Banks v. State

• Decision Date: 13 July 2001
• Docket Number: No. SC00-1161.,SC00-1161.
• Citation: 790 So.2d 1094
• Parties: Anthony BANKS, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida Supreme Court

790 So.2d 1094

Anthony BANKS, Petitioner, v. STATE of Florida, Respondent.

No. SC00-1161.

Supreme Court of Florida.

July 13, 2001.

Carey Haughwout, Public Defender, and Marcy K. Allen, Assistant Public Defender, Fifteenth Judicial Circuit, West Palm Beach, Florida, for Petitioner.

Robert A. Butterworth, Attorney General, Celia Terenzio, Bureau Chief, West Palm Beach, and August A. Bonavita, Assistant Attorney General, West Palm Beach, Florida, for Respondent.

PER CURIAM.

We have for review Banks v. State, 755 So.2d 142 (Fla. 4th DCA 2000), which expressly and directly conflicts with Consalvo v. State, 697 So.2d 805 (Fla.1996), Breedlove v. State, 413 So.2d 1 (Fla.1982), and Stevens v. State, 642 So.2d 828 (Fla. 2d DCA 1994). We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. For the reasons set forth below, we quash the district court's decision and hold that Banks is entitled to a new trial because of the erroneous admission and use of hearsay evidence against him.

FACTS

Anthony Banks was charged with delivery of cocaine in violation of sections 893.03(2)(a)4 and 893.13(1)(a)1, Florida Statutes (1997), and resisting an officer without violence in violation of section 843.02, Florida Statutes (1997). The charges resulted from the sale of a piece of crack cocaine to an undercover police officer, Detective Marsha Roaden, by Jeffrey Goodman, a passenger in Banks' car. Following a jury trial, Banks was found guilty of delivery of cocaine as charged.¹

On appeal, the Fourth District affirmed Banks' conviction for delivery of cocaine. See Banks v. State, 755 So.2d 142 (Fla. 4th DCA 2000). In so doing, the court rejected Banks' contention that the trial court erred in admitting Detective Roaden's testimony concerning out-of-court statements made by Goodman implicating Banks' direct participation in the drug transaction. The district court summarized Detective Roaden's testimony as follows:

Detective Roaden testified that she was working undercover and standing at a pay phone at a gas station when a car approached. Banks was the driver and Jeffrey Goodman was the passenger. Roaden was under surveillance by two other detectives located in a parked car. Goodman shouted for Roaden to come over to the car; Roaden complied and stood at the passenger window.

Goodman asked Roaden why she was waiting, and Roaden replied that she was waiting for a friend with some money. Goodman asked her what she needed. Before answering, Roaden asked Goodman if Banks "was straight up." Roaden explained to the jury that this is street parlance for someone who is "with the game plan or part of the business, or not the cops, wouldn't be susceptible to snitch out on you...." Goodman replied that Banks "was cool, he was okay, that he was with him." Shortly thereafter, Roaden stated that she was looking to purchase a fifty-cent piece, street parlance for fifty dollars worth of crack cocaine. Roaden stated that at that time, she was leaning into the car through the front passenger window, and Banks was looking at her. Goodman told Roaden there was no problem and asked when her friend would arrive with the money.

Roaden went to make a telephone call. When she returned to the car, Goodman pointed out a police surveillance vehicle. Roaden told them that if they were uncomfortable, they could go somewhere else to do the deal. Roaden said that her friend would bring the money and that if it was okay with them (Banks and Goodman), she would meet them in an alleyway. Goodman said, "Okay, no problem, and that he would be back and meet me there." Banks then drove the car away.

Roaden went to the alleyway, and Banks drove up ten or fifteen minutes later with Goodman, again, in the passenger seat. They pulled up to Roaden, who stood at the passenger side of the car. Roaden testified that

Mr. Goodman said that he knew that I was straight up, that I was okay, and that him and Mr. Banks had had a discussion while they were gone about the undercover vehicle being across the street at the Amoco and that if they saw that vehicle again, then they would know that I was either the cops or a snitch or trying to set them up

. . .

Goodman asked Roaden if she had the money; she answered yes and asked him if he had obtained the cocaine. Goodman replied affirmatively, then showed her the cocaine rock. Roaden handed Goodman fifty dollars. Roaden also asked the two men if she could get another piece the same size in about an hour, and Goodman replied "no problem." The conversation and transaction occurred while Banks silently listened and observed. Goodman did not testify.

