Lead Opinion
Dеvin Gregory Roop appeals his convictions and .sentences for throwing a deadly missile at an occupied vehicle, see § 790.19, Fla. Stat. (2013), and criminal mischief ($200 or less), see § 806.13(1)(b)(1), Fla. Stat. (2013). We affirm in all respects. We write only to address Mr. Roop’s argument that the trial court erroneously admitted at trial that portion of a recording of a 911 call placed by the victim, Frank Yeater, during which Mr. Yeater identified Mr. Roop as .the perpetrator. Mr. Roop contends that Mr. Yeater’s statement on the recording was inadmissible hearsay. The trial court admitted the statement based on the State’s contention that the spontaneous statement and excited utterance exceptions to the hearsay rule applied. See § 90.803(1), (2), Fla. Stat. (2014). We find no abuse of discretion in the trial court’s admission of Mr. Yeater’s statement of identification under the excited utterance exception and further conclude that the admission of that statement, even if error, was harmless under the facts of this case.
I.
Someone threw a metal pipe at. Mr. Yeater’s truck as he was driving along a stretch of road in Lake Wales. Mr. Yeater said that someonе was Mr. Roop. Mr. Roop’s stepfather, however, said that Mr. Roop had been at his house all- day on the day in question. The jury believed Mr. Yeater and convicted Mr. Roop.
At the time of the incident, Mr. Yeater had known' Mr. Roop for well over a decade. They had grown up in the same neighborhood and gone to the same school, and they used to be friends. Over time, the friendship fizzled and the relationship turned sour. The two men spoke disrespectfully to one another, and Mr. Yeater felt insulted by Mr. Roop. On New Year’s Eve 2013, there was an incident between Mr. Yeater and Mr. Roop’s stepbrother. Mr. Roop was. there when it happened. The police were called, to the scene of the incident, but no one was charged with any offenses.
Five days later—around noon on January" 5, 2014—Mr. Yeater was driving his truck down a two-lane country road. He noticed a black car approaching him from behind at a quick pace. The car moved to pass Mr. Yeater’s truck in the opposite lane. According to Mr. Yeater, Mr. Roop leaned out of the car’s rear passenger window and threw something at Mr. Yeater’s truck. Mr. Roop knew that the truсk was Mr. Yeater’s because he had seen him driving it before. The object struck the driver’s side door near the handle, missing Mr. Yeater but damaging the truck.
Seconds later, Mr. Yeater turned around, returned to where the incident
The case proceeded to trial. After the jury was selected, but before any evidence was presented, the trial court heard a motion the State filed earlier that day seeking a ruling on the admissibility of a recording of Mr. Yeaters call to 911, including his statement on that call that Mr. Roop was his assailant. Without objection from either side, the motion was presented to the trial court based on the parties’ statements of what the evidence would show and a recording of the 911 call. The State proffered that Mr. Yeater would testify that a couple of minutes after the pipe was thrown at the car, Mr. Yeater pulled over to the side of the road, called 911, and identified Mr. Roop as the perpetrator and argued that Mr. Yeater was excited at the time of the 911 call even though he might seem calm on the recording. It argued and requested a determination that Mr. Yeater’s identification of Mr. Roop was admissible as either an excited utterance or a spontaneous statement. Mr. Roop’s counsel stated that Mr. Yeater testified at deposition that he was initially going to “forget about it,” but then decided to turn around because hé was concerned, that “something further might happen” with Mr. Roop and he wanted to “put it on the record.” He argued that this showed that Mr. Yeater was not under the stress of the excitеment caused by the event when he called 911 such that the excited, utterance exception would apply and further that the lapse of time before calling 911 also prevented the spontaneous statement exception from applying. The trial court then listened to the full recording of the 911 call and thereafter ruled that a redacted recording, which 'included Mr. Yeater’s identification of Mr. Roop as the perpetrator, would be admissible.
Mr. Yeater was the State’s first witness at trial. He related the facts of the offense, including his identification of Mr. Roop as the perpetrator and his discovery of the metal pipe, just as described above. After he described what happened, the State asked Mr. Yeater about his call to 911, and the following exchange occurred:
THE STATE: Did the black car that was containing Mr. Roop pull over on the side of the road after this?
