Lopez v. State

• Decision Date: 29 July 1998
• Docket Number: No. 96-2065,96-2065
• Citation: 716 So.2d 301
• Parties: 23 Fla. L. Weekly D1752 Nevil McDonald LOPEZ, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 301

716 So.2d 301

23 Fla. L. Weekly D1752

Nevil McDonald LOPEZ, Appellant, v. The STATE of Florida, Appellee.

No. 96-2065.

District Court of Appeal of Florida,

Third District.

July 29, 1998.

Bennett H. Brummer, Public Defender, and John M. Selden, Special Assistant Public Defender, for appellant.

Robert A. Butterworth, Attorney General, and Linda S. Katz, Assistant Attorney General, for appellee.

Before COPE, GERSTEN and SORONDO, JJ.

COPE, Judge.

Nevil McDonald Lopez appeals his convictions for two counts of attempted first-degree murder with a firearm and three counts of aggravated assault with a firearm. He also challenges his adjudication on two counts as a habitual offender. We affirm in part and reverse in part.

The criminal charges arose from what began as an altercation between the defendant-appellant Lopez and his wife, Lynette Laimes. Ms. Laimes attended a birthday party and went outside to the parking lot of the apartment building for some fresh air. A few minutes later defendant drove up in a white truck. Defendant got out with a gun in his hand, put his hand on Ms. Laimes' neck, and the two began struggling. Defendant then returned to his truck, apparently waiting for Ms. Laimes to get in her own car and follow him. When she did not do so, defendant got out of his truck again, said "babe, babe, problem," and began firing his weapon in Ms. Laimes' direction. Ms. Laimes dropped to the ground but was not injured. The partygoers in the parking lot began running away.

Craig Manor and Darryl Mathis were attempting to leave the party when they inadvertently encountered defendant in the parking lot, still armed. Manor and Mathis took shelter on one side of a parked car while defendant pointed his gun at them from the other side of the car. Manor heard a click, which he interpreted to be defendant's attempt to fire the gun, and it misfired, or possibly the defendant tapped the gun on the car window. Mathis fled. Defendant came around the car and held Manor at gunpoint. By this time there had been many gunshots, and Manor believed that once defendant began firing his weapon, others at the party may have fired back. ¹ Manor attempted to assure defendant that he had not fired a gun at defendant. After staring at Manor for a few moments, defendant turned and jogged across the street, disappearing behind other apartment buildings. Defendant left behind the white truck. The truck was impounded by police and later, after defendant's arrest, was released to Ms. Laimes at defendant's instruction.

Defendant was charged with aggravated assault with a firearm on Ms. Laimes, based on the first encounter between Ms. Laimes and defendant, and was charged with attempted first-degree murder of Ms. Laimes with a firearm, based on his shooting at her. Defendant was charged with attempted first-degree murder of Manor based on the apparent attempt to fire the weapon at Manor. Defendant was charged with aggravated assault of Manor and Mathis, based on defendant's holding both men at gunpoint. Ms. Laimes, defendant's wife, refused all cooperation with the authorities and did not testify at trial. Mathis did not testify because he could not be located. The trial proceeded on the basis of other witnesses and evidence. Defendant was convicted as charged and this appeal follows.

I.

Defendant argues that the trial court erred by admitting as substantive evidence an eyewitness statement given to Officer Brajic immediately after the shooting incident by Vanessa Burse. Upon hearing gunshots, Ms. Burse called 911 and then looked out of the window of the apartment where the party was being given. She observed defendant in the parking lot with the weapon and described a portion of his activities. She did not know the defendant, but gave the police a good physical description of him. When Officer Brajic testified to Ms. Burse's statements, defendant objected on hearsay grounds.

The defense objections were properly overruled. The State established that in the aftermath of the shooting incident, the witnesses were excited and upset. The testimony was properly admitted under the hearsay exception for excited utterances. See § 90.803(2), Fla. Stat. (1995); Williams v. State, 714 So.2d 462 (Fla. 3d DCA 1997). ²

II.

Defendant argues that the trial court erred by refusing to give a limiting instruction to the jury that certain prior inconsistent statements of Craig Manor could only be considered for impeachment purposes, not as substantive evidence. On two occasions during the direct examination of Manor, and on three occasions during redirect examination, the State impeached Manor with inconsistencies between Manor's in-court testimony and his pretrial sworn statement given to the prosecutor. At the time of the impeachment, defendant did not request a limiting instruction.

