final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Lisa Porter, Judge; L.T. Case No. 13-8650
Richard L. Rosenbaum of the Law Offices of Richard Rosenbaum,
Fort Lauderdale, for appellant.
Jo Bondi, Attorney General, Tallahassee, and Allen R. Geesey,
Assistant Attorney General, West Palm Beach, for appellee.
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.
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 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.
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."
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.
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
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.
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
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 ...