MR. YEATER: No. It continued even quicker to get away.
THE STATE: Okay. Did you pull over on the side of the road?
MR. YEATER: At first I continued to keep on going, and then I decided to turn around and—to go grab—see whatever it was, and then go pick it up.
THE STATE: Did you call 911?
MR. YEATER: Yes.
THE STATE: About how long after this incident occurred did you call 911?
MR. YEATER: Two minutes.
THE STATE: Are you approximating two minutes?
MR. YEATER: Yes, it was approximately two minutes.
THE STATE: Okay. Aré you scared at this point?
MR. YEATER: Yes. I was scared at that point.
THE STATE: Feeling any other emotions.
MR. YEATER: Yes, I was frightened, I didn’t know what—I didn’t know what his intentions were to do.
.The trial court thereаfter excused the jury so that it could listen to the redacted recording the State had prepared in accord with its earlier instructions. After listening to the recording, the trial court asked the parties for comment. Although Mr. Roop renewed his objections to the admission of the recording, he did not seek to voir dire Mr. Yeater about the circumstances surrounding the 911 call or' to present other evidence bearing on the admissibility of Mr. Yeater’s statements to 911 as excited utterances or spontaneous statements. The redacted recording was admitted over Mr. Roop’s renewed objection, and the jury heard Mr. Yeater’s identification of Mr. Roop as his assailant and his narration of his search of the object that struck his truck.
On the cross-examination that followed, Mr. Yeater stated that, after his truck was hit by the pipe, he initially intended to continue driving but decided seconds later to turn around. On redirect, Mr. Yeater stated that he “was just going to let it go” at first but then had decided to call the police “[bjecause after initially thinking of who it was, I knew this wasn’t going to be a—it wasn’t going to stop with Devin Roop.” No additional objection was raised based on this tеstimony.
After the State rested, Mr. Roop called his stepfather, Russell Brown, Sr. Mr. Brown has known Mr. Roop since he was born and considers him a son. His biological son is the. stepbrother.of Mr. Roop and was involved in the incident with Mr. Yeater five days, before the pipe was thrown at his car. Mr. Brown testified that on the day of the incident, Mr. Roop had been at his residence all day to celebrate the birthday of Mr. Roop’s mother.
On cross-examination, Mr. Brown admitted that'until he was subpoenaed by the State toward the end of 2014, he had not mentioned to anyone that Mr. Roop had been with him that day. He also admitted that he knew beforé then that Mr. Roop was being prosecuted for throwing a pipe at Mr. Yeater’s truck. He initially said he had not mentioned anything about Mr. Roop’s alibi because he was “try[ing] not to get into none of that.” Later, however, he stated that he did not say anything because he had not realized that the inch-dent with Mr. Yeater happened on the same day as the celebration at his house. Mr. Brown testified, without objection, that although he discussed this prosecution with Mr. Roop, Mr. Roop never told him that the incident happened! on the same day hе spent at Mr. Brown’s house. Mr. Roop did not testify.
Tke jury found Mr. Roop guilty on both counts. After denying Mr. Roop’s motion for new' trial, the trial court sentenced him to concurrent terms of fifteen years’ imprisonment as a prison releasee réoffender on the count for throwing a deadly missile and to time served on the count for criminal mischief. This is Mr. Roop’s timely appeal.
II.
Mr. Roop asserts that the trial court erred in admitting the redacted recording of the 911. call containing Mr, Yeater’s identification of Mr. Roop because it “was completely hearsay” and “[tjhere was no indication on the record that the evidence
Although we review a trial court’s decision concerning the admissibility of evidence for abuse of discretion,- we are mindful that the trial court’s discretion is limited by the rules .of evidence and controlling decisions interpreting them. See Davis v. State,
As interpreted by the courts, to qualify for admission under the excited utterance exception, “the statement must be made: (1) ‘regarding an event startling enough to cause nervous excitement’; (2) ‘before there was time to contrive or misrepresent’; and (3) ‘while the person was under the stress or excitement caused by the event.’” Hudson,
>Under that standard of review, we are bound to affirm the trial court’s admission of Mr. Yeater’s identification of Mr. Roop to 911 so long as that decision was not arbitrary, fanciful, or unreasonable in the sense that reasonable people could not conclude that the State’s predicate was sufficient to admit it as an excited utterance,
Startling event. Before the 911 recording was admitted over Mr. Roop’s renewed objection, Mr. Yeater testified that while he was driving his truck, a car quickly overtook him and a passenger threw a metal pipe at him,- damaging his truck. We have no hesitation in concluding that reasonable people could find that this testimony established an event startling enough to cause nervous excitement. No one in this case—neither Mr. Roop nor the dissent— contends otherwise.
