Bartholomew v. State

• Decision Date: 19 December 2012
• Docket Number: No. 4D10–4520.,4D10–4520.
• Citation: 101 So.3d 888
• Parties: Kino BARTHOLOMEW, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

101 So.3d 888

Kino BARTHOLOMEW, Appellant,

v.STATE of Florida, Appellee.

No. 4D10–4520.

District Court of Appeal of Florida, Fourth District.

Oct. 31, 2012.

Rehearing Denied Dec. 19, 2012.

Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.

POLEN, J.

Kino Bartholomew appeals his convictions and sentences for first-degree murder, two counts of attempted second-degree murder, robbery with a firearm, and attempted robbery with a firearm. We reverse because the trial court erred in admitting a taped statement of a State witness into evidence as past recollection recorded over appellant's objection that the State failed to lay the proper foundation for its admission. Although, on this record, the trial court's admission of seven autopsy photographs was not reversible error, we hold it was nevertheless an abuse of discretion, and discuss the issue so it is properly resolved on remand.

This case arose from a robbery, which resulted in the murder of Richard Entriken—the late founder/co-owner of the First Step Sober House, a drug-treatment center, in Pompano Beach. Entriken and Christopher Doherty ran First Step, and appellant was a former in-house resident. Entriken collected weekly rent from residents at the conclusion of the Friday night meetings; after collecting the rent, he would exit the facility with the money in a duffle bag. Doherty and others routinely stood guard during his exit.

On Friday, January 25, 2008, at some point after 11:30 p.m., Entriken exited First Step with the duffle bag full of rent money. Suddenly, three men appeared with guns firing. Appellant was not identified as one of these men. One of the men approached Entriken, who was still holding the duffle bag containing about $20,000, and shot him in the head. The men fled to a nearby black Honda Accord with the duffle bag and drove off. Entriken died from that single gunshot to the head.

Two of the shell casings found at the scene near Entriken's car were linked to two recent crimes involving a black Honda, which was linked to Cyrus Vance. Based on a Crimestoppers tip from appellant's former co-worker, Winston Henry, implicating appellant in the robbery, the lead detective on the case obtained cell phone records from both appellant and Vance. These phone records indicated that appellant spoke to Vance on the night of the shooting. Although Vance was not arrested in connection with this incident, appellant was arrested several months later.

At trial, the State's theory of the case was that appellant was the mastermind behind the robbery/murder. Appellant's defense was that he did not commit the offenses or aid and abet the perpetrators. Prior to calling one of the State's key witnesses, Derek Stephens, the prosecutor proffered Stephens's testimony. During the proffer, Stephens refused to take the oath and said he had a bad memory. He said he did not remember anything about the case or talking to an assisting detective, to whom he had previously made a taped statement regarding the robbery/murder.

The prosecutor suggested admitting Stephens's taped statement as recorded recollection. The defense argued that it had previously moved to exclude Stephens as a witness in the trial, which the trial court had not ruled upon. The defense noted that it had a letter from Stephens expressly repudiating the taped statement. The defense made objections that not only had the State failed to lay the proper foundation for past recollection recorded, but also that the State was calling Stephens for the primary purpose of impeaching him with his prior statement to the police. After extensive argument and further defense objections, the trial court found the statement was admissible as past recollection recorded pursuant to Polite v. State, 41 So.3d 935 (Fla. 5th DCA 2010). See also§ 90.803(5), Fla. Stat. (2010). The trial judge stated, “So, when I look at the totality of the circumstances surrounding the previous statement, I find there to be a high degree of reliability as to the accuracy of the statement.” The trial court reasoned that Stephens was essentially refusing to answer questions, and that his memory was better closer to the time of the offense, when he provided the information under oath.

