Conley v. State

Decision Date20 May 1993
Docket NumberNo. 79278,79278
Citation620 So.2d 180
Parties18 Fla. L. Week. S298 William Thomas CONLEY, Petitioner, v. STATE of Florida, Respondent.
CourtFlorida Supreme Court

Nancy A. Daniels, Public Defender and Glen P. Gifford, Asst. Public Defender, Tallahassee, for petitioner.

Robert A. Butterworth, Atty. Gen. and Edward C. Hill, Jr., Asst. Atty. Gen., Tallahassee, for respondent.

BARKETT, Chief Justice.

We have for review Conley v. State, 592 So.2d 723 (Fla. 1st DCA 1992), based on direct and express conflict with various decisions of this Court and the District Courts of Appeal. 1 For the reasons stated below, we reverse the convictions, vacate the sentences, and remand for proceedings consistent with this opinion.

Evidence adduced at trial was fully detailed in the decision under review. 2 Conley was convicted of armed burglary, three counts of sexual battery with a deadly weapon, and armed robbery with a firearm. The First District Court of Appeal affirmed the convictions. 3 Because some of Conley's claims with respect to the guilt portion of the proceedings are dispositive, we address only those issues here.

The first claim of conflict concerns Conley's argument that the trial court erroneously admitted into evidence the hearsay testimony of a police dispatch report. The report originated when an unidentified person, not the alleged victim, called the police to report an incident. Officer Brown testified, over objection, that he "received the call in reference to a man chasing a female down the street." Then he added: "The man supposedly had some type of gun or rifle." The prosecutor later referred to this statement in closing argument to argue that the alleged victim's testimony, combined with the corroborating testimony of Officer Brown, proved that Conley carried a rifle during the criminal episode.

The district court affirmed, holding that the dispatcher's statement introduced through Officer Brown was admissible because it was merely offered to prove why the officer went to the scene to investigate. 592 So.2d at 727. The district court relied on Johnson v. State, 456 So.2d 529 (Fla. 4th DCA 1984), review denied, 464 So.2d 555 (Fla.1985), a broadly worded opinion that essentially established a per se rule that the contents of a police dispatch are not hearsay and are admissible through another officer's testimony because such evidence is "a common sense way to explain why the officers were at the particular place at the particular time, their purpose in being there and what they did as a result." 456 So.2d at 530.

We agree with Conley's contention that the decision below is in error and conflicts with our subsequent decision in State v. Baird, 572 So.2d 904 (Fla.1990), and with an en banc decision of the Fourth District, Harris v. State, 544 So.2d 322 (Fla. 4th DCA 1989).

In Baird, we held that the inherently prejudicial effect of admitting into evidence an out-of-court statement relating accusatory information only to establish the logical sequence of events outweighs the probative value of such evidence. Accordingly, we found inadmissible an out-of-court statement explaining the motive of an officer in investigating a defendant where it was not a material fact in issue at the time the challenged testimony was elicited. Our decision approved the rationale of Harris, where the Fourth District, sitting en banc, revisited the rule its panel had set in Johnson. Harris concluded that while police may testify that they arrived on the scene because of a statement made to them, the content of that statement is inadmissible, especially where it is accusatory. In so holding, Harris expressly receded from Freeman v. State, 494 So.2d 270 (Fla. 4th DCA 1986), which had relied on Johnson to approve the admissibility of police testimony revealing an accusatory statement that an informant had made to them.

In the trial court below, the State argued in closing that Officer Brown's testimony about the weapon helped to prove that Conley used a rifle to commit the offenses of armed burglary, armed sexual battery, and armed robbery. Regardless of the purpose for which the State claims it offered the evidence, the State used the evidence to prove the truth of the matter asserted. 4 In so doing, the statement constituted hearsay and fell within no recognized exception to the rule of exclusion. See Sec. 90.803, Fla.Stat. (1989). 5

Even if we were to conclude that the testimony was not used to prove the truth of the matter asserted, the contents of the statement were not relevant to establish a logical sequence of events, nor was the reason why officers arrived at the scene a material issue in the case. See Baird; Harris. As we said in Baird, the inherently prejudicial effect of admitting into evidence an out-of-court statement relating accusatory information to establish the logical sequence of events outweighs the probative value of such evidence. Such practice must be avoided. Baird, 572 So.2d at 908; see Sec. 90.403, Fla.Stat. (1989).