Time to contrive or misrepresent. Likewise, we have little difficulty concluding that a reasonable jurist could find that the State sufficiently established that Mr. Yeater identified Mr. Roop to 911 before there was time to contrive or misrepresent. In making such decisions, the courts have eschewed bright-line, hours- and-minutes rules based on the time between the startling event and the declarant’s statement. See Rogers v. State,
The State’s predicate in this case was sufficient to establish the absence of time to contrive or misrepresent. Through Mr. Yeater’s testimony and. the recording of his 911 call, the State showed that (1) someone threw a metal pipe at Mr. Yeater while he was driving; (2) Mr. Yeater believed it was Mr. Roop; (3) shortly thereafter, Mr. Yeater turned around to find the object; (4) he called 911 rоughly two minutes after his truck had been struck by the object; (5) at the time he called 911, he was frightened and scared because he was worried about what else Mr. Roop, with whom he shared some bad blood and a recent incident, might try to do; and (6) after responding to the 911 operator about his location, Mr. Yeater immediately and without hesitation stated that Mr. Roop had thrown the pipe at him. This testimony and evidence may reasonably be interpreted as establishing an out-of-the-ordinary and dangerous startling event, a short interval between the event and the statement, a frightened declarant concerned for his safety, and a fast and confident identification of the perpetrator to the law enforcement officials. In our view, these circumstances were sufficient to permit a reasonable trial judge to conclude that at the time he identified Mr. Roop as his assailant, Mr. Yeater was acting on impulse and not with the benefit of time sufficient To -overcome his instincts and fabricate a story.
Although we have been unable to -locate an excited utterance case on precisely these facts, Florida courts havе found the exception properly applied in cases involving fact's that we would expect to provoke a similar level of excited reaction, as well as on facts that involve more stressful events but- also substantially longer intervals between event and- subsequent statement than involved here. See, e.g., Cox v. State,
The dissent reaches a different conclusion because it believes the record shows that Mr. Yeater “acknowledged” having had the “ability to reflect” because he testified that he initially kept driving but then decided to turn around to see what had been thrown at him and call 911. From there, it reasons that the trial court erred by failing to require the State to further prove that Mr. Yeater did not in fact engage in reflective thought. See Williams,
The first is procedural. The argument that Mr. Yeater acknowledged the passing of sufficient time for reflective thought, and thát the State was therefore required to prove that he did not in fact reflectively think, is an argument only of the dissent’s creation. Mr. Roop has not presented the argument for our decision because he has not made the argument anywhere in his brief. Indeed, he did not even make this argument in the trial court. The dissent’s judgment that we should reverse on the basis of a ground not argued is “at odds with the structure of the appellate process which requires that a reviewing court ordinarily reverse only on the basis of the specific arguments presented by the appel-tent.” I.R.C. v. State,
The second is substantive. Our standard of review here is abuse of discretion, which means that the dissent must show that its construction of the evidence—i.e., that Mr. Yeater acknowlеdged having the time to reflect—is the only reasonable one. Truth be told, Mr. Yeater did not acknowledge having the ability to reflect in the sense of having admitted that he had time to do so. That is just the dissent’s interpretation of his testimony that after the pipe hit his truck, he initially continued driving and then decided to turn around. That, however, is not the only reasonable interpretation of Mr. Yeater’s testimony^ On the contrary, before it admitted the 911 recording over Mr. Roop’s renewed objection, the trial judge heard Mr. Yeater’s testimony that he and Mr. Roop had an aborted friendship, that there had been an incident involving the two men just five days prior to the pipe-throwing incident, and that, when he decided to turn around, Mr. Yeater believed Mr. Roop had just thrown a heavy object at him and was frightened, scared, and unsure of what Mr, Roop’s intentions were. We note in this regard that the trial court had the ability to observe Mr. Yeater on the stand and to assess his credibility with regard to these
One reasonable inference from the facts to which Mr. Yeater testified is that that the two-minute interval of time between the pipe hitting his truck and his call to 911 was sufficient only for decision driven by fear and instinct, rather than conscious deliberation. It is not at all difficult to imagine someone in the situation to which Mr. Yeater testified, alone on an isolated road and just having had a pipe thrown at his truck by a person with whom he had a bad history, being frightened about that person’s next move and impulsively thinking “I’d better call 911 because I don’t know what he’s going to do next.” That kind of decision—made a very short time after the startling event—can quite reasonably be interpreted "as the product of reaction to a startling situation rather than the product of time for conscious deliberation, much like any crime victim might decide to call 911 in the wake of the stressful event. A decision to admit Mr. Yeater’s statement to 911 based on that interpretation of the evidence, therefore, would be one a reasonable judge could make, The fact that the dissent might have a different interpretation of the evidence is insuffi-dent to overcome the abuse of discretion standard we apply to the trial court’s decision.
