Conley v. State

• Decision Date: 02 January 1992
• Docket Number: No. 90-1745,90-1745
• Citation: 592 So.2d 723
• Parties: 17 Fla. L. Weekly D190 William Thomas CONLEY, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 723

592 So.2d 723

17 Fla. L. Weekly D190

William Thomas CONLEY, Appellant, v. STATE of Florida, Appellee.

No. 90-1745.

District Court of Appeal of Florida,

First District.

Jan. 2, 1992.

Barbara M. Linthicum, Public Defender, and Glen P. Gifford, Asst. Public Defender, for appellant.

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

PER CURIAM.

Appellant, William Thomas Conley, appeals his conviction for armed burglary, armed robbery, and three counts of armed M.M. testified that she was introduced to appellant in July or August 1989 by a friend who invited M.M. to accompany her, Conley, and another man on a trip between Jacksonville and Daytona Beach. M.M. testified that during the trip, Conley kissed her several times but that they went no further sexually. After a night at a hotel, the group returned to Jacksonville. M.M. testified that she saw Conley several times in passing after that, but spent no time with him.

sexual battery, and his sentence as a habitual felony offender. He contends the trial court erred (1) in admitting hearsay testimony of a police dispatch and of the alleged victim's statements to a police officer, (2) in admitting hearsay statements made by the alleged victim to a physician who examined her, (3) in permitting an officer to testify that appellant had given police a false name after his arrest, (4) in permitting cross-examination of a defense witness about a threat he purportedly made to the victim, and (5) in permitting prosecutorial misconduct during cross-examination of the defendant and during closing argument. Conley also claims the trial court committed sentencing errors because (1) section 775.084, Florida Statutes (1989), the habitual-felony offender statute, is unconstitutional, (2) section 775.084(4) prohibits habitual-offender sentencing for both his life felonies and his first-degree felonies punishable by life, (3) the trial judge prepared an order imposing sentence prior to the sentencing hearing, (4) the court imposed three consecutive minimum-mandatory sentences upon appellant as a habitual violent felon for offenses that occurred during a single episode, and (5) the trial court included on the guidelines scoresheet a triple assessment of victim injury points for injury to a single victim during a single criminal episode. We affirm all of Conley's convictions, affirm some sentences and reverse others, for the reasons stated below.

M.M. testified that on November 13, 1989, she was at 8224 Eaton Avenue in Jacksonville, working as a nurse's assistant taking care of "Grumpy," the elderly mother of a neighbor, Al Douglas. Her two-year-old son, Zachary, was with her. She said that at 2 p.m. that day, Conley knocked the door down and entered the house carrying a rifle. While pointing the gun at M.M., Conley directed her to get Grumpy out of bed and put her in a wheelchair in the living room. He then forced M.M. to go into the bedroom and have repeated anal, vaginal, and oral sex with him while he kept the gun nearby. When Zachary cried from the living room, Conley permitted her to give him a bottle, but when the child started to cry again, Conley hit him. Conley then forced M.M. to continue having sex. She said that Conley fired his gun into the ceiling "to show me he meant business."

Eventually, Conley had M.M. put her clothes back on, and he took three rings from her fingers and the checkbook from her purse. He had her accompany him to a nearby trailer, where he directed her to knock on the door and ask for Steve. A child answered the door and ran outside. Conley ordered M.M. into the trailer where he looked through several drawers. He then told her to leave, but as she went out the door, he asked her what she was doing. She said she ran down the street with Conley in pursuit until she turned into a yard with people in it.

Police arrived in response to a call at about 5:15 p.m. on November 13, 1989, reporting an armed man pursuing a woman down the street. M.M. told officer Isaac Brown her version of events. Officers apprehended Conley under a bed in a house nearby with a gun at his side. The owner of the house where Conley had been staying, testified that Conley ran inside just before police arrived and said he was in trouble. An evidence technician took a checkbook from the bedroom where Conley was found. M.M. identified the checkbook as hers and the gun as the one Conley had that day. She also identified Conley, who was sitting alone in the back of a police car, as her assailant.