The next day Stephens took an oath. He testified that he had been facing seventeen years in prison in an unrelated case so he made a taped statement for the assisting detective in exchange for help in his own case. He said he received only fifteen months in return for the statement. However, he could not remember what he said in that statement. He stated that hearing his voice on the tape would not help refresh his memory. After the trial court declared him a hostile witness, and in response to the prosecutor's specific questions regarding the statement, he deniedthat the events it described ever occurred. The prosecutor showed Stephens the repudiation letter he wrote the previous week, which Stephens acknowledged. He said he wrote it because he was changing his life for the better. The prosecutor read the letter, wherein Stephens wrote that the detectives came up with the story, and he rephrased it in the statement he gave in exchange for help in his own case. In the letter, Stephens also wrote that he did not know anything about appellant and the robbery. Upon further questioning, Stephens testified that he never spoke to appellant about the First Step incident. He was also clear that appellant never spoke to him about committing a robbery, as the two men had never liked each other and did not speak at all.

The assisting detective was recalled, and over defense hearsay objections, the trial court admitted Stephens's taped statement as “past recollection recorded.” In the taped statement, Stephens told the detectives that he ran into appellant and another guy in front of a barbershop about five or six days after the First Step fatal robbery. Appellant informed Stephens “that they had done hit a [robbery].” They had just bought some dope and were trying to distribute it. Appellant further told Stephens that they received $15,000 from the robbery. Stephens was convinced that appellant was speaking about and was involved with the fatal robbery at First Step.

We agree with appellant that the trial court reversibly erred by admitting the repudiated, taped statement of Stephens as past recollection recorded because the State failed to lay the proper foundation for its admission.

The standard of review for the admissibility of evidence is abuse of discretion, limited by the rules of evidence. Padgett v. State, 73 So.3d 902, 904 (Fla. 4th DCA 2011). Unless it qualifies as a statutory exception, hearsay evidence is inadmissible. See§ 90.802, Fla. Stat. (2010). Section 90.803(5), Florida Statutes (2010), provides an exception to the hearsay rule for past recollection recorded as follows:

A memorandum or record concerning a matter about which a witness once had knowledge, but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made by the witness when the matter was fresh in the witness's memory and to reflect that knowledge correctly. A party may read into evidence a memorandum or record when it is admitted....

Testimony concerning a recorded recollection “derives whatever force it possesses from the fact that the memorandum is the record of a past recollection, reduced to writing while there was an existing independent recollection.” Montano v. State, 846 So.2d 677, 680 (Fla. 4th DCA 2003) (quoting Volusia Cnty. Bank v. Bigelow, 45 Fla. 638, 33 So. 704, 706 (1903)). When the proper foundation is laid, a taped statement may qualify as a recorded recollection. Id. at 680–81. For it to qualify and be admitted into evidence, the past recollection recorded must be offered by the witness who either lacks a present recollection or has an imperfect present recollection and desires to use a memorandum of a past recollection. Kimbrough v. State, 846 So.2d 540, 543 (Fla. 4th DCA 2003). “The witness must be able to assert now that the record correctly represented his knowledge and recollection at the time of the making.” Id. (citing 3 Wigmore on Evidence §§ 734, 746(2) (James H. Chadbourn rev., 1970)) (emphasis in original); see also2 McCormick on Evidence § 283 (Kenneth S. Broun, 6th ed. 2009).

The requirement that the witness acknowledge the accuracy of the recorded recollection at trial is consistent with the belief that this exception is justified because the witness, who is subject to cross-examination, “incorporates into [his] testimony by reference the record of past recollection.” Montano, 846 So.2d at 681 (citing Garrett v. Morris Kirschman & Co., 336 So.2d 566, 570 n. 6 (Fla.1976)). Unlike other exceptions to the rule, which obtain their reliability from the circumstances surrounding the making of the out-of-court statement, recorded recollection obtains its reliability based on the credibility of its maker. Id. Therefore, “the law requires the maker to adopt the recorded recollection as his own.” Id. at 682.

Accordingly, we have consistently held that out-of-court statements are inadmissible as past recollection recorded unless the proponent lays the foundation for its admission with testimony at trial that the declarant's statement was recorded when the described events were fresh in his or her mind and attests to the statement's accuracy. See Hernandez v. State, 31 So.3d 873, 878–80 (Fla. 4th DCA 2010) (holding that where State witness was unable, or unwilling, to attest to the accuracy of the taped conversation, the State could not introduce it as past recollection recorded; the State called the witness for the primary purpose of impeaching her with her taped conversation); see also Kimbrough, 846 So.2d at...