IN THE SUPREME COURT OF FLORIDA CASE NO. SC AUSTIN EVANS, Petitioner, -vs- THE STATE OF FLORIDA. Respondent. ON PETITION FOR DISCRETIONARY REVIEW FROM THE DISTRICT COURT OF APPEAL OF FLORIDA, THIRD DISTRICT BRIEF OF PETITIONER ON JURISDICTION BENNETT H. BRUMMER Public Defender Eleventh Judicial Circuit of Florida 1320 NW 14th Street Miami, Florida 33125 (305) 545-1958 ROY A. HEIMLICH Assistant Public Defender Florida Bar No. 0078905 Counsel for Petitioner
TABLE OF CONTENTS PAGE INTRODUCTION... 1 STATEMENT OF THE CASE AND FACTS... 1 SUMMARY OF ARGUMENT... 2 ARGUMENT THE DISTRICT COURT ERRED IN HOLDING THAT THE STATEMENTS OF THE ALLEGED VICTIM WERE ADMISSIBLE AS EXCITED UTTERANCES... 3 CONCLUSION...10 CERTIFICATE OF SERVICE...11 CERTIFICATE OF COMPLIANCE...11 i
TABLE OF CITATIONS CASES Carroll v. State, 497 So. 2d 253 (Fla. 3d DCA 1985)... 8 Charlot v. State, 679 So. 2d 844 (Fla. 4th DCA 1996)... 7 Coluntino v. State, 620 So. 2d 244 (Fla. 3d DCA 1993).... 8 Corn v. State, 796 So. 2d 641 (Fla. 1st DCA 2001)... 7 Henyard v. State, 689 So. 2d 239 (Fla. 1997)... 4 Holmes v. State, 642 So. 2d 1387 (Fla. 2d DCA 1994)... 7 Lyles v. State, 412 So. 2d 458 (Fla. 2d DCA 1982)... 7 Perez v. State, 371 So. 2d 714 (Fla. 2d DCA 1979)... 8 Rodriguez v. State, 609 So. 2d 493 (Fla. 1993)... 8 Salter v. State, 500 So. 2d 184 (Fla. 1st DCA 1986)... 8 State v. Jano, 524 So. 2d 660 (Fla. 1988)... 3,4,5,7 ii
FLORIDA STATUTES Section 90.803(2)... 3 OTHER C.W. EHRHARDT, FLORIDA EVIDENCE 803 (2002)... 3 C.W. EHRHARDT, FLORIDA EVIDENCE 803.2 (2002)... 3,9 iii
INTRODUCTION Petitioner Austin Evans, the defendant in the trial court, seeks discretionary review of a decision of the Third District Court of Appeal filed January 22, 2003, that expressly and directly conflicts with decisions of this Court and of other District Courts cited below. The symbol A. refers to the opinion of the lower court, as set forth in the Appendix. STATEMENT OF THE CASE AND FACTS Defendant was charged with aggravated assault with a firearm on his girlfriend, Roseline Croissy, referred to in the opinion below as the victim. The District Court ruled (A. 2): Evans contends that the trial court erred by allowing into evidence hearsay from a tape of the victim s 911 telephone call. The State argues that the victim s hearsay statement was properly admitted into evidence as an excited utterance as defined by section 90.803(2), Florida Statutes (2001). [Section 90.803(2) was quoted in a footnote.] In this regard the trial court noted: I remember her [victim s] testimony very well. I remember her as being in a control[led] panic. And she tried to check the gun to relieve herself of the anxiety that built up about this whole episode. It didn t give her any relief to find that the thing was loaded. She was going to calm down--she was going to talk herself down, she found a way to calm down if only that gun was unloaded. She check[ed] the gun,
T. 26. found out it was loaded, and then she could not find much in the way of calm time to reflect in my opinion. 2
We agree with the trial judge that the hearsay statement qualified for admission as an excited utterance. SUMMARY OF ARGUMENT It was error for the District Court to permit the 911 tape and the alleged victim s out-of-court statements to a police officer to come into evidence to corroborate her testimony when the statements did not qualify as excited utterances and were thus inadmissible hearsay. Roseline s testimony indicated that she had ample time to engage in reflective thought and did engage in reflective thought after defendant allegedly threatened her and before she called 911. Defendant s contention was that he never threatened Roseline, and that the 911 call and other statements were fabricated to punish him for alleged infidelity. The jury should have been left to determine the credibility of Roseline s story on the basis of her trial testimony alone. 3
ARGUMENT THE DISTRICT COURT ERRED IN HOLDING THAT THE STATEMENTS OF THE ALLEGED VICTIM WERE ADMISSIBLE AS EXCITED UT- TERANCES Section 90.803(2) of the Florida Evidence Code provides that a hearsay statement is not inadmissible even though the declarant is available to testify as a witness where the hearsay statement qualifies as an excited utterance. Section 90.803(2) defines an excited utterance as a statement or excited utterance relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition. This exception to the hearsay rule is grounded in the belief that an excited utterance, like other hearsay statements admitted into evidence under other exceptions to the hearsay rule, possesses a circumstantial guarantee of reliability. C.W. EHRHARDT, FLORIDA EVIDENCE 803 at 724 (2002). The theory is that an excited person who cannot think is unlikely to lie. See C.W. EHRHARDT, FLORIDA EVIDENCE 803.2 at 731-33 (2002). In State v. Jano, 524 So. 2d 660 (Fla. 1988) the Court set forth the essential elements of an excited utterance: (1) there must be an event startling enough to cause nervous 4