During closing, the state argued:

A car drives up to her driven by Mr. Banks. He's present when ... Mr. Goodman ... starts talking about what is Roaden there for, and Roaden says to Goodman is he okay. Goodman says, yeah, he's cool, he's straight up. Do you know what that means?

Id. at 142-43 (first emphasis added). The jury convicted Banks and he appealed to the Fourth District claiming error in the admission of Goodman's statements directly implicating him in the crime.

In rejecting Banks' claim of error, the court concluded that Goodman's statements during the transaction, including his comments to the effect that Banks was "cool" and "straight up" (and the elaboration of the meaning of those terms), and that he and Banks were concerned about whether Roaden was a snitch, were not out of court statements offered to prove the truth of the matter asserted, but rather were "verbal acts" and, hence, admissible as non-hearsay. Although the court recognized that Goodman's statement to the effect that Banks was part of the deal may be viewed as offered for the truth of the matter asserted, particularly in light of the State's closing argument, the court noted that a statement's inadmissibility for one purpose does not preclude its admissibility for another. See id. at 144 (citing Breedlove v. State, 413 So.2d 1 (Fla.1982)). The court also commented that "the state's creative use of the admissible testimony in its argument does not impact upon the issue of admissibility." Id. Banks subsequently sought discretionary review in this Court.

ANALYSIS

Banks argues that the district court erred in concluding that Goodman's statements during the transaction to the effect that Banks was "cool" and "straight up" along with the police officer's explanation of what that meant, and that he and Banks were concerned about whether Roaden was a snitch did not constitute inadmissible hearsay. Banks contends that this testimony constituted inadmissible hearsay and was openly used by the State solely to establish the truth of the matters asserted in the statements, i.e., Banks' participation in the illegal drug transaction.

Hearsay is defined as a statement, other than one made by the declarant while testifying at trial or hearing, offered to prove the truth of the matter asserted. See § 90.801(1)(c), Fla. Stat. (1997). Hearsay is generally inadmissible for three reasons: (1) the declarant does not testify under oath; (2) the trier of fact cannot observe the declarant's demeanor; and (3) the declarant is not subject to cross-examination. See Breedlove, 413 So.2d at 6 (citing State v. Freber, 366 So.2d 426, 427 (Fla.1978)). However, merely because a statement is not admissible for one purpose does not mean that it is inadmissible for another. See id. Indeed, given the two-part definition of hearsay, "[t]he hearsay objection is unavailing when the inquiry is not directed to the truth of the words spoken, but, rather, to whether they were in fact spoken." Id.

One category of extrajudicial statements excluded from the hearsay rule is referred to as "verbal act" evidence. "Verbal act" evidence has been defined as:

A verbal act is an utterance of an operative fact that gives rise to legal consequences. Verbal acts, also known as statements of legal consequence, are not hearsay, because the statement is admitted merely to show that it was actually made, not to prove the truth of what was asserted in it.

Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence § 801.11[3] (Joseph McLaughlin, ed. Matthew Bender 2d ed.2000); see also Charles W. Ehrhardt, Florida Evidence § 801.6 (2000 ed.). For utterances to be admissible as verbal acts, (1) the conduct to be characterized by the words must be independently material to the issue; (2) the conduct must be equivocal; (3) the words must aid in giving legal significance to the conduct; and (4) the words must accompany the conduct. See 6 Wigmore, Evidence § 1772 (Chadbourn rev. ed.1976).

For example, in Stevens v. State, 642 So.2d 828 (Fla. 2d DCA 1994), the defendant challenged the admissibility of an undercover police officer's testimony concerning a codefendant's (Hill) statements made during a drug transaction to the officer and the defendant. The officer testified that Hill approached him and asked what he was looking for. The officer responded that he was looking for a dime, i.e., $10 worth of cocaine. Following a discussion on the type and price, the officer testified that Hill walked toward the defendant and yelled, "I need a dime." The officer then stated that he observed the defendant reach into his pocket, grab several baggies, give one of the baggies to Hill, and put the rest back in his pocket. On appeal, the district court concluded that the officer's testimony as to Hill's statement was properly admissible under the verbal act doctrine since it served to prove the nature of the subsequent act by Hill rather than the truth of the statement. See id. at 829. The court stated that Hill's yelling out, "I need a dime," was not offered for the truth asserted, but to show that the defendant was a participant when he acknowledged Hill's statement by acting on it. See id. In other words, this statement was offered not so much for its truth or falsity, as it was to explain the defendant's reaction to it, i.e., the defendant's promptly acting to provide...