Under the stress .of excitement. Mr. Yeater testified that at the time he called 911 he was scared, frightened, and unsure of Mr. Roop’s intentions. No. one contends in this appeal that this testimony was insufficient to show that Mr. Yeater remained under the stress of excitement caused by the throwing of a pipe at his truck when he identified Mr. Roop .to. the 911 operator. Accordingly, the trial court did not abuse its discretion, in admitting the recording of that identification.
III.
Even if the trial court had erred in admitting the recording of Mr. Yeater’s
The first possibility is easily disposed of. As substantive evidence of Mr. Roop’s guilt, the evidence was merely cumulative of Mr. Yeater’s trial testimony. See Torres-Arboledo v. State,
Superficially, the second possibility—that the admission enhanced the credibility of Mr. Yeater’s in-court testimony in the jury’s mind because he said the same thing to 911—appears more problematic. This trial boiled down to a credibility contest between Mr. Yeater, who said Mr. Roop
Looking bеneath the surface, however, two related facts specific to this case convince us that any bolstering effect from the admission of the 911 call was immaterial. The first is that the defense attack on Mr. Yeater’s
The second salient feature of this case from a harmless error perspective is that the credibility of Mr. Brown’s testimony establishing Mr. Roop’s alibi was badly damaged on cross-examination. Cf. Newton v. State,
Given the patent and severe credibility problems with Mr. Roop’s alibi witness, combined with the de minimis bolstering effect of the 911 recording, we conclude that there is no reasonable possibility that the admission of the 911 call contributed to the verdict. Thus, the admission of that recording, even if error, was harmless beyond a reasonable doubt and provides no basis for reversal.
IV.
In sum, we conclude that the trial court did not abuse its discretion in admitting the recording of the 911 call because the excited utterance exception to the hearsay rule was properly applied. Even if there had been error, however, it was harmless. Accordingly, we affirm Mr. Roop’s judgment and sentence. ■ '
Affirmed.
Notes
. The redactions are not pertinent to this appeal.
, We do not further address whether this particular statement was not hearsay within the stated definition and its 'exceptions in section 90,801 because this issue was not raised and because, assuming that it was hearsay, it was still admissible under the excited utterance exception of section 90.803.
. We pause to express concern about the procedure the trial court followed in admitting the recording. The proper procedure to resolve an excited utterance question is to conduct a hearing outside the presence of the jury, take whatever evidence is necessary, and make findings concerning the elements of the exception. Tucker,
. Mr. Roop's statement in his brief that' the 911 call is "completely hearsay” that is not subject to "an excited utterance (or some other hearsay exception),” is insufficient to present for review the argument the dissent raises. See Caldwell v. Fla. Pep’t of Elder Affairs,
. The dissent emphasizes defense counsel’s characterization of testimony Mr. Yeater purportedly gave in his deposition that he called 911 after “he thought about it a little more” and decided to "put [the events] on the record” because "something else might happen.” . We think that emphasis misplaced. First, as described ,in. the text, that is not how Mr. Yeater testified at trial about his decision to call 911. Second, Mr. Roop never provided the trial judge with the deposition, and the deposition is not a part of our appellate record. And finally, although defense counsel’s description of Mr. Yeater's deposition testimony is more indicative of conscious deliberation than Mr. Yeater's testimony at trial, it is not inconsistent when taken together with the other facts of record, for the trial court to have concluded that Mr, Yeater called 911 out of fear that Mr. Roop might do something else rather than because he had sufficient time to contrive or misrepresent.
