THE TRIAL COURT ERRED IN ADMITTING TESTIMONY OF A POLICE DETECTIVE WHO TESTIFIED THAT ANOTHER OFFICER TOLD HIM THE DECEDENT HAD AN EAR BUD IN HIS EAR WHILE LYING ON THE GROUND AFTER THE ACCIDENT – – INADMISSIBLE HEARSAY COULD HAVE POSSIBLY AFFECTED THE VERDICT RENDERING THE ERROR HARMFUL AND NECESSITATING A NEW TRIAL FOR THE PLAINTIFF
Dayes v. Warner Enterprises, 46 Fla. L. Weekly D333 (Fla. 3rd DCA January 27, 2021):
The plaintiff’s husband was killed at work when a tractor-trailer backed over him. The plaintiff sued the owner of the tractor-trailer, along with its driver employee.
The main argument on appeal was the plaintiff’s contention that the trial court erred in allowing the defendants to read to the jury the deposition of a police detective who testified that another officer told him that the decedent had an ear bud in his ear while lying on the ground after the accident. The plaintiff was a security guard working for a third party contractor, tasked with logging tractor-trailers out of the distribution center.
A trial court’s decision to admit evidence is reviewed under the abuse of discretion standard, but that discretion is limited by the Evidence Code and applicable case law.
In this case, the court assumed – without deciding – that the police detective was testifying as an expert regarding his homicide investigation. The court then explained that while an expert may undoubtedly rely on hearsay in rendering opinions, expert testimony may not be merely used as a conduit for the introduction of otherwise inadmissible evidence.
The court was also concerned that the other witness who saw the decedent on the ground either could not recall whether he had an ear bud in his ear, or did not testify to it. While there was evidence that the decedent had ear buds on his person, the only evidence that he had one in his ear came from the detective’s testimony relating what another officer told him. However, according to the reporting officer’s own deposition, he could not recall whether or not the decedent had an ear bud in his ear after the accident, and did not recall making a statement to the other officer who testified about that.
Thus, not only did the court err in admitting this hearsay testimony, the court could not find the error admitting it was harmless, because harmless error occurs only when the beneficiary of the error demonstrates that there is no reasonable possibility that the error contributed to the verdict.
The defendants could not prove that there was no reasonable possibility that the admission of the hearsay that the decedent had an ear bud in his ear did not contribute to the defense verdict, as such evidence went to liability in general, and not just comparative negligence as the defense argued. Because the hearsay bolstered the defendants’ case that they were not negligent, and the defendants hammered on the ear buds during their direct examination of their expert, the driver, and during closing argument, the court found that the admission of evidence that should have been excluded, contributed to the verdict.