Jano v. State

• Decision Date: 24 June 1987
• Docket Number: No. 84-831,84-831
• Citation: 510 So.2d 615,12 Fla. L. Weekly 1554
• Parties: 12 Fla. L. Weekly 1554 Bret Edmund JANO, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 615

510 So.2d 615

12 Fla. L. Weekly 1554

Bret Edmund JANO, Appellant, v. STATE of Florida, Appellee.

No. 84-831.

District Court of Appeal of Florida Fourth District.

June 24, 1987.

Rehearing Denied July 22, 1987.

Richard L. Jorandby, Public Defender, and Robert E. Adler, Asst. Public Defender, West Palm Beach, for appellant.

Robert Butterworth, Atty. Gen., Tallahassee, and Carolyn V. McCann, Asst. Atty. Gen., West Palm Beach, for appellee.

STONE, Judge.

The defendant was convicted of the sexual battery of his 2 1/2 year old daughter, and sentenced to life in prison. The incriminating evidence consisted substantially of hearsay testimony admitted under either the spontaneous statement or excited utterance exceptions to the hearsay rule.

Section 90.803(1) and (2), Florida Statutes (1979), provides:

(1) Spontaneous statement.--A spontaneous statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter, except when such statement is made under circumstances that indicate its lack of trustworthiness.

(2) Excited utterance.--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.

These exceptions encompass evidence frequently considered under what was referred to as the res gestae exception was referred to as prior to the adoption of the Florida Evidence Code. State v. Johnson, 382 So.2d 765 (Fla. 2d DCA 1980); 1976 Law Revision Council Note to subsections (1) and (2) of § 90.803, 6C Fla.Stat.Ann. 267 (1979).

Upon review of the evidence, we conclude that the state has failed to meet its burden of demonstrating that the requirements of the evidence code have been met. The admission of the hearsay statements was therefore error.

The defendant lived alone. The child was cared for by a sitter, Helen Nirenberg, a primary witness for the state. Ms. Nirenberg took care of the child at her house on a fairly regular basis for a period of a month and a half. She testified that on the first day the child was dropped off, April 14th, she observed redness and swelling in the child's vaginal area while giving her a bath. The witness testified that on a couple of occasions the child told her that her daddy put things in her. She also said that the child would cry out during the night, "daddy get off me." The testimony of the babysitter is not clear with respect to the times that the hearsay statements were made. This may have been caused, in part, by interruption to her testimony.

Rachel Brown, a friend of Helen Nirenberg, testified that on the second day the child was with the babysitter, April 15th, the child pointed to her vagina, saying that is where her daddy hurts her. ¹

Another witness, a consultant with the child protection team, testified that he saw the child on May 21st, five days after the child had last been with her father. He showed the child anatomically correct dolls used with children having difficulty verbalizing. He testified that she threw the male doll to the floor and kicked her foot near it, saying "go away daddy."

Hearsay objections to all of the above statements of the child were overruled. A witness from a sexual assault treatment center said that when the child saw the babysitter in the hall of the courthouse she cried, "no go down there, daddy's coming back." On cross-examination, appellant's mother, a defense witness, confirmed that on occasions "too numerous to tell", the child pointed to "her privates" and said that her daddy had hurt her.

The child did not appear. There is no indication in the record why she did not testify, nor whether she would have been competent to do so. A doctor testified that an examination revealed a hymen opening that was large for the child's age, but not torn, and a bruise in the area near the anus which was apparently caused by repeated pressure consistent with sexual abuse. The doctor also noted redness which was not as significant as the bruise.

The appellant contends that the trial court erred in admitting the hearsay statements, maintaining that the state failed to lay a sufficient predicate that the statements were made immediately following the episodes of abuse, or that the child was in an excited frame of mind.

