Evans v. State, SC00-468.
| Citation | 838 So.2d 1090 |
| Decision Date | 14 November 2002 |
| Docket Number | No. SC00-468.,SC00-468. |
| Parties | Wydell Jody EVANS, Appellant, v. STATE of Florida, Appellee. |
| Court | United States State Supreme Court of Florida |
James B. Gibson, Public Defender, and Michael S. Becker, Assistant Public Defender, Seventh Judicial Circuit, Daytona Beach, FL, for Appellant.
Robert A. Butterworth, Attorney General, and Judy Taylor Rush, Assistant Attorney General, Daytona Beach, FL, for Appellee.
We have on appeal a judgment of conviction of first-degree murder, kidnaping, and aggravated assault. Appellant was sentenced to death for the first-degree murder conviction and received concurrent sentences of life imprisonment and 108.15 months for the kidnaping and aggravated assault convictions, respectively. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const.
I. FACTS
On October 21, 1998, two days after being released from prison, Wydell Evans shot and killed his brother's seventeen-year-old girlfriend, Angel Johnson, during an argument over her alleged unfaithfulness to Evans' brother. At the time of the shooting, Evans was in an automobile with Johnson, Erica Foster, Sammy Hogan, and Lino Odenat. At some point during the argument, Johnson laughed, to which Evans responded, Evans then pulled out a gun and shot Johnson in the chest.
After the shooting, Evans directed Hogan to drive to the home of a man called "Big Dick." As they drove, Evans passed the gun to Odenat and told him to dispose of it. When they arrived at Big Dick's house, Evans left the car and talked to Big Dick. While Evans was talking, Odenat decided to get out of the car and let the others take Johnson to the hospital. As Odenat opened the door and stepped out, Evans told him to get back into the car and Odenat obeyed. Within a few minutes, Evans returned and directed Hogan to drive into a nearby parking lot. There, Evans threatened Foster and Hogan not to tell who shot Johnson or he would kill them and their families. After threatening Foster and Hogan, Evans tried to wipe his fingerprints from inside the car and left with Odenat. Once Evans was out of the car, Foster and Hogan rushed Johnson to the hospital where she later died of her wounds.
At the hospital, Foster and Hogan were questioned by the police, at which time they first told police that a white man driving a cream-colored car shot Johnson over a drug deal. They later changed their story and reluctantly identified Evans as the shooter. The police found Evans at a motel the next morning. He was taken into custody, charged, and after a jury trial, convicted of one count of first-degree premeditated murder, one count of kidnaping, and one count of aggravated assault.
The trial judge followed the jury's recommendation of a sentence of death, finding two aggravating circumstances and several nonstatutory mitigating circumstances. The court imposed concurrent sentences of life imprisonment on the kidnaping count and 108.15 months with a three-year mandatory minimum term on the aggravated assault count. Evans raises six issues on appeal.
Evans first argues that the trial court erroneously permitted the introduction of hearsay testimony. During its case in chief, the state called two police officers who each testified that Hogan and Foster identified Evans as the person who shot Johnson. Over defense counsel's objection, the trial court allowed the testimony on the grounds that Hogan and Foster's statements constituted excited utterances.1 We agree with Evans that the statements were not admissible as excited utterances.
An excited utterance is defined as a statement "relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." § 90.803(2), Fla. Stat. (1999). To qualify for this exception, (1) the declarant must have experienced or witnessed an event startling enough to cause nervous excitement; (2) the statement must have been made while under the stress of excitement caused by the startling event; and (3) the statement must have been made before there was time to contrive or misrepresent. See Stoll v. State, 762 So.2d 870, 873 (Fla. 2000)
.
The statements at issue do not qualify under the excited utterance exception to the hearsay rule. While Hogan and Foster had experienced several events startling enough to cause nervous excitement and their statements identifying Evans may have been made while they were still under the stress of excitement caused by those events, their statements clearly were not made before they had time to contrive or misrepresent. A significant amount of time elapsed between the startling events and the statements. More importantly, both Hogan and Foster lied to the police officers who initially questioned them, telling the officers that Johnson was shot by a white man driving a cream-colored car. Only after new officers arrived and questioned Hogan and Foster separately did they identify Evans as the person who shot Johnson. Because Hogan and Foster's statements identifying Evans were made some time after the startling events and after they had contrived a false story, they cannot qualify as excited utterances and should not have been admitted under that hearsay exception.
