Broward County assault cases often come down to testimony. Sometimes there are videotape or audio recordings of what happened, but in other cases, eyewitness testimony is crucial to the case. There are also cases in which another witness’s testimony plays a crucial role; hearsay evidence is not admissible, however, unless an exception applies. In a recent appellate decision, the court considered a conviction for aggravated assault with a firearm. The case arose when the victim was driving home from work. The defendant pulled up behind him. The victim was driving over the speed limit, but braked suddenly. The defendant veered into a different lane. The defendant pulled his car alongside the victim’s car; the victim was a convicted felon. Both drivers had their windows down.
The defendant placed a gun on his car’s windowsill and spoke rudely to the victim. The victim said he had no problem, and the defendant drove on ahead. When traffic stopped, the defendant opened his car door and looked back at the victim. The victim drove in reverse, and the defendant sped off. The victim reported the license plate number to a 911 operator.
The police investigated. The victim described the gun as a silver automatic firearm. The defendant was arrested three weeks later and a gun that had a silver portion was retrieved from his car.
The case went to trial. The victim described the gun as chrome plated. He also described two holes on the part of the gun that faced him. An officer testified that the victim had previously said the gun had a silver top and that it had two holes. He also testified that the gun that was retrieved was a semi-automatic and was distinctive because it had a stainless steel upper and a black lower and had a larger hole over a smaller hole.
The defendant said he hadn’t pointed a gun at the victim, though he admitted he owned a gun and was licensed to carry a concealed weapon. He and his significant other claimed the gun had been packed away on the day in question. His employer testified he’d left work on the day of the event.
On appeal, the prosecutor didn’t dispute that the testimony to which the defense objected was hearsay. The testimony of the officer was offered to prove the physical characteristics of the gun the defendant allegedly brandished during the day in question, and it was hearsay. The question before the appellate court was whether the error was harmless.
Under the harmless error test, the state has the burden of proving beyond a reasonable doubt that either the error claimed didn’t contribute to the verdict or that there’s no reasonable possibility the error contributed to the conviction. In this case, the prosecution claimed that the testimony that had been erroneously admitted was cumulative to other testimony and evidence and was harmless.
The appellate court explained that the case hinged on the defendant’s credibility as to his claim that he didn’t have a gun on the day in question. It reasoned that the jury’s decision hinged on the law enforcement officer’s testimony and that his veracity was regarded as highly credible. Further the jury had asked to see the gun while deliberating. Therefore, there was no reasonable possibility that the hearsay testimony hadn’t affected the verdict. The appellate court reversed and sent back for a new trial.
If you are charged with assault or aggravated assault in Broward County, you should consult a skillful criminal defense attorney. Call The Hoffman Law Firm at (305) 249-0090 or (800) 223-1866, or contact us via our online form.
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