Lyles v. State, 81-1428
| Decision Date | 14 April 1982 |
| Docket Number | No. 81-1428,81-1428 |
| Citation | 412 So.2d 458 |
| Parties | Daniel James LYLES, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Jerry Hill, Public Defender, and Michael E. Raiden, Asst. Public Defender, Bartow, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and David T. Weisbrod, Asst. Atty. Gen., Tampa, for appellee.
This is an appeal from a judgment adjudicating the appellant guilty of the sexual battery of his four-year-old stepdaughter, Heather Kelly, and a sentence of life imprisonment entered thereon. We reverse.
The incident in question occurred during the late evening hours of August 29, 1980. Heather was left alone in an orange grove overnight and returned to her home by the appellant at approximately 10:15 a. m. the next day. Shortly thereafter she was questioned by Deputy Lee of the Highlands County Sheriff's Department. The family photo album was displayed to her, but she could not identify the perpetrator to the satisfaction of Deputy Lee. She was then taken to the hospital, and a physical examination revealed that she had lacerations in the vaginal area and that her hymen was torn.
At approximately 1:55 p. m. Heather was questioned by Sgt. Monica Sauls at the request of Deputy Lee. In response to questioning, Heather stated that her daddy had messed her up and that it was done in the oranges by the graveyard. Since she called both her father and her stepfather daddy, the family photo album was displayed to her and she identified the appellant. The album was admitted into evidence and Sgt. Sauls was allowed to state which picture Heather had chosen. On the basis of the statements made to her, Sgt. Sauls was allowed to draw the conclusion that the crime took place in Highlands County.
Heather did not testify at trial.
The appellant contends that it was error to allow Sgt. Sauls to testify, over objection, to statements made to her by Heather and also to draw conclusions from that testimony.
The appellee contends that the statements were admissible under the common law complaint theory or pursuant to the spontaneous statement exception to the hearsay rule.
We agree with the appellant's contention that it was error to admit the testimony.
The statements were clearly hearsay. Section 90.801(1)(c), Florida Statutes (1979), provides:
"Hearsay" is an out-of-court statement, other than one made by a declarant who testifies at the trial or hearing, offered in court to prove the truth of the matter contained in the statement.
Hearsay testimony is generally inadmissible for several reasons. First, the declarant is not testifying under oath. Second, the declarant is not in court for the trier of fact to observe his or her demeanor. Third, and of prime importance, the declarant is not subjected to cross-examination in order to test the truth of the statement. State v. Freber, 366 So.2d 426 (Fla.1978).
Section 90.801(2)(c), Florida Statutes (1979), provides that a statement is not hearsay if the declarant testifies at the trial and is subject to cross-examination concerning the statement and the statement is one of identification of a person made after perceiving him. This statute does not support the appellee's position because Heather did not testify at trial.
Under the facts of this case, we hold that the statements made by Heather to Sgt. Sauls were not admissible under the common law complaint theory advanced by the appellee. It is true that an outraged female should seek the first opportunity to complain, and the fact that she does complain is submitted to the jury as evidence. However, her detailed statement of the circumstances cannot be testified to by the party to whom she made the statement. The complaint itself is admissible to rebut any inference of consent which might be drawn from the prolonged silence of the victim, but not to prove the crime. Custer v. State, 159 Fla. 574, 34 So.2d 100 (1948).
There was no evidence that Heather complained to her grandfather, her mother, her grandmother, Deputy Lee, or Sgt. Sauls. Sgt. Sauls was allowed to repeat the detailed circumstances of the event obtained through interrogation of Heather.
The appellee's contention that the statements were admissible as spontaneous statements or excited utterances is also without merit.
Section 90.803(1), (2), Florida Statutes (1979), providing for hearsay exceptions, defines these statements as follows:
(1) SPONTANEOUS STATEMENT.-A spontaneous statement describing or...
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