Lopez v. State
| Decision Date | 17 November 2004 |
| Docket Number | No. 1D03-2761.,1D03-2761. |
| Citation | 888 So.2d 693 |
| Parties | Moroni LOPEZ, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Nancy A. Daniels, Public Defender and Jamie Spivey, Assistant Public Defender, Tallahassee, for Appellant.
Charles J. Crist, Jr., Attorney General and Felicia A. Wilcox, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
The defendant, Moroni Lopez, appeals his conviction for possession of a firearm by a convicted felon. We conclude that the trial court erred in allowing the jury to consider a hearsay statement made by a person who said that he observed the defendant in possession of the firearm. The statement was testimonial and the declarant was not available or subject to prior cross-examination. Consequently, the admission of his statement violated the defendant's Sixth Amendment right to confront the witnesses against him.
Police officers were dispatched to an apartment complex in Tallahassee on the morning of September 23, 2002, to investigate a report of a kidnaping and assault. Officer Mel Gaston encountered the alleged victim, Hector Ruiz, standing in the parking lot. Ruiz was nervous and he appeared to be upset. Officer Gaston asked Ruiz what had happened, and he said that a man had abducted him in his own car at gunpoint. Ruiz then pointed through his body to the defendant who was standing about twenty-five yards behind him in the parking lot.
A short time later, Ruiz told Officer Frank Arias that the gun used during the abduction was in his car. The officers searched the car and found a loaded .38 caliber Smith & Wesson revolver under the front passenger seat. Officer Arias advised the defendant of his rights and questioned him about the revolver. According to officer Arias, the defendant admitted that the revolver was his. He explained that he hid the gun in Ruiz's car when he saw the police officers.
Based on these facts, the state charged the defendant with armed kidnaping, assault with a weapon, and possession of a firearm by a convicted felon. The defendant entered a plea of not guilty to these charges and sought discovery from the state. Hector Ruiz appeared for a discovery deposition and he was questioned by defense counsel. By the time of the trial, however, Ruiz was unavailable as a witness. The state was unable to serve him with a subpoena.
Just before the trial, the prosecutor informed the court and defense counsel that the state would be proceeding only on the charge of possession of a firearm by a convicted felon. Defense counsel moved to exclude the statements Hector Ruiz made to Officer Gaston, and the court held a hearing on that issue outside the presence of the jury. The prosecutor argued that the statement was admissible under the excited utterance exception to the hearsay rule.
Defense counsel objected on the ground that the statement did not qualify under the exception. Additionally, defense counsel argued that the admission of the statement would violate the defendant's right under the Sixth Amendment to confront the witnesses against him. The trial court held that the statement was admissible, and the officers were allowed to give an edited version of the events. The jurors were not told about the alleged abduction, but they did hear the statement Ruiz made to Gaston identifying the defendant as the person who had the revolver.
The defendant testified in his own defense and denied that he had possessed the firearm. He also repudiated the admission attributed to him by Officer Arias. The defendant told the jury that he believed he had been set up by Ruiz and his employer, Mario Morqucho. The day before he was accused of this offense, the defendant reported to law enforcement officers that he had been the victim of a sexual battery perpetrated by Morqucho. He said that he was also at odds with Ruiz. As he explained, he could not get Ruiz to leave his apartment. The defendant told the jury that he thought Ruiz and Morqucho set him up in retaliation for the complaints he had made against them.
The jury found the defendant guilty with a special finding that he was in actual possession of the firearm. After the verdict, the trial judge imposed a sentence of three years in the Department of Corrections with a three-year mandatory minimum term. The defendant then filed a timely appeal to this court.
Whether the out-of-court statement by Hector Ruiz was properly admitted in evidence against the defendant is a question involving federal constitutional law as well as the state law of evidence. The statement must qualify as an exception to the hearsay rule to be admissible under the Florida Evidence Code. However, it would not resolve the present controversy merely to conclude that the statement meets one of the exceptions to the hearsay rule. Because this is a criminal case, we must also determine whether the admission of the statement violates the defendant's Sixth Amendment right to confront the witnesses against him.
Section 90.802 of the Florida Evidence Code states the general rule that hearsay is inadmissible except as provided by statute. Hearsay is defined in section 90.801(1)(c) as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." The parties agree that the statement Officer Gaston attributed to Hector Ruiz was hearsay. It was offered to prove the truth of Ruiz's assertion that the defendant had the firearm in his possession. It follows that the statement was not admissible in evidence unless it falls within one of the statutory exceptions to the hearsay rule.
The state argues that the statement was admissible under the excited utterance exception in section 90.803(2), which authorizes the admission of "[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," notwithstanding the general prohibition against hearsay. The rationale for this exception is that a statement made during a period of excitement is likely to be more reliable than a statement made after a period of reflection. See Evans v. State, 838 So.2d 1090 (Fla.2002). A person who is startled and excited does not have the capacity to analyze the facts or to make a conscious misrepresentation of the event. A statement made during a period of excitement is therefore less likely to be contrived.
Florida courts have drawn three elements from the text of section 90.803(2). According to the case law, the excited utterance exception applies when (1) there is an event startling enough to cause nervous excitement; (2) the statement was made before there was time for reflection; and (3) the statement was made while the person was under the stress of the excitement from the startling event. See Stoll v. State, 762 So.2d 870, 873 (Fla.2000); Rogers v. State, 660 So.2d 237, 240 (Fla.1995); State v. Jano, 524 So.2d 660, 661 (Fla.1988). The courts have declined to set a fixed amount of time that is sufficient for reflection, but have reasoned instead that the requisite time is a subjective matter that depends on the circumstances. See Rogers, 660 So.2d at 240; Werley v. State, 814 So.2d 1159, 1161 (Fla. 1st DCA 2002).
With these guiding principles, the trial judge could properly conclude that the statement at issue was an excited utterance. The abduction at gunpoint was undoubtedly a startling event. Whether the declarant had enough time for reflection is a matter that might be subject to debate, but we have no reason to question the trial court's judgment on this point. The statement was made only six to eight minutes after the crime had been reported and it is reasonable to assume that the declarant had not regained his composure in that time. Finally, there is evidence to support the trial court's conclusion that the statement was made while the declarant was under the stress of the excitement of the event. Officer Gaston said that Ruiz appeared to be nervous or shaken up and that he was speaking rapidly.
The statement in this case qualifies as an excited utterance, for the reasons we have given, but that does not necessarily mean that it was properly admitted in evidence. An out-of-court statement is not admissible merely because it meets the definition of an excited utterance. In fact, the drafters of the Florida Evidence Code were careful not to leave this impression. The introductory language of section 90.803 states that an excited utterance is "not inadmissible" under the rule forbidding the use of hearsay. The language used here is precise. That a statement meets the definition of an excited utterance does not guarantee its admission in evidence at a trial or hearing, but only that it will not be excluded on the ground that it is hearsay. The statement might be inadmissible for other reasons.
When the prosecution seeks to introduce a hearsay statement against the defendant in a criminal case, the court must also determine whether the use of the statement would violate the defendant's constitutional rights. The Sixth Amendment states in material part, that "In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." The right guaranteed by this part of the Sixth Amendment differs from the kind of protection that is afforded by state evidence rules governing the admission of hearsay.
The standard for determining whether the admission of a hearsay statement against a criminal defendant violates the right of confrontation was recently modified in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Before the Crawford decision, the issue was controlled by the holding in Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), that a...
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