excitement; (2) the statement must have been made before there was time to contrive or misrepresent; and (3) the statement must be made while the person is under the stress of excitement caused by the event. Jano, 524 So. 2d at 661 (citation omitted, emphasis added); accord, Henyard v. State, 689 So. 2d 239, 251 (Fla. 1997) (following Jano). The Jano Court clarified that the statement must have been made before there was time to fabricate, because where the time interval between the event and the statement is long enough to permit reflective thought, the statement will be excluded in the absence of some proof that the declarant did not in fact engage in a reflective thought process. Jano, 524 So. 2d at 662 (emphasis added) (quoting E. Cleary, MCCORMICK ON EVIDENCE 297 at 856 (3d Ed. 1984) (footnotes omitted). Here Roseline testified that defendant came over uninvited to see her at 2:30 or 3:00 in the morning. She said he pulled out a gun and put it towards her neck. She was able to calm him down, and they went into the house. She got him a pillow and a blanket and got him to lie down. She testified I kept thinking about what I can do, how am I going to calm him down.... Do I run, do I stay, do I use my head.... I had to make a choice. (T. 260). She 5
decided not to wake her brother or her children, who were sleeping in the house, because they might get hurt. After a while he started dozing off (T. 270). She thought to herself I m going to wait for him to doze off and I m going to get this gun [and] call the police (T. 270). She waited until she heard him snoring, because she knew then he was knocked out (T. 270). She thought that she didn t want anyone to get hurt. When he dozed off I slowly got the gun (T. 270-71). The witness then described her thought process after she had the gun. She crept into the other room [and] turned on the light (T. 271). She thought to herself if this gun [is] empty I won t do anything, except tell him to leave in the morning. But if this gun is loaded she would call the police (T. 271). The gun was loaded. She wrapped the gun in a handkerchief, intending to avoid getting her fingerprints on it (T. 300), ran across the street with the gun and asked her neighbor if she could use her phone (T. 272-73). She then called 911 (T. 273). The 911 call was made about an hour after the alleged assault (T. 274). 1 1 The State argued in the District Court (but not in the trial court) that the discovery that the gun was loaded was a separate exciting event, warranting the admission of excited utterances it provoked. This theory warranted admission of statements about the fact that the gun was loaded, but not 6
The tape of Roseline s 911 call was received in evidence and played for the jury. In addition, Officer Jones (who responded) was permitted to testify over objection as to what the alleged victim told him about what had happened. It is clear that Roseline had time to engage in reflective thought where the 911 call was made approximately an hour after the alleged assault. Moreover, the circumstance that Roseline had time to engage in reflective thought is dwarfed in significance by the fact that she actually did reflect. She testified that she thought about what she should do, should she run, or should she stay and try to calm defendant down, and she made a choice (T. 260). She decided not to wake her brother, because he might get hurt (T. 262-63). She testified that she decided to wait for defendant to doze off, and then get the gun (T. 270). She testified that when she examined the gun, she decided that if the gun was empty, she would wake defendant in the morning and send him home, but if the gun was loaded, she would call the police (T. 272-73). She also testified that she was trying to use her head (T. 260, 286), and that she was trying to keep things quiet so statements about an alleged assault nearly an hour before. See Jano, 524 So. 2d at 661 ( the statement must be made while the person is under the stress of excitement caused by the event (emphasis added). 7
that her brother would not wake up (T. 262-63). She avoided getting her fingerprints on the gun (T. 300). Roseline s statements on the 911 tape and to Officer Jones were thus made after she had time to contrive, fabricate or misrepresent, and after she had actually engaged in reflective thought. The statements therefore do not possess a circumstantial guarantee of reliability by reason of the circumstances under which they were made, and are inadmissible, not excited utterances. Roseline s live testimony at trial as to what happened was, of course, admissible. Her out-of-court statements were inadmissible to corroborate her testimony, and it was an abuse of discretion for the trial court to admit them, let the jury hear them, and let the jury determine whether Roseline deserved a best actress award for her performance on the 911 tape. 2 A statement as to what occurred does not become admissible merely because the victim is... in an excited state. Charlot v. State, 679 So. 2d 844, 845 (Fla. 4th DCA 1996). If the time interval between the event and the statement is long enough to permit reflective thought, the statement will be excluded in the absence of some proof that the declarant 2 The prosecutor argued in closing that jurors could tell from Roseline s voice on the 911 tape that she was telling the truth. 8
