Dixon v. State

589 So. 2d 1011, 1991 Fla. App. LEXIS 11454, 1991 WL 242188

Opinions

ON MOTION FOR REHEARING

LETTS, Judge.

We grant the motion for rehearing because of an error in our description of the facts and substitute the following as our opinion:

During trial, a police officer testified before the jury that an informant had indicated to him that the defendant was the culprit who committed the murder. We conclude, under the facts of this case, that the erroneous admission of this hearsay evidence was harmless error.

We agree that error occurred under Harris v. State, 544 So.2d 322 (Fla. 4th DCA 1989) and State v. Baird, 572 So.2d 904 (Fla.1990), when this hearsay testimony was admitted over objection. However, there were five independent eyewitnesses present at the murder scene. Three of the eyewitnesses testified at trial that it was the defendant who committed the murder. Moreover, a police officer testified, without objection, that the two other eyewitnesses identified the defendant as the culprit during a photographic lineup. The evidence of guilt was overwhelming, and we hold beyond a reasonable doubt, that the error did not affect the verdict.

As to Judge Anstead’s comment in his dissent about change in appearance, we would, for example, point out that all five eyewitnesses picked the defendant out of a photographic lineup. This lineup was conducted shortly after the murder at which time the defendant’s appearance had not changed. Moreover, the change in appearance did not stop the three eyewitnesses at trial from later making the positive in-court identification.

AFFIRMED.

GLICKSTEIN, C.J., concurs. ANSTEAD, J., dissents with opinion.