Hinck v. State
| Decision Date | 05 December 2018 |
| Docket Number | No. 4D17-2198,4D17-2198 |
| Citation | 260 So.3d 325 |
| Parties | Brandon HINCK, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Carey Haughwout, Public Defender, and Claire V. Madill, 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.
The defendant appeals from his conviction for attempted second-degree murder, following an altercation in which the defendant stabbed the alleged victim multiple times. The defendant primarily argues that the trial court erred in sustaining the state's hearsay objection to the testimony of a witness who heard the defendant's alleged excited utterance less than a minute after the altercation, which testimony corroborated the defendant's recitation of the alleged excited utterance and supported his self-defense claim. We agree with the defendant's argument and reverse for a new trial.
The alleged victim testified as follows. Using a social media website, he and the defendant agreed to meet for a sexual encounter. The alleged victim drove to pick up the defendant at a gas station. From there, they drove to a restaurant. During the drive and at the restaurant, the alleged victim and the defendant discussed their sexual interests. The defendant explained that, in the past, he had only female sexual partners, but he wanted to explore his attraction to men.
The alleged victim and the defendant ultimately went to the alleged victim's third floor hotel room for their sexual encounter. According to the alleged victim, shortly after they arrived in the hotel room, the defendant, without provocation, took out a knife, and slashed the victim's throat. As the alleged victim tried to escape through the hotel room door, the defendant continued to stab the alleged victim in the torso and in the back of the head. The alleged victim managed to knock the knife out of the defendant's hand and then open the hotel room door. As the alleged victim struggled to leave the room, the defendant ran past the alleged victim and fled down the hallway to the elevator.
The defendant chose to testify in his case-in-chief. According to the defendant, soon after going into the hotel room, he changed his mind about the sexual encounter and tried to leave. However, the alleged victim blocked the defendant, began groping the defendant, pushed the defendant down onto the bed, and got on top of the defendant's legs. The defendant began screaming. The alleged victim then said "he had turned many guys before but [the defendant] was feistiest." The defendant, believing that the alleged victim was going to rape him, removed a knife from his front pocket, flicked it open, and slashed the victim's throat. The defendant raced to the hotel room door, but the alleged victim got to the door first and held it shut, preventing the defendant from leaving. The defendant reacted by wildly slashing at the victim. The defendant then dropped the knife and ran out of the room. The defendant ran to the elevator and took "less than a minute" to get from the third floor to the lobby, where he found a hotel employee. The defendant testified that while still in shock and terrified, he told the hotel employee: "[T]here is a guy ... he tried to molest me, I stabbed him, please call [t]he police and ambulance." The defendant stayed until the police arrived. The defendant suffered no injuries.
Next, the defendant sought to call the hotel employee as a witness. Defense counsel alerted the court that an evidentiary issue existed which the court may wish to consider outside the jury's presence. According to defense counsel, the hotel employee would testify that she saw the defendant come down to the lobby in a very excited state and immediately said, "I've just been attacked, call the police." The state responded that it "would be objecting in the sense that it is a self-serving statement made by the defendant." The defendant replied, "it comes under the hearsay exception of excited utterance."
Defense counsel then conducted the following proffer with the hotel employee:
Following the proffer, the state argued that the hotel employee had no knowledge of the defendant's ordinary manner of speaking. The state acknowledged that the defendant made the statement to the hotel employee close in time to the altercation.
However, the state argued that the statement was a self-serving statement and not an excited utterance.
Defense counsel reiterated the argument that the statement was an excited utterance, because the defendant made the statement less than a minute after the altercation, and both the defendant and the hotel employee testified "he was frightened, he was terrified by what he saw."
The trial court sustained the state's objection. The trial court reasoned:
Defense counsel stated that because of the trial court's ruling, the defendant would not be calling the hotel employee as a witness. Instead, the defendant rested his case.
The jury found the defendant guilty of attempted second-degree murder as charged in the information.
This appeal followed. The defendant argues the trial court erred in sustaining the state's objection to the hotel employee's proffered recitation of the defendant's alleged excited utterance, which recitation corroborated the defendant's testimony and supported his self-defense claim.
Our standard of review is abuse of discretion, limited by the rules of evidence. Dunbar v. State , 230 So.3d 8, 11 (Fla. 4th DCA 2017).
Section 90.801(1)(c), Florida Statutes (2017), defines "hearsay" as "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."
Section 90.802, Florida Statutes (2017), provides that hearsay is inadmissible unless an exception exists under section 90.803 or section 90.804, Florida Statutes (2017).
Section 90.803(2), Florida Statutes (2017), defines the "excited utterance" exception to the hearsay rule as: "A statement or excited utterance relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition."
To determine whether a statement qualifies as an "excited utterance" under section 90.803(2), the Florida Supreme Court has set forth a three-prong test:
[T]he statement must be made: (1) regarding an event startling enough to cause nervous excitement; (2) before there was time to contrive or misrepresent; and (3) while the person was under the stress or excitement caused by the event.
Hayward v. State , 24 So.3d 17, 29 (Fla. 2009) (citations and internal quotation marks omitted).
Elaborating upon the second prong, we have held:
There is no bright line standard by which to measure the length of a permissible time gap between a [startling event] and a [declarant's] statement for purposes of analyzing the admissibility of the statement as an excited utterance. Instead, where the time interval between the event and the statement is long enough to permit reflective thought, the statement will be excluded in the absence of some proof that the declarant did not in fact engage in a reflective thought process.
Rivera v. State , 718 So.2d 856, 858 (Fla. 4th DCA 1998) (citations and internal quotation marks omitted).
To continue reading
Request your trial
-
Defendant's statements
...saw. Defendant’s statements qualified under the excited utterance exception to hearsay, and error to exclude them. Hinck v. State, 260 So. 3d 325 (Fla. 4th DCA 2018) After his arrest, defendant was placed in a holding cell with a police informant. The informant wore a wire, and law enforcem......