I would hope that state and defense would agree to spare Austin McLendon the ordeal of testifying. Maybe an affidavit could be substituted, or his sister could testify for him, or his testimony could be done without. The joint 911 call will be played in any case.
I looked over the Florida Evidence Code
for admission of affidavits in lieu of testimony, and I didn't find any mention of the issue.
Austin's statements to his sister after the shooting would be both spontaneous statements and excited utterances, sections (1) and (2) of Fla. Stat. § 90.803.
Hearsay exceptions under 90.803 do not require that the declarant be unavailable. Sierra McLendon is an adult, 18 at the time of the shooting, so 19 or 20 today.
Judge Nelson wouldn't allow Selma Mora
to give an opinion on whether the screams were of an adult or child, so presumably Austin can't either.
I don't think we know what Austin would say about the color of the clothing. We've had some discussion related to this, for example starting here, here,
He didn't mention clothing color on the 911 call. That being so, I wouldn't expect he would have mentioned it to Sierra either, but I don't know of any information on that subject.
If Austin testifies that the upper garment wasn't red or that he couldn't tell or doesn't remember, he would be asked about his earlier statements. I think that includes statements to reporters and anyone else, not just investigators. Fla. Stat. § 90.608
says 'statements of the witness which are inconsistent with the witness’s present testimony', without qualification.
If Austin denies making any alleged statements, recordings can be played, or persons who heard the statements could be called.
Bottom line, I think Austin's testimony would at best be a wash for the state, and might help the defense to some degree. I don't know why they would want him to testify, if the defense would agree not to hold it against them that they didn't call him.
There may be some reason not obvious to me. I am not
I don't think Austin's testimony would help the defense very much, in a case in which they are way ahead. That he saw only one person, where we know there were two, might confuse the jury. It certainly confuses me.
The child is in a sorry predicament. His own mother has gone on national television to impeach him (Al Sharpton, 3/28/12
; Nancy Grace, 3/39/12
). I believe he must be under tremendous pressure, from his family and his 'community'. I would hope both sides would have a little compassion.
When I was looking over the earlier discussion to decide where to link, I came across this,
a video still and a map based on the still, showing where Austin indicated he was standing before his dog got loose.
Someone else on the thread found the video and linked it. The link still works, but the video has been taken down, license expired. I don't know if or where the video is still available.
All of the above are my completely non-professional opinions.