186 So. 3d 1056
Fla. Dist. Ct. App.2016Background
- Victim was found stabbed to death in December 2007; defendant (cohabitant) was arrested after admitting involvement and later convicted of first-degree murder with a deadly weapon.
- Prior history of domestic violence: defendant previously fired a gun at the victim (arrested but victim waived prosecution) and allegedly put a knife to her throat; restraining-order paperwork was discussed.
- On the morning of the murder, the daughter arrived, observed blood and a sheet at the front door, and made two 911 calls; during the second call she relayed the aunt’s report that the defendant had told the aunt “it’s serious this time” and he would “turn himself in.”
- The aunt also called 911 immediately after and, on that tape, pleaded for help and reported seeing blood and that the defendant admitted hurting the victim; at trial the aunt denied making some statements but was impeached by the tapes.
- Defense claimed the stabbing was self-defense after a struggle with the victim; defendant admitted drug use and prior convictions but also admitted involvement in the victim’s death to multiple people.
- Trial court admitted the daughter’s 911 statement (which repeated the aunt’s account) as non-hearsay via the excited-utterance exception to the hearsay rule; defendant appealed, arguing double hearsay and that the aunt’s out-of-court remark was not an excited utterance.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of daughter’s 911 call repeating aunt’s report | State: admissible because aunt’s statement was an excited utterance and daughter’s repetition falls within exception | Smith: double hearsay; aunt’s statement to daughter not an excited utterance and thus inadmissible | Court: admissible — aunt’s remark qualified as an excited utterance, so daughter’s repetition was admissible |
| Whether aunt’s 911 call showed sufficient excitement | State: aunt’s voice, pleas for help, and contemporaneous content show stress from startling event | Smith: aunt later denied statements, undermining excited-utterance claim | Court: transcript and tape showed excitement; aunt’s inconsistent testimony undermined credibility; excited-utterance requirement satisfied |
| Timing / opportunity to fabricate | State: aunt’s statement was made immediately before her 911 call — too close in time to contrive | Smith: implied risk of fabrication given family ties and inconsistent testimony | Court: order of calls and tapes show statement occurred before time to contrive; admissible |
| Prejudice / harmless error | State: any error would be harmless/cumulative because defendant admitted involvement to others | Smith: argued admission of hearsay prejudiced jury | Court: did not find reversible error; affirmed conviction (error analysis unnecessary given admissibility finding) |
Key Cases Cited
- Browne v. State, 132 So. 3d 312 (Fla. 4th DCA 2014) (standard of review for admissibility and hearsay issues)
- Lucas v. State, 67 So. 3d 332 (Fla. 4th DCA) (hearsay/admissibility principles)
- Powell v. State, 99 So. 3d 570 (Fla. 1st DCA) (de novo review for hearsay exception application)
- Thomas v. State, 125 So. 3d 928 (Fla. 4th DCA 2013) (definition and elements of excited utterance under § 90.803(2))
- Barron v. State, 990 So. 2d 1098 (Fla. 3d DCA 2007) (applying excited-utterance exception in similar factual context)