99 So. 3d 570
Fla. Dist. Ct. App.2012Background
- Powell was convicted of capital sexual battery of a person under 12, information filed April 5, 2010, alleging the offense occurred on or before June 1, 1997, the victim is his stepdaughter who is now an adult.
- First trial ended in mistrial; second trial resulted in a guilty verdict and raised evidentiary issues on out-of-court statements admitted under the excited utterance exception.
- The victim testified to long-ago abuse beginning when she was about eight; she described sexual acts including touching, penetration by tongue, and oral sex, with delay in disclosure.
- During trial, the victim testified about a May 2008 phone call with her mother; the mother’s inquiry prompted a denial followed by a later admission of abuse, with the trial court treating the later admission as an excited utterance.
- The sister testified that Powell had sexually assaulted her as a child; the mother recounted the sister’s statement to her, leading to another excited utterance admission by the sister.
- Defense presented Emily and Jeffrey Powell, who testified the sisters showed no signs of abuse, challenging the credibility and suggesting lack of ongoing abuse in the family.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the two out-of-court statements qualify as excited utterances | State contends statements were excited utterances due to shock from events. | Powell argues statements describe events years earlier and were not made under ongoing stress. | Not admissible; neither statement meets excited utterance criteria. |
| Whether admission of the statements was harmless error | Error was harmless because statements were cumulative to in-court testimony. | N/A to this issue in reasoning, Powell contends potential non-harmless error would affect verdict. | Not harmless beyond reasonable doubt; reverses for new trial. |
Key Cases Cited
- State v. Jano, 524 So.2d 660 (Fla.1988) (excited utterance criteria; stress from event must relate to the subject matter)
- State v. Allen, 519 So.2d 1076 (Fla.1st DCA 1988) (statement made months after event not excited utterance)
- Bell v. State, 847 So.2d 558 (Fla.3d DCA 2003) (stress may exist for hours after event; time frame matters)
- Edmond v. State, 559 So.2d 85 (Fla.3d DCA 1990) (admission of statements made hours after offense)
- Akien v. State, 44 So.3d 152 (Fla.4th DCA 2010) (statement made minutes after rape; timing supports excited utterance)
- Chavez v. State, 25 So.3d 49 (Fla.1st DCA 2009) (hearsay and exceptions; appellate review standards)
- Burkey v. State, 922 So.2d 1033 (Fla.4th DCA 2006) (hearsay and evidence-rule considerations; standard of review)