Carter v. State

• Decision Date: 05 June 2013
• Docket Number: No. 4D11–2638.,4D11–2638.
• Citation: 115 So.3d 1031
• Parties: Jeffrey E. CARTER, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

115 So.3d 1031

Jeffrey E. CARTER, Appellant,

v.STATE of Florida, Appellee.

No. 4D11–2638.

District Court of Appeal of Florida,

Fourth District.

June 5, 2013.

Carey Haughwout, Public Defender, and Jeffrey L. Anderson, Assistant Public Defender, West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.

CONNER, J.

Jeffery E. Carter was charged with and convicted of two counts of aggravated battery. The State alleged he attacked two individuals using a knife. Carter appeals his conviction contending the trial court erred by (1) allowing a deputy to testify about two statements obtained from other witnesses; (2) giving the standard justifiable use of deadly force instruction at the State's request over his objection; and (3) allowing improper rebuttal testimony. We affirm the trial court on giving the justifiable use of deadly force instruction, but reverse for a new trial after concluding the admission of improper hearsay testimony by the deputy and improper rebuttal evidence was harmful.

Factual Background

Carter, the two victims (J.W. and D.B.), and the eyewitnesses were all homeless persons living in tents in the woods. Both victims and the eyewitnesses corroborated each other's testimony, describing Carter as an aggressive person. More than one testified that on the Thursday before the incident, Carter came to J.W.'s campsite after work looking for alcohol to drink. Everyone at the campsite had been drinking. When his requests for alcohol were declined and he was asked to leave, Carter refused and got into a scuffle with J.W. During the scuffle, J.W.'s earring was ripped out.

According to some of the witnesses, the next night, J.W. and D.B. were at S.W.'s campsite with S.W. and his girlfriend. The group had been drinking most of the day. Carter came to the campsite and an argument between Carter and J.W. ensued. There was another scuffle between the two during which Carter elbowed J.W. in the ribs, knocking him down. After knocking J.W. to the ground, Carter looked at D.B. and asked him if he had a problem. D.B. said he didn't have a problem; then Carter pointed at D.B. and said, “I'll be back to get you.” Carter left, and the group continued drinking. Sometime between midnight and 2:00 a.m., while the group was drinking and socializing around S.W.'s campsite, Carter walked up and punched J.W. Almost immediately after being punched, J.W. realized that Carter had a weapon in his hand. J.W. testified that just after he was punched, Carter hit D.B., the other victim, in the face. J.W. explained: “Blood spurted out, [D.B.] fell to the ground, [Carter] ran and I took my shirt off and applied it as a tourniquet to his face. Every time his heart would beat blood would pump out his face.”

D.B. testified that he saw Carter approaching with a knife and hit J.W. He then clarified that Carter “kind of bull rushed right around the side of the palm tree, hit [J.W.] in the chest, [and] slit him a little bit.” D.B. explained that without saying anything Carter immediately turned from J.W. to attack him. Carter then ran away.

Carter offered a self-defense version of the events. He explained that on the night of the attack all in the group were drinking excessively; he agreed that he got into a fight, but denied being armed with a knife. He testified that he, J.W., and S.W. (an eyewitness) made a bet on a football game on Thursday for five dollars each. Carter testified that when he went to collect his winnings, everybody started screaming and looking at him like he was crazy. He decided it was best to just leave and go back to his tent. Later that night he again tried to get the money he had won, but by this time at night J.W. was “wild.” Carter testified that J.W. was standing up and getting violent, so he became afraid and punched him with his bare hand. He acknowledged that he and J.W. had gotten in several “tussles” over the two years that they had known each other. Carter denied having a knife, but admitted that he punched J.W. in the chest. He further explained that he had noticed D.B. was in the motion of standing up to attack him, so he told D.B. to go ahead and stand up. He admitted that he punched D.B. to avoid being attacked by him, but again denied that he had a knife.

Testimony was presented that after the attack, deputies responded to the scene and took statements from the two victims and several eyewitnesses.

Improper Hearsay Evidence by a Deputy

During the testimony of one of the deputies responding to the scene, the following occurred:

[STATE:] Have you made any inquiry at this time as to who a potential suspect was?

[DEPUTY:] I asked [D.B.], you know, who did this to you, and he indicated a black—

[DEFENSE:] Objection, hearsay, Your Honor.

[STATE:] Your Honor, may we approach?

[COURT:] No, overruled. He's here.

