Jenkins v. State

• Decision Date: 16 August 1989
• Docket Number: No. BM-33,BM-33
• Citation: 547 So.2d 1017,14 Fla. L. Weekly 1943
• Parties: 14 Fla. L. Weekly 1943 James JENKINS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1017

547 So.2d 1017

14 Fla. L. Weekly 1943

James JENKINS, Appellant, v. STATE of Florida, Appellee.

No. BM-33.

District Court of Appeal of Florida First District.

Aug. 16, 1989.

Michael E. Allen, Public Defender, and Paula S. Saunders, Asst. Public Defender, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen., and Royall P. Terry, Jr., Asst. Atty. Gen., Tallahassee, for appellee.

BARFIELD, Judge.

James Jenkins appeals from his conviction for trespass in an occupied structure, raising four issues for review. We hold that the trial court committed reversible error in allowing both the victim's mother and the investigating officer to relate, at trial, prior statements of the victim which were consistent with the victim's own trial testimony and served only to impermissibly bolster her credibility. We affirm the remaining issues and reverse and remand for new trial.

The victim lived alone with her five-year-old son in a trailer home in Lawty, Florida. According to her trial testimony, on May 22, 1985, at approximately 3:30 a.m., an intruder broke into her home, entered her bedroom, laid down beside her bed and began to fondle her breasts and thighs. She turned on the light at the foot of the bed and recognized appellant, whom she had known previously, having attended school with him. Appellant was wearing only his underwear and holding a hunting knife. She asked him, "James, what are you doing here," and he replied, "Don't tell anybody. This is between you and me." She told him to leave, and he left immediately. The next morning she went to her mother's house and told her what had occurred. She and her mother went to appellant's house and spoke with appellant's father about the incident.

Over appellant's hearsay objection, ¹ the victim's mother testified that her daughter had told her that someone broke into her trailer, entered her bedroom and laid down beside her bed; that her son woke up and said he was scared; and, that she turned on the light and recognized appellant. The mother could not remember the exact date that her daughter came to her, stating that it was either a Friday or Saturday; nor could she recall the exact date that her daughter reported the incident to the police, stating that it was sometime that same week.

On May 25, 1985, the victim reported the incident to Bradford County Deputy Sheriff David Aderholt. Over appellant's hearsay objection, Aderholt testified as to the victim's description of the incident:

Q: What did she report to you had occurred?

A: She reported to me that on May 22nd at about three-thirty in the morning that she and her five-year-old son had been asleep in her bedroom and that she had heard a noise in her mobile home and that it had woke her up and that she was frightened, that she had heard the front door open and close several times. She stated that her son awoke and said he was scared and that she was scared and laid there and that someone came close to her bed and that she began to feel--she could feel them rubbing her on the inside on her thigh and also on her chest near her breasts, at which point she said that she turned on a light at the foot of her bed and that she saw the person, that she told the person to leave and that this person stated to them--told her not to tell anybody as this was between her and the person and that the person did leave at that time.

For the defense, appellant's father testified that appellant was living with him at the time of the incident. The victim and her mother came to see appellant's father and told him that appellant was found in the victim's trailer, wearing only his underwear and holding a hunting knife. The father stated that neither his son nor he owned a hunting knife, but that his son did own a pocket knife, which folded-out to 6-7 inches. Appellant's mother testified that on the night of the incident, she last saw appellant in the den watching television. She did not hear him leave the house during the night. Appellant testified that he was watching television and had fallen asleep at 11:30 p.m.. He denied that he had been in the victim's trailer.

Appellant pled not guilty to charges of armed burglary and battery. As to the armed burglary count, the jury found appellant guilty of the lesser included offense of trespass in an occupied structure. As to the battery count, the jury found him not guilty. His motion for new trial was denied. The court withheld imposition of sentence, placed appellant on probation for one year and ordered him to serve six months in the county jail or, alternatively, to be placed in residential treatment center for one year.

On appeal, appellant contends that the trial court erred in allowing the victim's mother and the investigating officer to testify as to statements the victim made to them regarding what had occurred on the night of the incident. Appellant argues that the statements were consistent with the victim's trial testimony and served only to bolster her credibility, in violation of section 90.801(2)(b), Florida Statutes. The state responds that the statements were admissible to show the victim's state of mind at the time she related the incident to her mother; ² and, that because approximately three to four days elapsed before reporting the incident to the police, there was, perhaps, a basis for an implied charge of recent fabrication. Alternatively, the state contends that, even if the trial court erred, the error was harmless.

