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Anderson v. State

Florida Court of Appeals, Fourth District

November 1, 2017

GLENROY ANDERSON, Appellant,
v.
STATE OF FLORIDA, Appellee.

         Not final until disposition of timely filed motion for rehearing.

         Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Lisa Porter, Judge; L.T. Case No. 13-8650 CF10A.

          Richard L. Rosenbaum of the Law Offices of Richard Rosenbaum, Fort Lauderdale, for appellant.

          Pamela Jo Bondi, Attorney General, Tallahassee, and Allen R. Geesey, Assistant Attorney General, West Palm Beach, for appellee.

          Ciklin, J.

         An encounter between the defendant and another man on a public roadway resulted in the defendant's conviction of aggravated assault with a firearm. Because the admission of certain hearsay evidence was not harmless, we reverse and remand for a new trial.

         The evidence at trial revealed the following. During the victim's drive home from work, the defendant pulled up close behind his vehicle, even though the victim was traveling well over the speed limit. The victim, a two-time convicted felon, braked abruptly, causing the defendant to veer his Lexus into another lane. Instead of being put off, the defendant pulled his Lexus alongside the victim's vehicle. The windows of the victim's vehicle were down, as was the front driver's side window of the defendant's Lexus.

         The defendant rested a gun on the windowsill of his Lexus, pointed the gun in the victim's direction, and asked him if he had a "f'ing problem." The victim responded that there was no problem, and the defendant drove ahead of him, seemingly ending the encounter. As soon as traffic came to a stop, however, the defendant opened the door of his Lexus, placed one foot on the ground, and looked back at the victim. The victim put his car in reverse and threw up his hands to indicate that he was not interested in a confrontation. The defendant sped away. The victim followed at a distance and was able to obtain the license plate number on the defendant's Lexus, which he immediately reported to a 911 operator.

         During the investigation, law enforcement officers spoke to both the victim and the defendant. The victim described the gun as "nickel plated or chrome, something along those lines, " and as a silver automatic firearm. He also stated that holes on the front of the gun were "silver because it's stainless steel."

         When the defendant was arrested about three weeks after the incident, a gun with a silver upper portion and black lower portion was recovered from his Lexus.

         The case proceeded to trial. The victim first testified that the gun was a nine-millimeter "nickel plated chrome plated gun, " and that on the portion of the gun facing him, he observed the hole "where the bullet comes out, " and a smaller hole below it. Next, an investigating officer testified over a hearsay objection that "[t]he victim [had previously] said that the gun had a silver or nickel plated top, or what we call upper, and the lower was black and then what struck me about what he said was he said it had two holes, one larger on top and one smaller hole on the bottom."

         The officer testified that the gun found in the defendant's Lexus "was a semi-auto and it had a distinct feature that I found which was it had the stainless steel upper with black lower." Over still another hearsay objection, the officer also testified that victim's description of the gun was "distinctive" as he described the gun as "a stainless steel upper with black lower, " and there was one hole over a smaller hole.

         The defendant denied pointing a gun at the victim, although he acknowledged that he owned a gun and was licensed to carry a concealed weapon. The concealed firearm license was entered into evidence. The defendant and his girlfriend testified that the gun was packed away the day of the incident, as the two were in the midst of moving and did not want the gun to be accessible to the girlfriend's toddler. The defendant's employer testified that the defendant left work the day of the incident around the timeframe of the incident.

         "The standard of review of a trial court's decision on the admissibility of evidence is generally an abuse of discretion standard. However, the question of whether evidence falls within the statutory definition of hearsay is a matter of law, subject to de novo ...


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