Cotton v. State, 4D97-3560.

• Decision Date: 09 June 2000
• Docket Number: No. 4D97-3560.,4D97-3560.
• Citation: 763 So.2d 437
• Parties: Kenneth COTTON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

763 So.2d 437

Kenneth COTTON, Appellant, v. STATE of Florida, Appellee.

No. 4D97-3560.

District Court of Appeal of Florida, Fourth District.

June 9, 2000.

Rehearing Denied August 18, 2000.

Richard L. Jorandby, Public Defender, and Joseph R. Chloupek, Assistant Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and David M. Schultz, Assistant Attorney General, West Palm Beach, for appellee.

EN BANC

TAYLOR, J.

Kenneth Cotton appeals his conviction of trafficking in cocaine of 400 grams or more. We find no abuse of discretion in the trial court's decision to proceed with appellant's trial following his rejection of the state's plea offer to lesser charges. We write only to address appellant's point on appeal that the trial court erred in precluding his cross-examination of a state witness concerning exculpatory statements appellant made at the time of his arrest. These statements pertained to his lack of knowledge that cocaine was inside a package in his possession.

Before trial, the state moved in limine to prohibit appellant from cross-examining one of the arresting officers about a statement appellant made following his arrest on a cocaine possession charge. Appellant told the officer that the package of cocaine found in his possession during a traffic stop search was handed to him by the driver immediately before the officers approached the vehicle and that he did not know that the package contained cocaine. During the hearing on the motion in limine, the state assured the court that it did not intend to introduce any evidence of the appellant's statements to the officer in its case-in-chief. Nonetheless, appellant objected to the motion in limine, arguing that his statement to the police was admissible as evidence of his "state of mind" concerning a lack of knowledge that the package he possessed contained cocaine. The trial court ruled that appellant's statement was inadmissible hearsay and granted the state's motion in limine to prevent appellant from cross-examining the officer about the statement.

Thereafter, appellant testified in his own behalf. He testified that he was a passenger in a vehicle stopped for speeding on the Florida Turnpike. He said he was asleep just before the stop, but was awakened by the driver, who handed him a package and told him to hide it in his pants. Appellant denied knowing that the package contained cocaine. He said that he first learned of its contents when he was searched and the package was opened by the police. After his arrest for possession of cocaine, appellant told one of the officers that he did not know he was concealing cocaine on his person because the driver had given him the package without divulging its contents and instructed him to hide it.

Appellant argues on appeal that the trial court erred in not allowing him to bring out this favorable testimony through cross-examination of the officer. Further, he claims that the error was prejudicial because he was forced to give up his right not to testify and expose his prior criminal record to the jury. In his argument, the appellant relies on several hearsay exceptions. However, we conclude that none of the hearsay arguments raised, each of which we address, require reversal.

When a defendant seeks to introduce his own out-of-court exculpatory statement for the truth of the matter stated, it is inadmissible hearsay. Ehrhardt, Florida Evidence § 801.3 (1998); Lott v. State, 695 So.2d 1239 (Fla.1997); Logan v. State, 511 So.2d 442 (Fla. 5th DCA 1987); Fagan v. State, 425 So.2d 214 (Fla. 4th DCA 1983). However, if a defendant's out-of-court statement is not offered by the defendant to prove the truth of its content, it is not hearsay and should be admitted, provided the purpose for which the statement is being offered is relevant to a material issue in the case. See Ehrhardt, Florida Evidence § 801.3. Also, an out-of-court statement made by the defendant is admissible if it comes within an exception to the hearsay rule. A defendant's offer of his own out-of-court statement, however, does not fall under the admission exception to the hearsay rule, section 90.803(18), Florida Statutes (1997). This is so because a defendant seeking to introduce his own statement is not offering it "against a party" within the meaning of section 90.803(18).

A defendant's out-of-court statement is also allowed into evidence if it is being admitted under the rule of completeness. This rule, sometimes referred to as the doctrine of curative admissibility, entitles the defendant to bring out exculpatory portions of his statement when a state witness has testified about incriminating remarks contemporaneously made by the defendant. See Christopher v. State, 583 So.2d 642 (Fla.1991); Guerrero v. State, 532 So.2d 75 (Fla. 3d DCA 1988).