did not in fact engage in a reflective thought process. Id. (internal quotation and citations omitted). Accord, State v. Jano, 524 So. 2d at 662 (lapse of time is the most important factor in assessing whether there was time for reflective thought); Corn v. State, 796 So. 2d 641, 643-44 (Fla. 1st DCA 2001) (statement excluded where evidence did not show there had been no reflective thought); Holmes v. State, 642 So. 2d 1387, 1389 (Fla. 2d DCA 1994)( the time... allowed an opportunity for reflection or fabrication and removed the indicia of reliability inherent in a spontaneous statement ); Lyles v. State, 412 So.2d 458, 460 (Fla. 2d DCA 1982) ( the utterance must have been made before there has been time to contrive and misrepresent ); Salter v. State, 500 So. 2d 184, 186 (Fla. 1st DCA 1986) (opportunity to deliberate). The admission of these hearsay statements to corroborate Roseline s trial testimony was severely prejudicial. The improper introduction of a prior consistent statement cannot be considered harmless error where the credibility of the state s only eyewitness... was the crucial issue which the jury had to resolve. Coluntino v. State, 620 So. 2d 244, 245 (Fla. 3d DCA 1993). Moreover, where, as here, an inadmissible statement is introduced through the testimony of a police 9
officer, there is additional prejudice to the defendant: [t]he rationale prohibiting the use of prior consistent statements is to prevent putting a cloak of credibility on the witness s testimony. When a police officer, who is generally regarded by the jury as disinterested and objective and therefore highly credible, is the corroborating witness, the danger of improperly influencing the jury becomes particularly grave. Rodriguez v. State, 609 So. 2d 493, 500 (Fla. 1993), quoting Carroll v. State, 497 So. 2d 253, 256-57 (Fla. 3d DCA 1985), and Perez v. State, 371 So.2d 714, 716-17 (Fla. 2d DCA 1979). Moreover, the prosecutor in her closing emphasized that Roseline s tone of voice on the 911 tape and the consistency between her trial testimony and her statements to Officer Jones and on the 911 tape indicated that her trial testimony was true. This argument augmented the prejudice flowing from the inadmissible hearsay statements. The premise for the excited utterance exception to the hearsay rule is that when persons are startled by an event, and make a statement concerning that event before they have an opportunity to engage in reflective thought or fabricate a false statement, the statement that they make while excited has a special reliability because it is highly likely to be 10
true. See EHRHARDT, FLORIDA EVIDENCE 803.2 at 731-33 (2002). The rulings below permitted the statements of the alleged victim in this case to be received in evidence even though she had an opportunity to engage in reflective thought, even though she testified that she availed herself of that opportunity and engaged in reflective thought, and even though she had ample opportunity to fabricate a statement concerning defendant, who had shown up uninvited at her house at 2 or 3 o clock in the morning. The rulings below thus sever the excited utterance exception to the hearsay rule from its underlying rationale by creating a doctrine authorizing the admission of excited fabrications. The rulings below authorize the admission of hearsay statements into evidence even though there has been an opportunity for reflective thought that was been utilized, and an opportunity for fabrication which may have been taken, so long as the hearsay declarant remained excited when she made the statement offered in evidence. Such statements are not within the rationale of the excited utterance exception to the hearsay rule because they have no special guarantee of reliability; indeed, when persons who are startled and excited have an opportunity to engage in reflective thought while they are in a state of controlled panic, the likelihood that they 11
will fabricate false statements is increased, so that their out-of-court comments have a special degree of unreliability, particularly warranting their exclusion. CONCLUSION The Court should grant discretionary review. Respectfully submitted BENNETT H. BRUMMER Public Defender Eleventh Judicial Circuit of Florida 1320 Northwest 14th Street Miami, Florida 33125 By: ROY A. HEIMLICH Assistant Public Defender 12
CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was mailed to Douglas J. Glade, Assistant Attorney General, Office of the Attorney General, Department of Legal Affairs, 110 S.E. 6th Street, Fort Lauderdale, FL 33301 on February 14, 2003. ROY A. HEIMLICH Assistant Public Defender CERTIFICATE OF COMPLIANCE Undersigned counsel certifies that the type used in this brief is Courier New 12 point, except that the headings are in 14 point proportionately spaced Times New Roman. ROY A. HEIMLICH Assistant Public Defender 13
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