In light of the lack of corroboration as to whether Conley used a firearm, combined with evidence that contradicted the alleged victim's statements on this issue as more fully explained in this opinion below, we cannot say beyond a reasonable doubt that the jury's result would have been the same without Officer Brown's improper hearsay testimony. Thus, we find the error harmful, requiring reversal. See State v. DiGuilio, 491 So.2d 1129 (Fla.1986).

In this case the error was compounded by the erroneous admission of a hearsay statement about the rifle that the alleged victim made to the examining physician while detailing her claim of sexual battery. Dr. Turner, a resident at the University Hospital emergency room, was called by the State to testify about his examination of the alleged victim. When the State asked Dr. Turner what she had told him, Conley objected on the ground of hearsay. The trial court overruled the objection in favor of the State's argument that the evidence, although hearsay, was admissible under the medical diagnosis exception codified in section 90.803(4), Florida Statutes (1989). 6

Dr. Turner testified that he examined the woman immediately after the incident and filled out a form routinely used for this type of exam. Then he described what she told him:

The patient stated that approximately 2:00 in the morning in the home of a patient of hers she was allegedly raped, assaulted, which included penile, oral, penile/vaginal, and penile/anal intercourse. This was done, as she stated, at gunpoint.

There was also some question of violence that had occurred at that time in terms of her being struck by her assailant.

(Emphasis supplied.) He said she did not know whether the assailant had ejaculated. From this information, he decided to conduct anal, vaginal, and oral examinations and to check for evidence of sperm.

On review, the District Court found no abuse of discretion. We disagree and find that the District Court's application of section 90.803(4) conflicts with our holding in Torres-Arboledo v. State, 524 So.2d 403, 407 (Fla.), cert. denied, 488 U.S. 901, 109 S.Ct. 250, 102 L.Ed.2d 239 (1988). There an examining physician testified that the victim said "a couple of black people tried to steal his medal and shot him." We held that the portion of the statement about having been shot was admissible under section 90.803(4) because it was reasonably pertinent to the diagnosis or treatment of the victim's wounds. But, we held, the statement that black people tried to steal the victim's medallion was not admissible because it was not reasonably pertinent to medical treatment.

The same analysis applies here. The alleged victim's statement to the doctor that she had been sexually assaulted orally, vaginally, and anally were reasonably pertinent to the physician's diagnosis or treatment of the victim's wounds. However, we agree with Judge Ervin's dissent that the "assault at gunpoint" portion of the statement was inadmissible because it was not reasonably pertinent to medical treatment. See Conley, 592 So.2d at 733 (Ervin, J., dissenting). 7

The issue of whether Conley possessed and used a rifle during this alleged criminal episode was a significant and contested issue bearing on each of the crimes being tried--armed burglary, armed sexual assault, and armed robbery. The alleged victim had testified that Conley shot the rifle into the ceiling of the bedroom where she said the assault took place, yet police found no evidence that a weapon had been fired. Nor did the State produce any admissible corroborating evidence on this issue. Dr. Turner's hearsay evidence of the alleged victim's own statement, and Officer Brown's hearsay statement from an unidentified third party, were the only evidence supporting the woman's charge that Conley held or used a rifle during the episode. The State did present evidence that Conley had been hunting with a rifle earlier that day and was arrested lying under a bed with a rifle at his side. However, Conley gave what some jurors may consider a reasonable explanation for why he was later found with a rifle at his side. 8

Without the inadmissible hearsay corroboration, jurors might have weighed the alleged victim's testimony about the rifle differently. This might have not only produced reasonable doubt on the "armed" portion of all five counts, but it also might have impacted her credibility in general. Attacking her credibility was the linchpin of Conley's defense. Had jurors not accepted her testimony about the weapon, they might have given less weight to other portions of her testimony, too. 9

We hasten to note that the State is not required to corroborate a victim's testimony. However, where the key witness's credibility has been put in issue, it cannot be doubted that corroborating testimony may play a substantial role in the jury's weighing of the evidence.

Accordingly, we quash Conley,...

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