Can a Police Officer Testify Concerning Prior Threats Made by the Defendant to a Deceased Witness ?

In Spencer v. State, 645 So. 2d 377, 383 (Fla. 1994), relying on Waterhouse and Clark, we found no error in the trial court's allowing a police officer to testify concerning prior threats made by the defendant to a witness. Although we have not previously required a showing of necessity as a threshold requirement for the admission of penalty phase hearsay admitted under section 921.141(1), we note that in Spencer, the witness was deceased, thereby giving rise to a good-faith reason for not calling the witness. We also found the testimony to be harmless. See id. To the extent that Spencer relied on cases involving an officer testifying to the defendant's prior felonies, we clarify that the mere fact that a defendant has an opportunity to cross-examine the witness who is testifying to the hearsay does not alone constitute a fair opportunity to rebut the hearsay statement.