Jones v. State, 89-3050

• Decision Date: 13 March 1991
• Docket Number: No. 89-3050,89-3050
• Citation: 577 So.2d 606,16 Fla. L. Weekly 688
• Parties: 16 Fla. L. Weekly 688 Thomas Michael JONES, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 606

577 So.2d 606

16 Fla. L. Weekly 688

Thomas Michael JONES, Appellant, v. STATE of Florida, Appellee.

No. 89-3050.

District Court of Appeal of Florida,

Fourth District.

March 13, 1991.

Rehearing Denied April 17, 1991.

Richard L. Jorandby, Public Defender, and Anthony Calvello, Asst. Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Don M. Rogers, Asst. Atty. Gen., West Palm Beach, for appellee.

WARNER, Judge.

The appellant challenges his conviction for sexual battery. He claims that the trial court erred in admitting hearsay testimony. We agree and reverse.

The victim of this attack testified that she met appellant inside a bar in Plantation, Florida. After dancing and talking for a while, the two went outside. Their testimony conflicts as to whose suggestion it was that they leave the bar. However, once outside, the victim testified that appellant grabbed her, tore her dress, threw her to the ground and started to rape her. Importantly, the victim stated that she was screaming and begging appellant to let her go. While appellant was attempting to penetrate the victim, the police drove up. At that point the victim broke away from the appellant, running to the police crying for help. The appellant's version differs considerably from that of the victim. He claims that the sexual encounter was entirely consensual until the police car appeared, at which time the victim ran towards the car saying something. At that point appellant ran.

Over strenuous objection by the appellant, a deputy sheriff who was in the car which encountered appellant and the victim was allowed to testify that his dispatcher had informed him of a call that "there was screaming coming from the area behind residential neighborhoods," meaning an area which encompassed the scene of this incident. The appellant objected that the testimony was hearsay. The trial court overruled the objection because, first, no specific criminal activity was included in the BOLO report; second, no one was identified in the BOLO report; and thus, three nothing in the BOLO pointed to the defendant as the perpetrator of a crime. The trial court reasoned that the statement placed the officer's presence at the scene in a logical sequence of events and was not introduced for the truth of the matter asserted.

However, in the closing argument the prosecutor unquestionably used the statement to bolster the state's case and contradict the consent defense of appellant. The prosecutor told the jury: "You have Officer Garrison who was the first officer on the scene. He told you he was called to that area because there was a female screaming. And what had [the victim] said? She said that when this was going on she was screaming. It substantiates what she said."

In Harris v. State, 544 So.2d 322, 324 (Fla. 4th DCA 1989), this court held:

[W]e emphasize that it is not a sufficient justification for the introduction of incriminating hearsay that the statement explains or justifies an officer's presence at a particular location or some action taken as a result of the hearsay statement. There is a fine line that must be drawn between a statement merely justifying or explaining such presence or activity and one that includes incriminating (and usually unessential) details. Our reasoning is further supported by the following explanation from McCormick on Evidence (3d ed. 1984):

However, one area of apparently widespread abuse should be noted. In criminal cases, an arresting or investigating officer should not be put in the false position of seeming just to have happened upon the scene; he should be allowed some explanation of is presence and conduct. His testimony that he acted "upon information received," or words to that effect, should be sufficient. Nevertheless, cases abound in which the officer is allowed to relate historical aspects of the case, replete with hearsay statements in the form of complaints and reports, on the ground that he was entitled to give the information upon which he acted. The need for the evidence is slight, the likelihood of misuse great.

The Supreme Court recently agreed with Harris in State v. Baird, 572 So.2d 904 (Fla.1990).

The contents of the BOLO of reports of a female screaming were an important element in this case because it was used as evidence to contradict appellant's consent defense. It was not necessary for a logical sequence of events. The officer could have simply stated that he was dispatched to the area as a result of information received or a citizen complaint. After all, it matters not whether the officer was there as a result of a reported drug deal or because of a female screaming. What was important were his actions and observations as he approached and encountered appellant and the victim. Because the information was inadmissible hearsay, and was improperly used by the prosecuting attorney to prove the truth of the matter asserted, we conclude that the error was not harmless. State v. DiGuilio, 491 So.2d 1129 (Fla.1986). Thus, this case must be remanded for a new trial.

For purposes of retrial, we also address one other issue raised. At trial appellant sought to challenge the victim's motive for accusing appellant. They were (1) her relationship with her parents; (2) prior cocaine use, and (3) that the father of her baby was in prison. With respect to points two and three we find no error. However, with respect to refusing to permit examination of her...