After Manor left the stand, and another witness had testified, defendant for the first time requested that the jury be given a limiting instruction that Manor's prior inconsistent statements could be considered by the jury solely for impeachment purposes and not as substantive evidence. The request was denied.

We conclude that the request was untimely and sustain the denial on that basis. "[S]ection 90.107, Florida Statutes, provides that where evidence is properly admitted for a limited purpose such as to cast doubt on a witness's credibility, 'the court, upon request, shall restrict such evidence to its proper scope and so inform the jury at the time it is admitted.' (Emphasis supplied.)" Lightfoot v. State, 591 So.2d 305, 306 (Fla. 1st DCA 1991); see State v. Smith, 573 So.2d 306, 317 (Fla.1990) ("Because no requests for instructions were made contemporaneous to the introduction of other alleged prior inconsistent statements, the trial court did not err by failing to specially instruct the jury."); Charles W. Ehrhardt, Florida Evidence § 608.4, at 424 (1998 ed.). ³

III.

Defendant contends that the trial court erred by overruling his hearsay objection when Sergeant Frisenda testified about Craig Manor's pretrial statements expressing fear of defendant. As Manor's statements fall within the hearsay exception for then-existing mental, emotional, or physical condition, the hearsay objections were properly overruled.

At trial, Manor retreated in certain respects from his pretrial statements to the police officers and prosecutor, including expressing some uncertainty about his pretrial identification of defendant. In order to show the motivation for this, the State asked Sergeant Frisenda about his conversation with Manor when the Sergeant served trial subpoenas on him. Sergeant Frisenda testified:

A. He advised that he was in fear of the Defendant and the friends of the Defendant, afraid of retaliation if he testified, but when we explained the requirements of the subpoena to appear in court, he agreed that he would appear.

Q. Did you go the second time that he was served?

A. Yes, I did.

....

Q. What did he say to you this time?

A. The second time he reiterated his fear to testify against the Defendant and to state his observations of the incident in court. Again, stating that he was in fear of retaliation by friends of the Defendant. He also advised that to protect himself or to not fall into danger with this person's friends he might not be totally truthful with the court as far as the identity of the Defendant.

(Emphasis added).

Section 90.803(3), Florida Statutes, creates a hearsay exception for:

(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.

(b) However, this subsection does not make admissible:

1. An after-the-fact statement of memory or belief to prove the fact remembered or believed, unless such statement relates to the execution, revocation, identification, or terms of the declarant's will.

2. A statement made under circumstances that indicate its lack of trustworthiness.

(Emphasis added).

Prior to trial, Manor had been unequivocal in his identification of defendant from the photo lineup. However, when subpoenaed for trial Manor told Sergeant Frisenda that for reasons of fear and self protection, he might not be totally truthful with the court as far as the identity of the defendant was concerned. At trial, Manor repeatedly expressed uncertainty about his identification of the defendant. Manor's statements to Sergeant Frisenda came within the section 90.803(3) hearsay exception and were admissible to explain Manor's subsequent conduct, namely, his trial testimony. See id. § 90.803(3)(a)2; Avila v. State, 545 So.2d 450, 451 (Fla. 3d DCA 1989); see also United States v. Cerone, 452 F.2d 274, 288 (7th Cir.1971); United States v. Schennault, 429 F.2d 852, 855 (7th Cir.1970).

Defendant contends that the testimony was unfairly prejudicial but we disagree. Manor told the officer point blank that because of fear he planned to alter his trial testimony. The jury was entitled to know this. Under the circumstances, it was not unfairly prejudicial to refer to Manor's fear. Defendant had escalated a minor quarrel with his wife into a shooting spree which culminated in defendant holding Manor at gunpoint. Any reasonable person in Manor's position would be fearful of defendant. The probative value outweighed any claim of unfair prejudice.

IV.

Defendant argues that the trial court erred by admitting, over objection, testimony by Officer Brajic that he observed two spectators engaged in threatening behavior toward two trial witnesses in the hallway outside the courtroom.

On the second day of trial, ...