Card v. State, 61715

Decision Date07 June 1984
Docket NumberNo. 61715,61715
PartiesJames Armando CARD, Sr., a/k/a James T. Conte, a/k/a Mike Johnson, Appellant, v. STATE of Florida, Appellee.
CourtFlorida Supreme Court

Steven L. Bolotin, Asst. Public Defender, Second Judicial Circuit, Tallahassee, for appellant.

Jim Smith, Atty. Gen., and Richard A. Patterson, Asst. Atty. Gen., Tallahassee, for appellee.

ADKINS, Justice.

This case is before us on direct appeal from a conviction of first-degree murder, robbery and kidnapping and the sentence of death imposed on the appellant, James Card. The sentence by the trial judge followed a jury recommendation of death. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const.

We affirm both the conviction and sentence for the reasons expressed below.

On the afternoon of June 3, 1981, the Panama City Western Union office was robbed of approximately $1,100. Blood was found in the office and the clerk, Janis Franklin, was missing. The following day, Mrs. Franklin's body was discovered beside a dirt road in a secluded area approximately eight miles from the Western Union office. Her blouse was torn, her fingers severely cut to the point of being almost severed and her throat had been cut.

As early as 6:30 on the morning of June 3, 1981, the appellant telephoned an acquaintance, Vicky Elrod, in Pensacola, Florida, and told her that he might be coming to see her to repay the $50 or $60 he owed her. At approximately 9:30 that night Vicky Elrod met with the appellant. He took out a stack of twenty and one-hundred dollar bills and she asked if he had robbed a 7-Eleven store. He told her that he had robbed a Western Union station and killed the lady who worked there. He described scuffling with the victim, tearing her blouse and cutting her with his knife. He said he then took her in his car to a wooded area and cut her throat saying, "Die, die, die." Several days after their meeting, Vicky Elrod went to the police with this information. The appellant was then arrested.

CONVICTION

The appellant contends that he should receive a new trial because the trial court erred in excluding certain proffered testimony, thereby depriving him of his fundamental right, guaranteed by the sixth and fourteenth amendments to the United States Constitution and by article I, section 16 of the Florida Constitution, to present witnesses in his own behalf.

The proffer demonstrated that Camille Cardwell would have testified that two or three weeks before the robbery she overheard four individuals, one of whom was her boyfriend, John Green, discussing a robbery they were going to commit. Neither Camille Cardwell nor any of the four individuals she overheard were connected with the appellant, James Card. The following is the testimony proffered by the defense:

COURT: All right, gentlemen, the jury's out. Mr. Green [defense counsel].

CAMILLE CARDWELL, having been duly sworn, testified as follows:

DIRECT EXAMINATION BY MR. GREEN:

Q. Would you state your name and address, please ma'am?

A. Camille Josephine Cardwell, PO Box 147, Lowell, Florida.

Q. Miss Cardwell, did you have occasion in the first part of June to speak to some law enforcement officers concerning the Western Union store robbery?

A. Yes, sir, I did.

Q. And to whom did you speak?

A. I believe the first name was Frank.

Q. And do you have any information regarding the Western Union store robbery?

A. Yes, sir.

Q. Will you tell the Court what information you do have?

HARRISON [prosecutor]: This is what I object to, because the only information she has she obtained through hearsay.

GREEN: Your Honor, this is a proffer, and I can tie it all in through the proffer, I believe.

COURT: No sense in getting any exercise. The jury's not in here. Let's hear what the girl has to say. We'll then determine whether the jury hears it. All right, Camille, tell us what you know about the robbery.

A. I flew in from Kansas the first part of May to be with my boyfriend at the time, and him and a couple of his friends were--had come in from somewhere, and I was sitting around, and they were talking about pulling off a robbery, and the only information that I really got as to what it might be was they they had said that they were going to rob a place where they would--people sent in money orders and stuff like that.

Q. Did they tell you they were going to rob the Western Union store?

A. Not in exact words. What they had said was that--Doc had some money coming in that his mother was wiring him.

COURT: Doc, Doc?

A. My boyfriend.

Q. What's his real name?

A. John Green.

COURT: John Green?

A. Yes, sir.

COURT: Okay, go ahead.