After arresting Conley, police found money and three rings in his possession. M.M. identified the rings as hers at trial. A photograph depicting a damaged front door to the Douglas home was admitted in Dr. Darryl Turner examined M.M. within hours of the alleged rape. He found a bruise on her neck but no evidence of trauma to the rectum or vagina, but testified that this was not unusual depending on the preexisting state of the patient's vaginal and anal areas. The exam revealed a small amount of yellowish fluid in her anus, but no evidence of sperm in either orifice.

evidence, without objection. Police did not find evidence that a bullet had been fired at the ceiling in the bedroom where M.M. said the rape occurred. Officer W.R. Baer testified that Conley gave a false name during an interrogation after arrest, then gave his real name. Baer also said that Conley denied committing any of the crimes against M.M., and stated that he was hunting with his friend Wayne Westberry until 6 p.m. that day.

Several defense witnesses testified that they had seen Conley and M.M. together as a couple as recently as two weeks before the alleged crimes. Conley testified that the two of them had had a sexual relationship until late September. He testified that on November 13, he returned from hunting at around 2 p.m., then went to Al Douglas' house, where he had once lived, to visit Al and check on Grumpy. He said M.M. invited him in, but got angry when he started kidding her about seeing two other men. Conley said that she cursed him, so he slapped her face and left. He denied raping her or having sex with her that day. Conley testified that he hid from the police because he was wanted for violation of probation, and he said the gun was already under the bed where he hid.

The jury found Conley guilty of armed burglary (Count I), three counts of armed sexual battery (Counts II, III, and IV), and armed robbery (Count V). The trial court found Conley to be a habitual violent felony offender and sentenced him to life imprisonment with a fifteen-year mandatory-minimum term on each count. The sentences for Counts I and V are consecutive to those for Counts II, III, and IV, which are concurrent with one another.

TRIAL ISSUE 1

The first witness the state called was M.M., who testified that Conley had sexually assaulted her, robbed her, and confined her against her will. She testified that when she was finally able to break away and run, Conley chased her down the street with his rifle as she shouted, "Call the police." The state's second witness, Officer Isaac Brown, testified that he received a report that someone was being chased down a street by a person with a gun, so he went to investigate. The trial court properly overruled Conley's hearsay objection. The officer's statement was not offered to prove the truth of the matter asserted, but to establish why the officer went to the scene to investigate. Johnson v. State, 456 So.2d 529, 530 (Fla. 4th DCA 1984) (content of dispatch to which investigating officer responded is not hearsay, but is instead a common-sense way to explain why officers went to the scene), review denied, 464 So.2d 555 (Fla.1985).

We note that the prosecutor did refer to this same testimony during closing argument to corroborate M.M.'s version of events, and in this context the evidence was inadmissible hearsay. Because defendant's counsel failed to object, however, this error was not preserved for appeal. Jones v. State, 577 So.2d 606, 608 (Fla. 4th DCA 1991) (contents of BOLO was inadmissible hearsay because it was improperly used by prosecutor to establish truth of the matter asserted).

The trial court also properly overruled Conley's hearsay objection to Officer Brown's testimony regarding what M.M. told him when he arrived at the scene. Brown stated that M.M. was hysterical and crying, and said that she had just been raped by a man called "Mad Dog," gave Brown a description and told him where the man had run, and recounted details of the rape. After the police canvassed the area thirty-five minutes to an hour after he had first questioned her, Officer Brown again questioned M.M. Although she was still "screaming and crying," she was able to recount the incident in detail to Officer The court admitted the testimony under the "fresh complaint" exception to the hearsay rule, which has been recognized in rape cases to rebut an inference of consent which may be drawn from a victim's previous silence about a sexual assault. Custer v. State, 159 Fla. 574, 34 So.2d 100, 106 (1947); McDonald v. State, 578 So.2d 371, 373-74 (Fla. 1st DCA 1991); Monarca v. State, 412 So.2d 443, 445 (Fla. 5th DCA 1982); Lyles v. State, 412 So.2d 458, 459 (Fla.2d DCA 1982). While we acknowledge the applicability of this common-law doctrine, see McDonald, we note that M.M.'s statements did not follow a period of silence which could have raised an inference of consent.

Brown. The defense objected to this entire testimony as hearsay.

Therefore, we hold that M.M.'s responses to the officer's questions were admissible as excited utterances under Section 90.803(2), Florida Statutes (1989). Garcia v. State, 492 So.2d 360, 365 (Fla.) (officer who responded to crime was properly permitted to testify regarding what victim told him when he asked what happened, as a contemporaneous utterance admissible under the res gestae rule), cert. denied, 479 U.S. 1022, ...