In general, prior consistent statements of a witness are inadmissible to corroborate or bolster the witness' trial testimony. Van Gallon v. State, 50 So.2d 882 (Fla.1951); Jackson v. State, 498 So.2d 906 (Fla.1986); McElveen v. State, 415 So.2d 746 (Fla. 1st DCA 1982). However, under § 90.801(2)(b), prior consistent statements are not hearsay and can be used as substantive evidence, if the declarant testifies at trial, is subject to cross-examination regarding the prior statement, and the statement is offered to rebut an express or implied charge of improper influence, motive, or recent fabrication. A prior consistent statement admitted to rebut a charge of bias, corruption or improper motive must have been made "prior to the existence of a fact said to indicate bias, interest, corruption or other motive to falsify." McElveen, 415 So.2d at 748 (quoting, Kellam v. Thomas, 287 So.2d 733, 734 (Fla. 4th DCA 1974)). There must be an initial attempt on cross-examination to demonstrate the improper influence, motive or recent fabrication and, once such an attempt has successfully occurred, then prior consistent statements are admissible on the redirect examination or through subsequent witnesses to show the consistency of the witness' trial testimony. Wise v. State, 546 So.2d 1068 (Fla. 2d DCA 1989); Bianchi v. State, 528 So.2d 1309 (Fla. 2d DCA 1988). Admissibility of the prior statement is addressed to the sound discretion of the trial court and will not be disturbed on appeal, absent an abuse of that discretion. Kelley v. State, 486 So.2d 578, 583 (Fla.1986), cert. den., Kelley v. Florida, 479 U.S. 871, 107 S.Ct. 244, 93 L.Ed.2d 169 (1986).

On cross-examination, appellant's attorney attempted to impeach the victim's testimony through use of her deposition and generally attacked her credibility. For example, she testified at trial that the burglary occurred on May 22. However, in her deposition she stated that it happened sometime between May 12 and May 23. On cross-examination, she admitted that it most likely occurred on May 15. Additionally, at trial she testified that her son was awake and saw appellant when she turned on the light. However, in her deposition, she stated that her son was asleep at the time of appellant's entry into the bedroom. On cross-examination, she stated that it was not until after she gave the deposition that her son told her that he had seen appellant in the bedroom. Finally, appellant's attorney cross-examined the victim on reasons why she did not immediately go to any of the neighbors for help or to use a telephone (she did not have a phone in the trailer). The victim replied that she was scared and, instead, went to her mother's house the next day.

A reasonable interpretation of the victim's cross-examination does not indicate, either expressly or implicitly, a charge of recent fabrication, improper influence or motive to falsify. Her testimony did not indicate that she was changing her story at trial; nor did the impeachment attempts establish any fact which indicated that her trial testimony was improperly influenced or that she had a motive to falsify. A witness' credibility is always an issue at trial, and a general attack on that credibility does not satisfy the hearsay exception rule.

We find that the trial court abused its discretion in allowing the mother and the investigating officer to testify with respect to the victim's description of the incident. See Brown v. State, 344 So.2d 641 (Fla. 2d DCA 1977) (improper testimony of both investigating officer and victim's mother); Quiles v. State, 523 So.2d 1261 (Fla. 2d DCA 1988) (inadmissible hearsay testimony of officer who recited victim's version of events made in course of police investigation); Perez v. State, 371 So.2d 714 (Fla. 2d DCA 1979) (officer's testimony that witness told him that defendant shot victim was consistent with witness' trial testimony and inadmissible); Lamb v. State, 357 So.2d 437 (Fla. 2d DCA 1978) (investigating officer's testimony as to victim's prior statement was consistent with victim's trial testimony and inadmissible). The prior statements of the victim were consistent with her trial testimony and served only to impermissibly bolster her credibility.

We reject the state's argument that the trial court's error was harmless. It is clear that the victim's testimony was critical in establishing appellant's presence in her home and, therefore, her credibility was crucial. Bianchi; Preston v. State, 470 So.2d...