[DEPUTY:] He indicated a black man named Jeffrey Carter.

...

[DEPUTY:] I talked to [S.W. (an eyewitness) ]. As fire and rescue was taking [D.B.] away, [S.W.] stated that—

[DEFENSE:] I'm gonna object to hearsay, Your Honor.

[COURT:] [S.W.] was here, I'll allow it.

[STATE:] You can go ahead, sir.

[DEPUTY:] [S.W.] indicated to me that Jeffrey Carter came into the camp, punched [J.W.] in the chest. He then looked at [D.B.], told him to stand up, indicated something to the effect of I'm here to kill and then slashed [D.B.] across the face and fled south into the wooded area.

(emphasis added.) Carter argues the court improperly denied his hearsay objections.

Whether an objection is erroneously overruled is reviewed by an abuse of discretion standard. Mitsubishi Motors Corp. v. Laliberte, 52 So.3d 31, 37 (Fla. 4th DCA 2010). However, the rules of evidence limit the trial court's discretion. Nardone v. State, 798 So.2d 870, 874 (Fla. 4th DCA 2001).

“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. (2010) (internal quotation marks omitted). Hearsay is inadmissible except as provided by statute. § 90.802, Fla. Stat. (2010). In determining whether a prior out-of-court statement is hearsay, it does not matter that a person has testified as a witness during the trial. Carter v. State, 951 So.2d 939, 944 (Fla. 4th DCA 2007) (“Hearsay includes an out-of-court statement of a witness who testifies at trial, as well as an out-of-court statement by someone who is not a witness on the stand testifying to the statement.”). If the State intended to use the prior statements of D.B. and S.W. to prove something other than the truth of what was asserted, the State did not make that known. The trial court's comment to the effect that the witness had testified at trial did not make the prior statements non-hearsay, and the admission of the prior statements was error.

Citing Robertson v. State, 829 So.2d 901, 906 (Fla.2002), the State asks us to affirm the admission of the prior statements as the correct result even if the trial court asserted the wrong reasons because the prior statements can be admitted as prior consistent statements.

“Section 90.801(2)(b), [Florida Statutes (2010) ] provides that a statement is not hearsay if the declarant testifies at trial and is subject to cross-examination concerning the statement, and the statement is consistent with his testimony and offered to rebut a charge of improper influence, motive, or recent fabrication.” Neal v. State, 792 So.2d 613, 614 (Fla. 4th DCA 2001) (citation omitted). However, “[t]he exception [allowing a prior consistent statement as non-hearsay] involving impeachment by bias or corruption or improper motive is only applicable where the prior consistent statement was made ‘prior to the existence of a fact said to indicate bias, interest, corruption, or other motive to falsify.’ ” Jackson v. State, 498 So.2d 906, 910 (Fla.1986) (quoting McElveen v. State, 415 So.2d 746, 748 (Fla. 1st DCA 1982)); Kellam v. Thomas, 287 So.2d 733 (Fla. 4th DCA 1974). Stated another way, a prior consistent statement is inadmissible under section 90.801(2)(b) if it is made after the witness' motive to lie arose. Id.

At trial and on appeal, Carter argued that the motive for the victims and eyewitnesses to fabricate a story against him arose prior to the incident in which the victims were injured. Carter, as he contended in opening statements, testified that the victims and eyewitnesses did not like him prior to the incident, and the victims and eyewitnesses were part of a clique within the camp. There was no evidence presented about an incident occurring between the date D.B and S.W. made statements to the deputy and their testimony at trial which would support a claim of recent fabrication. Because the alleged motive to fabricate existed prior to the statements by witnesses to the investigating officer, the prior consistent statements were inadmissible.

Having reviewed the record, we determine the erroneous admission of prior consistent statements was not harmless error. This is particularly true because the deputy stated S.W. said something to the effect that Carter appeared with an intent to kill, which none of the other witnesses testified about. Also, we have specifically warned that a police officer testifying about prior consistent statements by a witness is not only hearsay, but also improper bolstering. Barnes v. State, 576 So.2d 439 (Fla. 4th DCA 1991). As we said in Barnes, “[w]hen a police officer, who is generally regarded by the jury as disinterested and objective and therefore highly credible is the corroborating witness, the danger of improperly influencing the jury becomes particularly grave.” Id. at 440. Because the error was not harmless, reversal for a new trial is required.

Justifiable Use of Deadly Force Instruction

Carter requested a jury instruction on the justifiable use of non-deadly force, but objected...