A. And he had said that he had been down there earlier and that they had looked the place over and that it would be a perfect place.

Q. Did they speak--did they have--you heard this conversation before June 3rd when the Western Union was robbed, did you not?

A. Yes, sir.

Q. How long before it?

A. I'm really not for sure. I flew back to Kansas, it was either the 18th or 19th of May, so it was before that.

Q. So, was it about two or three weeks before June 3rd?

A. Yes, sir.

Q. Did they mention a time when they thought they might do the robbery?

A. They said they would like to get it before the banks closed and she made her deposits.

Q. Did they mention a specific time?

A. I believe they said anywhere from two to 3:30, somewhere along through there.

Q. Did they mention anything about using any type of weapons?

A. Doc had--John had mentioned using a knife--some of the knives that he had, scuba diving equipment, and he also had a shotgun.

Q. Did they tell you what type--or the knife, did you see any of their knives?

A. I've seen his knives before, yes, sir. I've done a lot of scuba diving with him.

Q. Who else was present when they were talking about that?

A. There was Tom Wilmot, Tom's wife, and--

Q. What's her name?

A. Breezy, and also another guy I don't know. I've never seen him before.

Q. Did they mention what type of--can you tell me what kind of automobile they had?

A. John owned a, I believe it was a '63 Chevrolet, and Tom owned a van.

Q. Did they say what they were going to do to the lady at the Western Union?

A. Well, from what I could pick up, they weren't going to hurt her.

Q. And you reported this to the police about June 5th.

A. Somewhere along in there.

GREEN: That's basically the proffer, Your Honor.

COURT: This is hearsay.

The appellant submits that the testimony was relevant because it "tends to prove that" someone other than the appellant may have committed the crime and because "[I]t casts doubt on the police officers' testimony that they followed up all leads and ruled out all possible suspects but [the appellant]." He further argues that the testimony is not hearsay, but in the alternative, if it is, it should have been admitted under the hearsay exception which allows declarations against penal interest to be introduced in evidence. See § 90.804(2)(c), Fla.Stat. (1981).

Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. § 90.801(1)(c), Fla.Stat. (1981). The appellant contends that Camille Cardwell's testimony is not hearsay because the conversation she heard is not being offered to prove the truth of the matter asserted. It is, he contends, a verbal act, indicative of a specific criminal intent and it is highly relevant in that it tends to prove that Green and Wilmont, rather than the appellant, may have committed the crime.

We find this argument insupportable. The declarants are not defendants or victims nor are they connected with this case other than through the proffered testimony at issue. The only way any statements made by them could be relevant here would be if they were offered for the truth of the matter asserted. Only if the testimony were offered to prove that the declarants were actually planning a robbery of a Western Union office would it be relevant. The criminal intentions or states of mind alone of these declarants are irrelevant to this case. The statements were obviously offered as proof of the matter asserted and are, therefore, hearsay.

The appellant also contends that the testimony was admissible to impeach the credibility of the police investigations. We are unable to find merit in that contention. The investigators have not denied receiving the information from Camille Cardwell. The appellant has offered no plausible demonstration of a failure to investigate the crime.

In the alternative, the appellant argues that if the proffered testimony is hearsay, it should have been admitted as a declaration against penal interest. Section 90.804(2)(c), Florida Statutes (1981), requires that in order to utilize this exception to the hearsay rule, the appellant must demonstrate that the declarant is unavailable to testify as a witness. He has not done so in this case but contends that the testimony was admissible in spite of the unavailability requirement. He bases this on the due process principles set forth in Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973).

In Chambers, the Court held that "[U]nder the facts and circumstances of this case the rulings of the trial court deprived Chambers of a fair trial." 410 U.S. at 303, 93 S.Ct. at 1050. In that case, the defendant was tried in Mississippi for the murder of a police officer. Another individual made three verbal confessions to this crime and one written confession which he later repudiated. The prosecution did not call this declarant as a witness so the defense did. At that time, under the "voucher" rule in Mississippi, one could not impeach one's own witness. Therefore, the defense was not allowed to have the verbal confessions admitted into evidence for that purpose. In addition, the hearsay rule prevented the...

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