. It is important to note that no one believed that this was a case of mistaken identity. As defense counsel put it in closing argument, the question was which side was lying. The jury understood well that, before the accident, Mr. Yeater knew who Mr. Roop was and did not like him much. Thus, although the dissent relies heavily on the State’s emphasis on the 911 call in closing, the fact remains that Mr. Yeater’s motive to lie was laid bare for the jury to see.
Dissenting Opinion
Dissenting.
In his brief on appeal, Devin Roop argues that the trial court erred in admitting Frank Yeater’s 911 call because it was “completely hearsay” that did not fall within the excited utterance- “or some other hearsay exception” and that the error was not harmless beyond a reasonable doubt. Roop’s argument is not eloquent; nor is it particularly thorough. But he makes it.
Moreover, in the trial court, he twice objected that the call was inadmissible hearsay intended to improperly bolster Yeater’s testimony. And once he made a proper objection, the burden shifted to the State, as the proponent of the evidence, to establish its admissibility. See, e.g., Yisrael v. State,
Background'
Yeater has known Roop and Roop’s stepbrother for more thah a decade, and they all lived in the same neighborhood. Yeater and Roop went to school together and used to be friends.
On New Year’s Eve 2013, an incident occurred between Yeater and Roop’s stepbrother in Roop’s presence. The authorities were called, but Yeater was not charged with any wrongdoing.
At- around noon five days later, Yeater was driving along a quiet stretch of road in Lake Wales on his way home from a flea market when he noticed a car quickly gaining on him. The car pulled alongside Yeater’s truck. At that point, Yeater subsequently maintained, Roop leaned out of the car’s half-open, rear • passenger’s window and threw an object at Yeater’s truck. According to Yeater, Roop knew that Yeater owned that truck because he had seen Yeater driving it on previous occasions. The object struck the driver’s sidе door of the truck near the handle, and the car sped away.
At first, Yeater continued on, but then he decided to turn around and try to retrieve what had been thrown at his truck. He returned to the area where the incident had occurred and called 911. Approximately. two minutes had passed between the incident and the call. Yeater told the 911 operator that Roop had thrown an object at his truck. Yeater then stayed on the phone with the operator and contemporaneously narrated his search for the object, which eventually led to his discovery of a metal pipe, A sheriffs deputy was dispatched to the scene and took photograph's of the damage to Yeater’s truck, The deputy also recovered the metal pipe from Yeater’s truck bed. No fingerprints could be recovered from the pipe. No physical evidence tied Roop to the offense.
The State moved in limine to admit at trial a redacted versioii of the 911 call, arguing that, although hearsay, Yeater’s statement that Roop had thrown the object was admissible as a spontaneous statement and an excited utterance and Yeater’s narration of his search for, and eventual discovery of, the metal pipe also was admissible ^s a spontaneous statement. The State proffered that Yeater would testify that, a couple of minutes after the pipe had been thrown at his truck, he had pulled over to the -side of the road, had called 911, and had identified Roop as the person who had thrown the pipe. The State did not proffer further but argued that the mere fact that Yeater ’had used a calm tone of voice on the 911 recording did not mean that he had not been “still excited or stressed out” from the event.
Roop objected to the admission of the statement as either an excited utterance dr a spontaneous statement and argued that the State was merely attempting to bolster Yeater’s testimony. Roop proffered Yeater’s prior deposition testimony that, right after the event, Yeater had
dr[iven] down the road a ways because he was just gonna forget about it,, but then thought about it a little more and thought well, then maybe I just should turn back and call the police because something further might happen and I want to put it on the record.
After reviewing the State’s motion and “the affidavit in the file” (presumably the complaint affidavit) and listening to parties’ arguments and the audio recording of the entire 911 call, the trial court granted the State’s motion to play a redacted recording for the jury. As the majority observes, the court made no findings of fact and did not identify the hearsay exception on which it based its admissibility determination.
