Donaldson v. State

District Court of Appeal of Florida

Donaldson v. State

682 So. 2d 197, 1996 Fla. App. LEXIS 11100, 1996 WL 604508

CourtDistrict Court of Appeal of Florida

DecidedOctober 23, 1996

DocketNo. 95-2353

StatusPublished

This text of 682 So. 2d 197 (Donaldson v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Donaldson v. State, 682 So. 2d 197, 1996 Fla. App. LEXIS 11100, 1996 WL 604508 (Fla. Ct. App. 1996).

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Opinion

STEVENSON, Judge.

Appellant, Allen Donaldson, was tried by jury and convicted of kidnapping and burglary of a conveyance with assault. Donaldson was sentenced to concurrent twenty year sentences on each count as an habitual felony offender. We affirm in part and reverse in part.

We reverse the conviction and sentence for kidnapping on the authority of Rogers v. State, 660 So.2d 237, 241 (Fla.1995). There, under circumstances strikingly similar to those in the instant case, our supreme court held that a conviction for kidnapping could not stand where the victim/automobile driver, although threatened with a weapon, never obeyed the assailant’s commands to proceed in certain directions, or to stop the car.

We also agree with appellant that the trial court erred in refusing to permit him to display his voice before the jury, unless he took the witness stand. Appellant wanted to demonstrate his voice because the victim had told the police that the assailant had an accent. The cases have held that the display of a physical characteristic, such as tattooed arms or the sound and quality of a human voice, is permissible non-testimonial evidence. United States v. Bay, 762 F.2d 1314 (9th Cir.1984) (tattooed arms); Macias v. State, 515 So.2d 206 (Fla.1987)(speak±ng voice). Nevertheless, in view of the overwhelmingly strong evidence of guilt in this case, we find the error harmless. State v. DiGuilio, 491 So.2d 1129 (Fla.1986).

We have considered the other issues raised on appeal and find no error. Accordingly, we affirm the conviction and sentence for burglary of a conveyance with assault.

Affirmed in part; reversed in part.

GLICKSTEIN, J„ and LUCY C. BROWN, Associate Judge, concur.

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STEVENSON, Judge.

Appellant, Allen Donaldson, was tried by jury and convicted of kidnapping and burglary of a conveyance with assault. Donaldson was sentenced to concurrent twenty year sentences on each count as an habitual felony offender. We affirm in part and reverse in part.

We reverse the conviction and sentence for kidnapping on the authority of Rogers v. State, 660 So.2d 237, 241 (Fla.1995). There, under circumstances strikingly similar to those in the instant case, our supreme court held that a conviction for kidnapping could not stand where the victim/automobile driver, although threatened with a weapon, never obeyed the assailant’s commands to proceed in certain directions, or to stop the car.

We also agree with appellant that the trial court erred in refusing to permit him to display his voice before the jury, unless he took the witness stand. Appellant wanted to demonstrate his voice because the victim had told the police that the assailant had an accent. The cases have held that the display of a physical characteristic, such as tattooed arms or the sound and quality of a human voice, is permissible non-testimonial evidence. United States v. Bay, 762 F.2d 1314 (9th Cir.1984) (tattooed arms); Macias v. State, 515 So.2d 206 (Fla.1987)(speak±ng voice). Nevertheless, in view of the overwhelmingly strong evidence of guilt in this case, we find the error harmless. State v. DiGuilio, 491 So.2d 1129 (Fla.1986).

We have considered the other issues raised on appeal and find no error. Accordingly, we affirm the conviction and sentence for burglary of a conveyance with assault.

Affirmed in part; reversed in part.

GLICKSTEIN, J„ and LUCY C. BROWN, Associate Judge, concur.

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682 So. 2d 197, 1996 Fla. App. LEXIS 11100, 1996 WL 604508, Counsel Stack Legal Research, https://law.counselstack.com/opinion/donaldson-v-state-fladistctapp-1996.

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