Although the statements do not qualify under the excited utterance exception to the hearsay rule, their admission was not error because under section 90.801, Florida Statutes (1999), a statement is not hearsay "if the declarant testifies at the trial ... and is subject to cross-examination concerning the statement and the statement is ... [o]ne of identification of a person made after perceiving the person." § 90.801(2)(c), Fla. Stat. (1999). Here, both Hogan and Foster testified at trial and were subject to cross-examination concerning their identification of Evans as the shooter.
Evans next argues that the trial judge erred in denying his motion for a mistrial based on comments made by the prosecutor in her closing argument. Evans' defense and his testimony at trial centered around his assertion that the murder weapon discharged accidentally. Evans also testified that although the shooting was an accident, he did not immediately go to the police because he was scared and paranoid, but that he planned to call the police the next morning to explain what had happened. These themes were repeated in defense counsel's closing argument.
In her rebuttal argument, the prosecutor made several comments directed to Evans' defense, making the point that if the shooting was really an accident as Evans claimed, he would not have disposed of the gun and would have immediately gone to the police and explained the circumstances. The prosecutor further suggested that had Evans not disposed of the gun, it could have been tested to determine whether, in fact, it had a slight trigger pull or was prone to misfire or fire accidentally. She suggested that because Evans knew that the gun did not malfunction or fire accidentally, he disposed of it, and as a result, the State was unable to confirm these facts. Defense counsel objected to these comments2 and moved for a mistrial. The motion was denied. On appeal, Evans argues that the trial court abused its discretion in denying the motion. He contends that the prosecutor's insinuation that he disposed of the gun was not supported by the evidence and that the comments at issue improperly shifted the burden of proof to the defendant to prove his innocence. We disagree.
Normally, "the state cannot comment on a defendant's failure to produce evidence to refute an element of the crime, because doing so could erroneously lead the jury to believe that the defendant carried the burden of introducing evidence." Jackson v. State, 575 So.2d 181, 188 (Fla. 1991). However, a prosecuting attorney may comment on the jury's duty to analyze and evaluate the evidence and state his or her contention relative to what conclusions may be drawn from the evidence. See Ruiz v. State, 743 So.2d 1, 4 (Fla.1999)
. In this instance, Erica Foster, who was in the car when the shooting occurred, testified that after Evans shot Johnson, he gave the gun to Lino Odenat and told him to dispose of it. She further testified that once Evans and Odenat exited, the gun was no longer present in the car. From this evidence, the prosecutor was entitled to argue that the jury could and should conclude that Evans was responsible for disposing of the gun.
We further reject Evans' argument that the prosecutor's comments improperly shifted the burden of proof. Evans took the stand in his own defense, and by doing so, he placed his credibility at issue. Accordingly, the prosecution was entitled to highlight inconsistencies between Evans' testimony and other evidence in the case and to expose contradictions and improbabilities in Evans' version of events. The clear import of the challenged comment was to discredit Evans' testimony by pointing out that his actions in disposing of the gun were inconsistent with his claim that the shooting was an accident. This was fair comment on the evidence, and we find no error.
Evans raises as his third issue his assertion that the trial court erred in denying his motion for judgment of acquittal. As to the murder charge, Evans argues that the State did not sufficiently establish premeditation. This Court has defined premeditation as a "fully formed conscious purpose to kill" which may be "formed a moment before the act but must exist for a sufficient length of time to permit reflection as to the nature of the act to be committed and the probable result of that act." Woods v. State, 733 So.2d 980, 985 (Fla.1999). Premeditation can be inferred from the surrounding circumstances, including "the nature of the weapon used, the presence or absence of adequate provocation, previous difficulties between ...
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