At trial, Yeater testified to the facts of the offense, as. set forth above. When asked whether he had pulled over to the side of the road after the car had sped off, Yeater responded,- “At first I continued to keep on going, and then I decided to turn around and—to go grab—see whatever it was, and then go pick it up,” Yeater testified that, when he had called 911, he “[had been] scared at that point” and “[had been] frightened” because “I didn’t know what— I don’t know what [Roop’s] intentions were to do.”
Over Roop’s renewed hearsay objection, the State introduced the redacted audio recording of the 911 call into evidence and played the following for the jury:
911 OPERATOR: What’s going on State Road 60? Hello?
MR. YEATER: I was headed—I was heading down the road and Devin Roop was in a—-thе passenger in the back of a black car and he—he took a piece of, like, metal rebar and he threw it at the side of my truck.
911 OPERATOR: Are you outside walking around?
MR. YEATER: Yes.
911 OPERATOR: Okay.
MR. YEATER: I’m—I’m looking'for the piece of rebar he threw at my truck.
We were both heading south and he passed me up in the passing lane, and that’s, when he throwed the piece- of rebar at my truck.
There’s a nice little dent and scratch in my door.
I just found it. It’s a metal pipe. '
911 OPERATOR: It’s a pipe?
MR. YEATÉR: Yeah. It’s like a metal pipe. I’m not going to touch it. I’ve got a piece of paper here. That way you can get fingerprints off of it.
On cross-examination, Yeater acknowledged that, despite having been frightened after Roop had thrown the object, he had initially intended to continue driving but then had decided “[s]econds later” to turn around. On redirect, Yeater clarified that he “was just going to let it go” at first but then had decided to call the police “[because after initially thinking of who it was, I knew this wasn’t going to be a—it wasn’t going to stop with Devin Roop.”
After the State rested, Roop’s stepfather, Russell Brown Sr., testified that Roop had been at Brown’s residence in another town on the day of the incident. Brown testified that he remembered that day because it had been his wife’s birthday celebration. On cross-examination, Brown acknowledged that he had not told authorities that Roop had been with him that day until after defense counsel had contacted him toward the end of 2014. On redirect, however, he testified that he had not realized that the incident had occurred on the same day as the birthday celebration until after he had spoken to the defense investigator.
In closing, the State argued that the evidence established that Roop had thrown the pipe at Yeater in revenge for the New Year’s Eve incident. The State argued that Yeater was credible because, among other things, Yeater had “immediately” identified Roop as the perpetrator. Before again playing the redacted 911 call for the jury, the State directed, “I want you to pay attention and listen to how [Yeater] immediately identifies Mr. Roop as the person who threw that piece of metal pipe ... at his vehicle.” After playing it, the State emphasized that “there was absolutely no hesitation in Mr. Yeater’s voice, because he knew exactly who threw this piece of metal pipe .... There was no hesitation as he knew who caused the damage to his vehicle .... ”
In rebuttаl closing argument, the State again emphasized the redacted 911 call in arguing that Yeater had not contrived this situation or fabricated his story:
Does that sound like a person who is calling 911 in a stressful situation and reporting an incident to law enforcement exactly how it occurred, right after it occurred, and is discussing with law enforcement the actions he’s taking to search for a weapon that was hurled at his vehicle? That 911 recording corroborates exactly what the victim told you.
Analysis
A prior consistent statement is “generally inadmissible hearsay and cannot be used solely to corroborate or bolster a witness’s testimony.”
