Kingery v. State

• Decision Date: 30 March 1988
• Docket Number: No. BT-23,BT-23
• Citation: 523 So.2d 1199,13 Fla. L. Weekly 820
• Parties: 13 Fla. L. Weekly 820 John Lee KINGERY, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1199

523 So.2d 1199

13 Fla. L. Weekly 820

John Lee KINGERY, Appellant, v. STATE of Florida, Appellee.

No. BT-23.

District Court of Appeal of Florida First District.

March 30, 1988.

Louis O. Frost, Jr., Public Defender, Alan Chipperfield, and James T. Miller, Asst. Public Defenders, Jacksonville, for appellant.

Robert A. Butterworth, Atty. Gen., John W. Tiedemann, and Edward C. Hill, Jr., Asst. Attys. Gen., Tallahassee, for appellee.

PER CURIAM.

Appellant John Lee Kingery seeks review of his conviction and sentence for second degree murder. The issues raised on appeal concern: (1) the admission of testimony regarding the victim's state of mind the evening before his death, (2) the ruling designating a state witness partially adverse, (3) the prosecutor's consultation with a state witness during a recess in her cross examination, (4) the jury instructions on excusable homicide and justifiable homicide, (5) the admission of a photograph of the victim and the prosecutor's use of the photograph in closing argument, (6) the denial of a motion for mistrial after a detective's comment on appellant's courtroom appearance, and (7) the imposition of a sentence exceeding the recommended guideline sentence. We reverse and remand for a new trial.

The tragic events leading up to appellant's arrest and subsequent conviction occurred in the early morning hours of November Some background information is helpful for an understanding of the events which form the subject of this appeal. The record reflects that appellant and Davis, both 27 years old, attended the same high school, but were not friends. Davis developed an interest in a young woman who was employed as a bartender at a local bar, but she refused his attentions. On the night of the shooting, Davis learned that the young woman was romantically involved with appellant.

2, 1986, in the parking lot of a Jacksonville bar. On November 2, 1986, appellant was arrested and charged with the shooting death of Arthur Max Davis (Davis). Appellant admitted the shooting, but stated he acted in self defense. Initially, the state filed a two-count information charging appellant with second degree murder and use of a firearm in commission of a felony. After plea negotiations proved unsuccessful, the state sought and obtained an indictment charging appellant with first degree murder.

The state presented four witnesses during its case-in-chief. The testimony of these four witnesses established that from 12:30 until 2:30 a.m. of November 2, 1986, appellant and Davis engaged in four confrontations. Appellant was alone during all but the second confrontation, but Davis was accompanied throughout by two friends, a male and a female. Davis was intoxicated, and was described by one witness as belligerent, obnoxious, and obscene. Conversely, witnesses described appellant as appearing nervous and intimidated, and stated that appellant repeatedly told Davis to leave him alone. The first and second confrontations were limited to oral exchanges. However, when appellant walked away from the second confrontation with Davis, he opened his truck door to get in the driver's seat, and deliberately damaged the door of Davis's truck by bumping it with the door of his own truck.

During the third confrontation, more obscenities were exchanged. In addition, Davis made inappropriate references to appellant's girl friend, and appellant responded in kind with respect to the woman accompanying Davis. At that point, the woman reached in appellant's truck window and slapped him. As Davis continued to harangue, appellant displayed a gun that had been under his truck seat, and again told Davis to leave him alone.

Between the third and fourth confrontation, Davis got in the back of his pick-up truck and removed his shirt and shoes, saying he wanted to be prepared--"in case the guy want[s] to fight." The fourth confrontation took place in front of the bar where appellant's girl friend worked. Appellant was seated in his truck in the parking lot, talking with his girl friend who stood beside the truck. Davis's truck pulled into the parking lot and came to a quick stop. Davis, clad only in blue jeans, jumped from the back of the truck and moved toward appellant, calling him obscene names. Appellant's girl friend attempted to stay between the two men, but Davis reached around her and struck appellant about the head and shoulders.

As appellant's girl friend went into the bar to call the police, Davis rushed appellant a second time. Appellant went down on the truck seat. When he came up, he shot Davis in the chest. Davis turned and caught the side of his truck. Davis's left knee touched the ground briefly, then he pulled himself back up, keeping one hand on the truck. Appellant got out of his truck, and as Davis reached toward him with his right hand, appellant shot a second time. The second shot struck Davis in the head.

