Westley v. State, AF-500

• Decision Date: 16 June 1982
• Docket Number: No. AF-500,AF-500
• Parties: Jerry WESTLEY, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 18

416 So.2d 18

Jerry WESTLEY, Appellant, v. STATE of Florida, Appellee.

No. AF-500.

District Court of Appeal of Florida First District.

June 16, 1982.

Rehearing Denied July 19, 1982.

Michael Allen, Public Defender, Melanie Ann Hines, Asst. Public Defender, Tallahassee, for appellant.

Jim Smith, Atty. Gen., Kathryn L. Sands, Asst. Atty. Gen., Jacksonville, for appellee.

LARRY G. SMITH, Judge.

Appellant, who was convicted of second degree murder, appeals his judgment of conviction and sentence on the grounds: (1) that the trial court erred in allowing Detective Parmenter to read appellant's post-arrest statement made to him, after the written version of appellant's oral statement had been admitted into evidence, and after the detective had testified, in detail, as to the contents of the statement as he recalled them; and (2) that the trial court erred in overruling appellant's objections and in failing to grant appellant's motion for mistrial based upon allegedly improper and prejudicial final argument by the prosecuting attorney. We affirm.

Detective Parmenter testified that following his arrest appellant admitted having possession of the knife which was recovered at the scene of the homicide, but that he had tripped over a loose shoelace and fell into the deceased, and did not know that he had stabbed him until the next morning when he was told that the victim had died. This statement was written down by the detective as appellant made it orally. It was then corrected and signed by appellant. At trial, following a proffer during which the court found the statement to be voluntary, the prosecutor asked the detective to relate to the jury his recollection of the contents of appellant's statement. He did so, reciting the statement virtually verbatim. The prosecutor then offered the statement into evidence, and it was admitted. Upon the prosecutor's request that the witness read the statement to the jury, defense counsel objected on the grounds that the reading of the statement would be repetitious. The trial judge overruled the objection, stating, "[w]hen he was reciting the contents of the statement earlier, it was from recollection or memory, and now that statement is in evidence. I will permit Detective Parmenter to read verbatim the statement that was made." Appellant contends that the trial court abused its discretion by allowing the prosecutor to introduce, over objection, the repetitious and cumulative evidence regarding appellant's statement, with the resulting prejudice that the minds of the jurors were indelibly etched with the details contained in the statement. Although no case law directly in point is cited, appellant contends that Section 90.403, Florida Evidence Code, prohibits the "needless presentation of cumulative evidence."

We agree with appellant's argument that the triple presentation of his statement was overly repetitious. We note, however, that Section 90.403 provides, in part:

Relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence.

As this court noted in Smith v. State, 404 So.2d 167 (Fla. 1st DCA 1981), the approach expressed in Section 90.403 is in agreement with the Federal...