Opinion
No. 95-2353.
October 23, 1996.
Appeal from the Seventeenth Judicial Circuit Court, Broward County, Sheldon Schapiro, J.
Richard L. Jorandby, Public Defender, and Karen E. Ehrlich, Assistant Public Defender, West Palm Beach, for appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Michelle A. Konig, Assistant Attorney General, West Palm Beach, for appellee.
Appellant, Allen Donaldson, was tried by jury and convicted of kidnapping and burglary of a conveyance with assault. Donaldson was sentenced to concurrent twenty year sentences on each count as an habitual felony offender. We affirm in part and reverse in part.
We reverse the conviction and sentence for kidnapping on the authority of Rogers v. State, 660 So.2d 237, 241 (Fla. 1995). There, under circumstances strikingly similar to those in the instant case, our supreme court held that a conviction for kidnapping could not stand where the victim/automobile driver, although threatened with a weapon, never obeyed the assailant's commands to proceed in certain directions, or to stop the car.
We also agree with appellant that the trial court erred in refusing to permit him to display his voice before the jury, unless he took the witness stand. Appellant wanted to demonstrate his voice because the victim had told the police that the assailant had an accent. The cases have held that the display of a physical characteristic, such as tattooed arms or the sound and quality of a human voice, is permissible non-testimonial evidence. United States v. Bay, 762 F.2d 1314 (9th Cir. 1984) (tattooed arms); Macias v. State, 515 So.2d 206 (Fla. 1987) (speaking voice). Nevertheless, in view of the overwhelmingly strong evidence of guilt in this case, we find the error harmless. State v. DiGuilio, 491 So.2d 1129 (Fla. 1986).
We have considered the other issues raised on appeal and find no error. Accordingly, we affirm the conviction and sentence for burglary of a conveyance with assault.
Affirmed in part; reversed in part.
GLICKSTEIN, J., and LUCY C. BROWN, Associate Judge, concur.