In Carver v. State, 344 So.2d 1328 (Fla. 1st DCA), cert. denied, 352 So.2d 174 (Fla.1977), the court presented the standard for determining whether a statement is part of the res gestae exception:

The term "res gestae" comprehends a situation which presents a startling or unusual occurrence sufficient to produce a spontaneous and instinctive reaction, during which interval certain statements are made under such circumstances as to show lack of forethought or deliberate design in the formulation of content. In determining spontaneity, the time element is weighed along with such factors as the condition of the victim at the time of the particular utterance. Absence of evidence that the victim was dazed, excited, hysterical, bruised or disheveled, at the time of the utterance, has been stressed in cases where such utterance was held not a part of the res gestae. A key element in determining whether a statement is or is not a part of the res gestae is the interval of time between the principal act or main event and when the statement is made.

Id. at 1331 (footnotes omitted). Similarly, in Appell v. State, 250 So.2d 318 (Fla. 4th DCA), cert. denied, 257 So.2d 257 (Fla.1971), this court said in determining admissibility under res gestae:

Time is quite important. Naturally the more time elapsing, the less chance of a spontaneous reflection on the occurrence. Periods of up to a day have been held not to preclude spontaniety [sic], while other cases have held several minutes to be too long.... The feeling is that the factual situation in each instance will set its own pattern of time.

Id. at 321.

The record before us does not reveal the length of time that elapsed between the criminal incidents and the hearsay statements. The witnesses did testify that the statements were spontaneous and not in response to questioning. For a hearsay exception to be permitted, the utterance must have been made immediately following the event or while the declarant was in an excited state of mind caused by the incident. See Salter v. State, 500 So.2d 184 (Fla. 1st DCA 1986); Begley v. State, 483 So.2d 70 (Fla. 4th DCA 1986); Jackson v. State, 419 So.2d 394 (Fla. 4th DCA 1982); Lyles v. State, 412 So.2d 458 (Fla. 2d DCA 1982); Carver v. State. But cf. Monarca v. State, 412 So.2d 443 (Fla. 5th DCA 1982) (while time is an important factor, spontaneity of utterance probably most controlling).

In Salter, the court held that the statements of a five year old to a child protection team counselor several hours after a sexual assault were not admissible as excited utterances. The court ruled that the state failed to demonstrate that the statements were made while the child was still in an excited state of mind, and before she had had the opportunity to reflect or deliberate.

In Begley, the defendant was charged with sexual battery upon his three year old daughter between the 7th and the 22nd day of July. The mother testified that on the evening of the 22nd, the daughter told her that she had a secret between her and her father, and that " 'her father had licked her p---y'." 483 So.2d at 72. This court held that the excited utterance argument by the state lacked merit, and that the statement constituted inadmissible hearsay:

since the state failed to lay any predicate that the victim's statement to her mother was made immediately after the event or at her first opportunity to complain and that the statement was made under the stress of excitement caused by the event. Jackson v. State, 419 So.2d 394 (Fla. 4th DCA 1982); Lyles v. State, 412 So.2d 458 (Fla. 2d DCA 1982). There is no indication in the record as to when within the two-week period the incidents occurred, nor is there any indication as to how long she had been home before she made the statement.

Id. at 72-73.

However, in Begley the court went on to find the testimony admissible on other grounds.

In Lyles, the defendant was charged with sexually abusing his four year old step-daughter late one evening. The next day, the child told an officer that her daddy had "messed her up ... in the oranges by the graveyard". Id. at 459. The court held that the statements were not within the spontaneous statement or excited utterance exceptions, and were thus not admissible. In reversing the conviction, the court said:

In order for the spontaneous statement exception to the hearsay rule to be applicable, there must be some occurrence startling enough to produce nervous excitement and render the utterance spontaneous and unreflecting. The utterance must have been made before there has been time to contrive and misrepresent, i.e., while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance, and the utterance must relate to the circumstances of the occurrence preceding it....

There was no testimony to show that Heather was dazed, excited, or hysterical, or that she was anything other than calm. The statement was not made until several hours after she had been returned to her home and was not made to her mother or grandmother, but brought out by interrogation. According to her grandfather, she was normal and playing in the yard at the time the police officer came to investigate the incident. The doctor who examined her stated that she was not visibly upset and was in fact withdrawn.

412 So.2d at 460. It should be noted, however, that in Lyles the court recognized that the statements were not spontaneous, but were in response to questioning.

The state claims that under the circumstances of this case, the statements were made sufficiently close in time to the...