The jury found appellant guilty of second degree murder. The trial court departed from the recommended 12 to 17 year sentencing range, and sentenced appellant to a 25-year term of incarceration, providing as reasons (1) the flagrant disregard for the life and safety of others, and (2) the use of excessive force.

The first issue for our consideration concerns statements purportedly made by the victim Max Davis some five hours before the shooting. These statements were introduced into evidence through the testimony of two rebuttal witnesses. These witnesses saw Davis at approximately 9:00 It is well settled that hearsay is inadmissible unless it falls within one of the exceptions to the hearsay rule. § 90.802, Fla.Stat. (1985); Correll v. State, 13 F.L.W. 34, 35 (Fla. Jan. 14, 1988). In this case, the testimony of the rebuttal witnesses was admitted on the basis of the state of mind exception provided at section 90.803(3)(a), which states:

                p.m. of the night of the shooting.  Over objection, the witnesses testified that Davis was in a happy mood and said he might go to a bar to see a "girl [that] he liked or she liked him."   One of the witnesses said Davis asked how he could get the girl to go out with him.  The witness advised Davis to take the girl a single rose.  According to both witnesses, Davis said the girl's "ex-boyfriend or some guy" might be jealous, but that he [Davis] would not fight the "guy."   The witnesses stated that Davis did not appear to have been drinking when they saw him
                

The provision of s. 90.802 to the contrary notwithstanding, the following are not inadmissible as evidence, even though the declarant is available as a witness:

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(3) Then existing mental, emotional, or physical condition.

(a) A statement of the declarant's then existing state of mind, emotion, or physical sensation, including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health, when such evidence is offered to:

(1) Prove the declarant's state of mind, emotion, or physical sensation at that time or at any other time when such state is an issue in the action.

(2) Prove or explain acts of subsequent conduct of the declarant. (Emphasis supplied.)

Out of court statements are admissible under the state of mind exception if (1) the statement shows the declarant's future intent to perform an act that is at issue in the case, or (2) the statement shows the declarant's state of mind when the statement was made or at any other time when that state is an issue in the case. Correll, 13 F.L.W. at 35; Wells v. State, 492 So.2d 712, 716 (Fla. 1st DCA) review denied, 501 So.2d 1283 (Fla.1986); Morris v. State, 456 So.2d 471, 474-476 (Fla. 3d DCA 1984), rev'd, 487 So.2d 291 (Fla.1986); Ehrhardt, Florida Evidence § 803.3a (2d Ed.1984); Dobson, Evidence, 11 Nova L.J. 1291, 1391 (1987). This is particularly true when the purported statements to a third party were made by a homicide victim. Correll v. State, 13 F.L.W. at 35; Bailey v. State, 419 So.2d 721 (Fla. 1st DCA 1982); Fleming v. State, 457 So.2d 499 (Fla. 2d DCA 1984), petition for review denied, 467 So.2d 1000 (Fla.1985); Hunt v. State, 429 So.2d 811 (Fla. 2d DCA 1983); Ehrhardt, § 803.3a, pp. 476-477, f.n. 3. Indeed, a homicide victim's purported statements to a third party have been deemed admissible only in three general categories in which the need for the statements appears to overcome the possible prejudice. These categories are: (1) the defendant claims self defense, which can be rebutted by the victim's statements that he feared the defendant; (2) the defendant claims the victim committed suicide, which can be rebutted by statements of the victim that are inconsistent with suicide; and (3) the defendant claims the victim's death was accidental, which can be rebutted by the victim's statements that he feared whatever the instrument of death proved to be. However, if the evidence is highly prejudicial, it will be excluded even if it has a high degree of relevance. Kennedy v. State, 385 So.2d 1020, 1021 (Fla. 5th DCA 1980), citing United States v. Brown, 490 F.2d 758, 767 (D.C.Cir.1973); Ehrhardt, § 803.3a, at pp. 476-477, f.n. 3.

The sole issue at trial was appellant's claim that he acted in self defense. The testimony of the state's witnesses established that Davis was the aggressor. The record does not reflect, nor does the state suggest, that Davis feared appellant in any way. Although a claim of self defense will provide the vehicle for admission into evidence of otherwise inadmissible hearsay if the statement is offered to show that the victim feared the accused, the hearsay testimony in this case does not satisfy that test. While purportedly admitted The second issue concerns the ruling which declared one of the state's witnesses partially adverse, and allowed the witness to be impeached by purportedly prior inconsistent statements. The first of these statements pertained to the time between the two shots. On direct...