.

"Q Mr. Fernandez, directing your attention to the time of that conversation with this woman but not to the actual conversation itself, after this conversation took place between the police officers and this woman, what, if anything happened?

"A They went to his (the defendant's) apartment."

Finally, the prosecutor administered the coup de grace when she argued to the jury:

"(The Prosecutor): In the process of returning these two individuals to the scene of this robbery, they confronted another officer, Officer Seymen, and Officer Seymen testified, you will recall, that he had a conversation with a woman within yards of the site of that robbery; that the conversation lasted some ten minutes right at that scene; that as a result of that direct conversation with that woman, the officers were instructed to respond to the home of this defendant, Larry Postell.

"(Sidebar on defendant's mistrial motion omitted)

"(The Prosecutor): Once again ladies and gentlemen, at the conclusion of this conversation between Officer Seymen and this woman, the officers responded to the home of the defendant.

. . . .

"Now, ladies and gentlemen, consider what a coincidence it would be to come upon a scene of a robbery within two to three blocks of this defendant's home, within thirty minutes of the robbery, go to the location and find an individual who exactly fits the description given to the police officers before he was ever a suspect by name.

. . . .

"Let us determine what, in fact, the police did arrest this defendant on.

"Consider the testimony that the two victims of the robbery gave to them, including the description, considerable conversation that was had between a woman and one of the police officers within yards of the scene of the robbery.

"(Defense Counsel): I am going to object and move for a mistrial on the same grounds as before.

"THE COURT: Denied."

We reject the trial court's wooden application of the hearsay rule and the confrontation clause of the Sixth Amendment. We hold that where, as in the present case, the inescapable inference from the testimony is that a non-testifying witness has furnished the police with evidence of the defendant's guilt, ⁴ the testimony is hearsay, and the defendant's right of confrontation is defeated, notwithstanding that the actual statements made by the non-testifying witness are not repeated. ⁵ In so holding, we announce no novel rule.

In Favre v. Henderson, 464 F.2d 359 (5th Cir.), cert. denied, 409 U.S. 942, 93 S.Ct. 235, 34 L.Ed.2d 193 (1972), as in the present case, the critical issue was identification of the defendant. The identification of the defendant was shown by "two tentative identifications," "one dubious positive identification," and "one vigorously challenged positive identification," including "a questionable lineup procedure." To bolster its case, the State called a police officer who testified that he arrested Favre for armed robbery based on information he received from two reliable informants. The informants did not testify, and their statements to the officer were not repeated. The court held that this testimony violated the defendant's right of confrontation ⁶:

"Whether offered by the prosecution to establish identification, guilt, or both, the testimony, when considered in light of its logical inferences, is hearsay. 'Hearsay evidence is testimony in court or written evidence, of a statement made out of court, such statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter.' McCormick, Evidence 460 (1954). See generally id. pp. 455-712; Wigmore on Evidence §§ 1361-1769 (1940); Wharton, Criminal Evidence pp. 569-765 (1955). Although the officer never testified to the exact statements made to him by the informers, the nature of the statements as discussed above, was readily inferred. The statements were offered to establish the truth of the matters asserted therein identification, guilt or both. The truth of the assertions depended upon the credibility of the informers who were not identified, not present in Court, and not subject to cross-examination." Favre v. Henderson, supra, at 362.

In State v. Bankston, 63 N.J. 263, 307 A.2d 65 (1973), the critical issue was whether the defendant possessed the contraband that was found by the police on a tavern counter top near where Bankston had been seated. The State elicited testimony from the police that shortly before arresting Bankston, based upon information received from an informer, they went to the tavern looking for...