Opinion
No. 79-936.
August 5, 1980.
Appeal from the Circuit Court, Dade County, Frederick N. Barad, J.
Bennett H. Brummer, Public Defender and Bruce A. Rosenthal and Andrew Kassier, Asst. Public Defenders, for appellant.
Jim Smith, Atty. Gen., and Susan Minor, Asst. Atty. Gen., for appellee.
Before HUBBART, BASKIN and DANIEL S. PEARSON, JJ.
The judgment of conviction and sentence under review is affirmed upon a holding that: (1) the trial court improperly admitted in evidence a statement made by the defendant to the police while under arrest as it was fatally tainted by prior statement made by the defendant to the police, which latter statement was properly suppressed by the trial court under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); see Harney v. United States, 407 F.2d 586 (5th Cir. 1969); and (2) the above error, however, was harmless in the context of this case because (a) the improperly admitted statement was exculpatory in nature, (b) the improperly admitted statement was similar to a properly admitted statement of the defendant made prior to being taken into police custody, and (c) an unimpeached eye witness positively identified the defendant at trial as the perpetrator of the crimes for which he stands convicted. Ashley v. State, 370 So.2d 1191 (Fla. 3d DCA 1979); Ballard v. State, 323 So.2d 297 (Fla. 3d DCA 1975); § 924.33, Fla. Stat. (1979).
Affirmed.