The majority holds that the trial court properly admitted Yeater’s 911 call under the “excited utterance” exception. To qualify as an excited utterance, “the statement must be made: (1). ‘regarding an event startling enough to cause nervous excitement’; (2) ‘before there was time to contrive or misrepresent’; and (3) ‘while the person was under the stress or excitement caused by the event.’ ” Hayward v. State,
In my view, the record establishes that Yeater not only had sufficient time for reflective thought but actually engaged in-such thought. Contrary to the majority’s assertion, that I would find error on this basis does not mean that I shoulder Roop’s burden either in the trial court or on appeal to make a proper argument; it means that .1 decline to shoulder the State’s burden in the trial court to lay a sufficient predicate upon Roop’s objection to the statement’s admission as an excited utterance or a spontaneous statement. See Yisrael,
While the majority. merely “expresses some concern” that the trial court failed to explicitly find this factual circumstance, I would hold that reversal is warranted because it would have been impossible for the trial court to find this factual circumstance on this record, which the State bore the sole burden to establish. At the hearing on the motion in limine, 'the State did not contest or object to Roop’s proffer of Yeater’s prior deposition testimony that Yeater had
dr[iven] down the road a ways because he was just gonna forget about it, but then thought about it a little more and thought well, then maybe I just should turn back and call the police because something further might happen and I want to put it on the record.
Moreover, as noted above, before the State introduced the 911, tape at trial, Yeater had testified, “At first I continued to keep on going, and then I decided to turn around and—to go grab—see whatever it was, and then go pick it up.” (Emphasis added.)
The majority insists that this testimony can be construed to mean that Yeater was “acting on impulse and not with the benefit of time sufficient to overcome his instincts and fabricate a story.” Yet nothing about Yeater’s testimony suggests that he was merely acting on impulse. Yeater “thought about it” enough to decide that he should “put it on thé record” because it supposedly involved Rbop and “something further might happen.” He “decided” to go back to look for what had been thrown at his truck. This is evidence of a conscious, deliberate process.
Having concluded that the admission of the identification was error, the question becomes whether the error was harmless beyond a reasonable doubt. See Geissler v. State,
[I]f Mr. Yeater’s trial testimony that Mr. Roop was his assailant was suspect because of a motive to lie, his statement to 911 was- .equally suspect for the same reason. It is very hard to see how a jury would consider the trial testimony’ of a witness with a motive to lie more credible simply because the same witness said the same thing at an earlier time when he had the same motive to lie.... Thus, the bolstering effect such a prior consistent statement on the facts of this case, if any, would have been minimal.
During closing argument, however, the State replayed Yeater’s 911 call and, among other things, repeatedly emphasized Yeater’s “immediate” identification of Roop as the attacker and argued that its very immediacy rendered it more worthy of belief. In short, the State relied on the statement itself to explicitly undermine the finding concerning the statement that the majority insists the jury naturally would have made. The risk of harm, therefore, is not diminished in this case but actually heightened. Moreover, although certainly “shifting,” Brown’s alibi testimony was not so lacking in credibility as to be inherently incredible.
Consequently, I cannot agree that there is no reasonable possibility that the admission of Yeater’s identification of Roop during the 911 call contributed to the verdict, see Thomas v. State,
. The State argued:
A statement that described an event or condition as it’s occurring or immediately thereafter is sufficient for that exception even if the person making the statement doesn’t appear to be in an excited state which in the tape recording the. state seeks to introduce as the 911 call progresses, you know, five minutes, six minutes, obviously the state would submit that the excited condition or the speaker is still excited or stressed out from, the condition, but he is using a calm tone, of voice.
So essentially I just provided this case to go to the point that’ even though [Yeаter] doesn’t sound excited or stressed out his statement should still be admissible.
. Pursuant to section 90.801(2)(b), Florida Statutes (2014), such a statement may constitute admissible nonhearsay when the declar-ant testifies at trial and the statement is offered to rebut a charge of improper influence, motive, or recent fabrication of the declarant, but the prior consistent statement "must have been made ‘prior to the existence of a fact said to indicate bias, interest, corruption, or other motive to falsify.' " Ortuno v. State,
. The cases upon which the majority relies either failed to mention what transpired between the event and statement or had evidence showing declarant did not engage in reflective thought, See Williams,
. The State elicited Yeater’s testimony that he had ultimately decided to call police ‘‘[b]e-cause after initially thinking of who it was, I knew ... it wasn't going to stop with Devin Roop” after.it had already played the 911 recording for the jury, and so this evidence was riot before the trial court when it overruled Roop’s renewed objection. Nonetheless, this evidence merely reinforces my determination that Yeater had ample opportunity for reflective thought bеfore calling 911.
. Because I am obligated to affirm on any basis that finds support in the record, see, e.g., Robertson v. State,