Kennedy v. State, 77-2029
| Decision Date | 21 May 1980 |
| Docket Number | No. 77-2029,77-2029 |
| Citation | 385 So.2d 1020 |
| Parties | Annita Louise KENNEDY, Appellant, v. STATE of Florida, Appellee. /NT4-80. |
| Court | Florida District Court of Appeals |
David M. Porter, Public Defender, Titusville, and Joan H. Bickerstaff, Asst. Public Defender, Rockledge, for appellant.
Robert L. Shevin, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
The appellant, Annita Louise Kennedy, was convicted of the first degree murder of her husband, Charles Dwight Kennedy, and sentenced to life imprisonment. She now appeals her conviction on the ground that the admission of certain hearsay evidence, over defense objection, was erroneous and prejudicial to such a degree that it resulted in a denial of due process. Appellant urges that, but for the introduction of this prejudicial testimony, the jury would not have returned a guilty verdict. We find the admission of the evidence prejudicial and reverse.
The objectionable testimony involves two witnesses. Judy Spangler, an employee of the State Attorney's office, was allowed to testify that approximately three to four weeks prior to the murder the victim had told her that, "He wanted something to keep his wife away from him, that he was afraid that she was going to blow up his camper, and that she was around him twenty-four hours a day." On cross-examination, she testified that it was her opinion the deceased was in fear of the appellant.
The other witness, Gary Hood, a friend of the deceased victim, was allowed to testify that he knew the deceased fairly well, and that approximately one month prior to the victim's death, the victim told him that he was afraid of the appellant. He also testified that the victim "thought his wife would shoot him with a pistol" and that she always had a pistol with her which she was not afraid to use. On cross-examination, Hood further testified that the deceased victim told him that he didn't park his camper (in which he was living) in the same place so that he did not establish a pattern which his wife could follow. On redirect examination, Hood testified that the deceased told him that he did not want to establish a pattern because he was afraid his wife would send "her boys" out to find him.
Following the testimony of Mr. Hood, the court instructed the jury that Mr. Hood's testimony was to be considered
. . . only as evidence of Mr. Kennedy's state of mind at the time he made any statements . . . it is not evidence that a shooting in fact occurred or evidence that Mrs. Kennedy was involved in Mr. Kennedy's death. It is only evidence of the state of mind Mr. Kennedy had at the time he talked to Mr. Hood.
No limiting instruction was given regarding the testimony of Judy Spangler.
The statements which a murder victim purportedly makes to a third party, prior to a fatal incident, to the effect that the defendant intended to kill the victim in the future, are in almost all cases inadmissible as hearsay. See, State v. Wauneka, 560 P.2d 1377 (Utah 1977); People v. Ireland, 70 Cal.2d 522, 75 Cal.Rptr. 188, 450 P.2d 580 (1969); State v. Kump, 76 Wyo. 273, 301 P.2d 808 (1956). While such statements are not always inadmissible, the courts have found few exceptions to the general rule of inadmissibility. A good discussion of some of these notable exceptions can be found in United States v. Brown, 490 F.2d 758, 767 (D.C.Cir.1973), where the Court stated:
While there are undoubtedly a number of possible situations in which such statements may be relevant, the courts have developed three rather well-defined categories in which the need for such statements overcomes almost any possible prejudice. The most common of these involves defendant's claim of self-defense as justification for the killing. When such a defense is asserted, a defendant's assertion that the deceased first attacked him may be rebutted by the extrajudicial declarations of the victim that he feared the defendant, thus rendering it unlikely that the deceased was in fact the aggressor in the first instance. Second, where defendant seeks to defend on the ground that the deceased committed suicide, evidence that the victim had made statements inconsistent with a suicidal bent are highly relevant. A third situation involves a claim of accidental death, where, for example, defendant's version of the facts is that the victim picked up defendant's gun and was accidentally killed while toying with it. In such cases the deceased's statements of fear as to guns or of defendant himself (showing that he would never go near defendant under any circumstances) are relevant in that they tend to rebut this defense. Of course, even in these cases, where the evidence is of a highly prejudicial nature, it has been held that it must be excluded in spite of a significant degree of relevance.
It is significant that in those situations where such statements by the victim were admissible, the basis for admissibility was the relevance of the statement to an issue of proof. In this case, none of the purposes of admissibility cited in Brown, supra, are present. The appellant has not alleged self-defense, suicide, accident or any other defense where the prior threats made against the deceased, or the deceased's state of mind, are relevant to the defense asserted.
Succinctly stated, the state of mind exception to the hearsay rule allows the admission of extrajudicial statements to show the state of mind of the declarant at the time the statement is made if that is at issue in the case. Under the facts of this case, the victim's state of mind was not at issue. Although the testimony of Spangler and Hood was allegedly admitted for the purpose of demonstrating the declarant's state of mind, its real effect was to show the truth of its content, i. e. that the appellant had a preconceived design to kill the deceased. The State made no attempt to rely upon the felony murder rule to establish premeditated design. Rather, the State attempted to show that the murder was the result of a fully-formed, conscious intent on the part of the appellant to kill her husband.
Because premeditation is an essential element of the crime for which appellant was convicted, the introduction of inadmissible hearsay testimony to prove this element was clearly erroneous. Even though such evidence may have a degree of relevance, if its probative value is outweighed by its prejudicial effect, then it must be excluded. See, Brown, supra. The only proper purpose for which the deceased's statements could have been admitted was to show the deceased's state of mind, a factor clearly irrelevant to the issues at trial. See, Van Zant v. State, 372 So.2d 502 (Fla.1st DCA 1979).
We also reject the State's argument that...
To continue reading
Request your trial
-
Morris v. State
...time the statement is made when it is an issue in the case. See United States v. Brown, 490 F.2d 758 (D.C.Cir.1974); Kennedy v. State, 385 So.2d 1020 (Fla. 5th DCA 1980); Van Zant v. State, 372 So.2d 502 (Fla. 1st DCA 1979). In addition, the state-of-mind exception allows the introduction o......
-
People v. Thompson
...Commonwealth v. Bond (1984) 17 Mass.App.396, 458 N.E.2d 1198, 1200; People v. Madson (Colo.1981) 638 P.2d 18, 29; Kennedy v. State (Fla.App.1980) 385 So.2d 1020, 1021-1022; People v. White (1977) 401 Mich. 482, 257 N.W.2d 912, 922-923; State v. Wauneka (Utah 1977) 560 P.2d 1377, 1380; Commo......
-
State v. Kutz
...state of mind. State v. Fulminante, 975 P.2d 75, 88 (Ariz. 1999); Capano v. State, 781 A.2d 556 (Del. 2001); Kennedy v. State, 385 So. 2d 1020, 1021-22 (Fla. Dist. Ct. App. 1980); Commonwealth v. Zagranski, 558 N.E.2d 933, 936-37 (Mass. 1990); Hase v. American Guarantee & Liability Ins. Co.......
-
State v. Garcia
...95, 13 Cal.Rptr. 801, 362 P.2d 713 (1961); People v. Ireland, 70 Cal.2d 522, 75 Cal.Rptr. 188, 450 P.2d 580 (1969); Kennedy v. State, 385 So.2d 1020 (Fla.App.1980); State v. Wauneka, 560 P.2d 1377 (Utah 1977); State v. Kump, 76 Wyo. 273, 301 P.2d 808 (1956). However, in State v. Goodrich, 9......