Summary
In McIntosh v. State, 858 So.2d 1098 (Fla. 4th DCA 2003), review denied, 870 So.2d 823 (Fla. 2004), the court held it was harmful error not to exclude two guns not shown to be involved in the crime, while admitting the murder weapon which was found with them. While we consider this holding dubious even on its own facts, it is distinguishable because, unlike this case where there was only a blanket objection to all three weapons, McIntosh objected specifically to the two weapons unconnected to the crime.
Summary of this case from Valencia v. StateOpinion
Case No. 4D01-1416.
Opinion filed October 15, 2003. Rehearing Denied November 25, 2003
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Hubert R. Lindsey, Judge; L.T. Case No. 99-2990 CFA02.
Michael P. Maher, West Palm Beach, for appellant.
Charles J. Crist, Jr., Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
Having been tried and convicted of robbery with a firearm and attempted second degree murder with a firearm, Ian McIntosh appeals. Among other things, McIntosh claims that the trial court's ruling permitting the State to introduce evidence of two firearms not connected to the crimes for which he was on trial requires reversal. We agree.
A ski mask, a glove, two rolls of duct tape, two walkie talkies, a 9 mm Sig Sauer, a .38 revolver, and a .357 magnum were found in the black duffle bag that police recovered from under the porch of McIntosh's sister's home. The incontrovertible evidence at trial was that the weapon utilized in the commission of the crimes was a 9 mm Sig Sauer. Despite this, the State was permitted to place evidence of the .357 and the .38 before the jury. Since the 9 mm was unquestionably the weapon used by the perpetrator and there was no evidence that these other two firearms were in any way tied to the crimes, the admission of the .38 and the .357 was error. See O'Connor v. State, 835 So.2d 1226, 1231 (Fla. 4th DCA 2003) (holding that "where the evidence at trial does not link a weapon seized to the crime charged, the weapon is inadmissible"); Huhn v. State, 511 So.2d 583, 588 (Fla. 4th DCA 1987).
The State contends that any error was harmless, relying on Herman v. State, 396 So.2d 222 (Fla. 4th DCA 1981). Herman is distinguishable. There, the panel reasoned that the admission of a shotgun that was not shown to be the weapon used in the shooting was harmless because it is not illegal to own a shotgun and "[t]here are no adverse connotations, such as there might be in the case of ownership of a Saturday night special or a zip gun, which would give rise to prejudicial inferences on the part of the jury." Id. at 229. "Adverse connotations" similar to those referenced in Herman are present here, particularly given the number of weapons found and where they were found, i.e., not in a locked box or case in the home, but in a duffle bag under a porch and with the weapon used in the crimes. In the end, we cannot find that there is no reasonable possibility that the error affected the jury's verdict. See Kennedy v. State, 853 So.2d 571, 573 (Fla. 4th DCA 2003) ("The harmless error test `places the burden on the state, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction.'")(quoting State v. DiGuilio, 491 So.2d 1129, 1135 (Fla. 1986)). We reverse the convictions and remand for a new trial.
POLEN and KLEIN, JJ., concur.
NOT FINAL UNTIL DISPOSITION OF ANY TIMELY FILED MOTION FOR REHEARING.