Van Zant v. StateVan Zant v. State
Phillip VAN ZANT, Appellant,
v.
STATE of Florida, Appellee.
District Court of Appeal of Florida, First District.
*503 M. Howard Williams and Timothy D. Harley and L.S. Selvey, II of Williams, Gibson & Harley, Tallahassee, for appellant.
Jim Smith, Atty. Gen., Wallace E. Allbritton, Asst. Atty. Gen., for appellee.
MILLS, Acting Chief Judge.
On 24 June 1976, Ruthie Taylor wаs killed in her home. A jury convicted Van Zant, her on-again-off-again boyfriend, of first degree murder and burglary of a dwelling in connection with her death.
At the trial the State, over Van Zant's objection, introduced two exhibits into evidence. The exhibits were a probable cause affidavit and a sworn complaint executed by Taylor on 6 May 1976.
In the probаble cause affidavit, Taylor alleges that on 4 May 1976, Van Zant used a key to force his way into her home, argued with hеr, threw her on the bed, pointed a shotgun at her and said he was going to kill her. Taylor states she then convinced Van Zаnt to put the gun down and leave. In the same affidavit, Taylor claimed that Van Zant returned to her home on 6 May, threаtened her, and then tried to take his own life by slashing his wrists with a knife.
In the complaint, Taylor charges Van Zant with assaulting her with a dеadly weapon on 4 May.
Van Zant contends that his objections to the admission of the documents should have beеn sustained because (1) the documents contain inadmissible hearsay; (2) the State failed to disclose the documеnts to the defense until thirty minutes before they were introduced; (3) the documents were not proper rebuttal evidence.
The State contends that the documents were properly admitted into evidence because (1) they сome within the business record exception to the hearsay rule and were admitted to show Van Zant's and Taylor's stаte of mind; (2) the trial judge determined after adequate inquiry that the State did not deliberately withhold the documents from the dеfense; (3) the documents properly rebutted Van Zant's testimony, or the inference suggested by it, that the relationship between Van Zant and Taylor was harmonious and that Taylor was not afraid of Van Zant.
Section 92.36, Florida Statutes (1977), is the Unifоrm Business Records as Evidence Act. Section 92.36(2) reads:
"(2) A record of an act, condition or event, including a record kept by means of electronic data processing, shall, in so far as relevant, be competent еvidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was mаde in the regular course of business, at or near time of the act, condition or event, and if, in the opinion of thе court, the sources of information, method and time of preparation were such as to justify its admission."
The Statе argues that every element of the above statute has been met by Exhibits 9 and 10, and therefore the exhibits were properly admitted into evidence. We do not agree.
Exhibits 9 and 10 might qualify under the business record exception to the hearsay rule to the extent that each is an out of court statement of the person who prepared thе record in the regular course of business. However, the source of the information contained in the documеnts was Taylor, not the person who prepared the record. Therefore, not only were the exhibits themselvеs hearsay, they contained hearsay.
When a business record contains a hearsay statement, the admissibility of thе record depends on whether the hearsay statement in the record would itself be admissible under some excеption to the hearsay rule. In other words, if the person who prepared the record could not testify in cоurt concerning the recorded information, the information does not become admissible as evidence merely because it has been recorded in the regular course of business.
In McGowan v. City of Los Angeles,
*504 "The statute does not change the rules of competency or relevancy with respect to recorded facts. It does not make that proof which is not proof. It merely provides a method of proof of an admissible `act, condition or event'. It does not make the record admissible when oral testimony of the same facts would be inadmissible."
The Court in Penn v. Hartman,
Numerous cases have held various types of law enforcement reports inadmissible as business records on the ground that the recorded statement was not based on the entrant's own observations or on information supplied by one who had a business duty tо transmit such information. Fairmont v. Sjostrom,
The question before us then is whether there is some exception to the hearsay rule which wоuld permit the statements of Taylor to be admitted into evidence had they not been recorded. In other words, could Charles Barfield, who prepared the exhibits, testify about what Taylor told him. We think not.
The States suggests that Taylor's statеment is admissible under the "state of mind" exception to the hearsay rule, contending that the statement indicated Van Zant's state of mind as well as Taylor's. The state of mind exception to the hearsay rule relates to a statement showing the declarant's state of mind, not someone else's. The statement is admissible to prove the declarant's state of mind at the time of the statement when that is at issue, or may be offered to prove that the plan or intention statеd by the declarant was subsequently acted upon. McCormick on Evidence, 2nd Ed., §§ 294, 295 (1972). See Webb v. State,
We hold, therefore, that it was error to admit Exhibits 9 and 10 into evidence.
Reversed and remanded for a new trial.
ERVIN, J., and MASON, ERNEST E., Associate Judge, concur.