80 So. 3d 1056
Fla. Dist. Ct. App.2012Background
- Bowens convicted of strong-arm robbery; defense challenged admission of a surreptitiously recorded conversation and a mistrial motion after a BOLO reference.
- Bowens and Michael were apprehended; a hidden tape in a patrol car recorded their conversation, including Michael panicking about arrest and Bowens attempting to calm him.
- Bowens sought to exclude the tape as hearsay and to argue the statements were testimonial under Crawford; the trial court denied the motion.
- The tape was played; Bowens moved for mistrial on Crawford grounds, which was denied.
- Court analyzed whether the surreptitious recording was testimonial and held the relevant statements were non-testimonial or context-setting, admitting Bowens’s statements as party admissions and Michael’s as contextual.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the surreptitious recording violated Crawford | Bowens argues Michael’s statements are testimonial and the recording should be excluded | Bowens contends the recording is non-testimonial or admissible as context | No Crawford violation; statements deemed non-testimonial or contextual |
| Whether the mistrial should have been granted due to BOLO reference | Bowens claims the BOLO reference was prejudicial and warranting mistrial | State argues no reversible error and trial court properly denied mistrial | Mistrial not warranted; denial affirmed |
Key Cases Cited
- United States v. Hendricks, 395 F.3d 173 (3d Cir. 2005) (contextual, non-testimonial in part; co-conspirator statements not testimonial)
- Benjamin v. State, 940 So.2d 371 (Ala.Crim.App.2005) (wire on subject to place statements in context; non-testimonial as to suspect)
- People v. Jefferson, 158 Cal.App.4th 830 (Cal.Ct.App.2008) (cell-jail conversation not testimonial; confidential recording in secret)
- Franklin v. State, 965 So.2d 79 (Fla.2007) (tests for testimonial statements based on totality of circumstances)
- Bullcoming v. New Mexico, 131 S. Ct. 2705 (2011) (primary purpose of statements to establish past events for prosecution)