Scott v. State, 70--608
Decision Date | 15 December 1971 |
Docket Number | No. 70--608,70--608 |
Citation | 256 So.2d 19 |
Parties | Anderson SCOTT, Appellant, v. STATE of Florida, Appellee. |
Court | Florida District Court of Appeals |
Walter N. Colbath, Jr., Public Defender, and Norman J. Kapner, Asst. Public Defender, West Palm Beach, for appellant.
Robert L. Shevin, Atty. Gen., Tallahassee, Charles W. Musgrove, and Andrew I. Friedrich, Asst. Attys. Gen., West Palm Beach, for appellee.
Defendant was convicted of murder and appeals. We affirm.
He queries:
Did the trial court err in allowing over defendant's objection, the mother of the deceased to testify as to his identity in view of the availability of other witnesses for this purpose who were not members of decedent's family?
It is a well and long established rule in Florida that a member of the deceased victim's family may not testify for the purpose of identifying the victim where non-related witnesses are available to make such identification. See Melbourne v. State, 1906, 51 Fla. 69, 40 So. 189; Rowe v. State, 1935, 120 Fla. 649, 163 So. 22; Hathaway v. State, Fla.App.1958, 100 So.2d 662; Gibson v. State, Fla.App.1966, 191 So.2d 58.
In the instant case the mother of the victim testified and established the identity of the deceased, although other witnesses not related to the decedent were available and could have been used to satisfy the identification requirement.
If there were not more than the foregoing we would necessarily reverse the judgment of conviction. But other circumstances were present which prompt us to term the violation of the rule as harmless error or, perhaps equally, to say that the use of the mother's testimony fell within an exception to the rule.
Defendant admitted shooting the decedent, but claimed that it was done in self-defense.
On the day of the shooting there was testimony that decedent threatened defendant with a knife, cutting him a little. Someone intervened before things got further out of control. That same evening decedent again threatened defendant with a knife. After this last episode, according to defendant's version, defendant went outside, with a gun, to give it to a friend for safekeeping while defendant was away on a short trip. Defendant was again met by decedent brandishing a knife. As decedent advanced defendant shot twice wildly. Decedent still advanced until fatally struck by defendant's third shot.
The state says no eyewitness saw decedent with a knife at the time of the fatal shooting. In fact, his knife was found in his pocket unopened. Defendant explained this latter fact by tracing the various places the body was taken before the knife was found and questioning the reliability of the discovery.
In light of this it was important for the prosecution to prove, if it could, that the knife was in the decedent's pocket at the time of the shooting. Excerpts from the mother's testimony are:
'
'Q Did you see him there?
'
As we see it, the testimony of the mother was essential for more reasons than mere identification. She was a necessary prosecution witness because she formed an essential link in the chain of custody of her deceased son's clothing and her testimony concerning same and the finding of the knife closed in the pocket of his clothing tended to discount defendant's self defense assertion. Further, in order to explain her presence and possession of the clothing it was necessary to establish her relationship to the decedent. See Wolfe v. State, Fla.App.1967, 202 So.2d 133.
Inasmuch as the jury was in proper possession of the knowledge that decedent was survived by the mother, the use of her testimony to establish identity established nothing to prejudice the defendant that was not already before the jury. Thus, the claimed error was harmless at best. Ch. 59.041, F.S.1969, F.S.A.
To put it another way, we are of the opinion that where the fact of the survivorship and relationship is otherwise somehow properly before the jury, an exception to the aforementioned rule is created.
Having ruled as we have, we respectfully record this caveat and...
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DeJesus v. Sec'y, Fla. Dep't of Corr.
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