Appellant cites numerous cases in arguing that his out-of-court statement to the police should have been admitted as non-hearsay "state-of-mind" evidence. However, none of these cases apply here. In King v. State, 684 So.2d 1388 (Fla. 1st DCA 1996), the challenged out-of-court statement was not made by the defendant but by a third party to the defendant and was offered to prove the defendant's state-of-mind, i.e., that the defendant had no reason to know that the check he passed was a forgery. Similarly, in Duncan v. State, 616 So.2d 140 (Fla. 1st DCA 1993), the improperly excluded out-of-court statement was not the defendant's, but the out-of-court statement of another who sold stolen tire rims to the defendant. The seller told the defendant that the tire rims had been salvaged from his wrecked pickup truck. The appellate court concluded that the seller's statement was not hearsay because it was offered to demonstrate its effect on the defendant in tending to dispel any suspicion about the unusually low price of the tire rims.

In Hansman v. State, 679 So.2d 1216 (Fla. 4th DCA 1996), a burglary and theft prosecution, we found reversible error in the trial court's exclusion of testimony of the defendant's girlfriend that she heard the owner of the baseball card collection give the defendant permission to take the collection so that he could recover insurance benefits. This evidence, we concluded, went to "the heart of the defense." Id. at 1217.

In Kent v. State, 704 So.2d 121 (Fla. 1st DCA 1997), also cited by appellant, testimony concerning conversations in which undercover officers sought to purchase cocaine from the defendant and the defendant refused to sell cocaine to them was ruled admissible as either nonhearsay, since it was not offered to prove the truth of the matter asserted, or as a state-of-mind exception to the hearsay rule under section 90.803(3). The statements tended to show either inducement by the police or the defendant's lack of predisposition and were, therefore, relevant to his defense of entrapment.

Appellant also cites Guerrero v. State, 532 So.2d 75 (Fla. 3d DCA 1988), wherein the third district reversed the defendant's grand theft conviction because the trial court prevented the defendant from cross-examining the arresting officer about explanations the defendant gave for possession of recently stolen property at the time of his arrest. However, in finding exclusion of the defendant's exculpatory statement improper, the court applied the rule of completeness, noting the unfairness of allowing the arresting officer to testify to some parts of his conversation with the defendant but to omit the exculpatory portions.

Other cases cited by appellant, Alexander v. State, 627 So.2d 35 (Fla. 1st DCA 1993) and Stiles v. State, 672 So.2d 850 (Fla. 4th DCA 1996), pertain to the hearsay exceptions of section 90.803(1)(spontaneous statement) and (2)(excited utterance), Florida Statutes (1999), as justification for admitting a defendant's exculpatory statements. Appellant has failed to show that his statement falls within one of these exceptions to the hearsay rule. The record below does not establish a time frame between concealment and discovery of the cocaine and appellant's out-of-court statement to the police describing these events such that his statement can be deemed admissible as a spontaneous statement. At most, we have only the prosecutor's estimate during argument on the motion in limine that appellant's statement was made "within the hour" of his arrest. Significantly, his statement was made after the appellant had been given his Miranda warnings. See Logan v. State 511 So.2d 442 (Fla. 5th DCA 1987)(exculpatory statements made by defendant to arresting officer four hours after burglary were hearsay and self-serving), (citing Fagan v. State, 425 So.2d 214 (Fla. 4th DCA 1983)); Rodriguez v. State, 591 So.2d 308 (Fla. 3d DCA 1991)(exculpatory hearsay statement at time of arrest approximately two and one-half months after the crime properly excluded); Watkins v. State, 342 So.2d 1057 (Fla. 1st DCA 1977)(trial court did not err in refusing to permit defendant to testify as to statement he made to police officers at police station after crime because such statements were not part of res gestae and were self-serving).

The record is similarly devoid of any evidence that would qualify appellant's statement as an excited utterance under 90.803(2). Whether the necessary state of mind is present for a court to admit a statement as an "excited utterance" exception is a preliminary fact for the trial court's determination. Ehrhardt, Florida Evidence § 803.2 (1998 Ed.); Perry v. State, 675 So.2d 976 (Fla. 4th DCA 1996). Our standard of review is abuse of discretion. Alexander v. State, 627 So.2d 35 (Fla. 1st DCA 1993). In this case, there was not a sufficient factual predicate laid upon which we can conclude that the trial court abused its discretion in denying admission of appellant's statement under 90.803(2). See Ehrhardt, Florida Evidence § 803.2 (1998)(reviewing factors that the trial judge can consider in determining...