McCallister v. State, 5D99-3069.

• Citation: 779 So.2d 615
• Decision Date: 02 March 2001
• Docket Number: No. 5D99-3069.,5D99-3069.
• Parties: Samuel Newton McCALLISTER, Appellant, v. STATE of Florida, Appellee.
• Court: Court of Appeal of Florida (US)

779 So.2d 615

Samuel Newton McCALLISTER, Appellant, v. STATE of Florida, Appellee.

No. 5D99-3069.

District Court of Appeal of Florida, Fifth District.

March 2, 2001.

James B. Gibson, Public Defender, and John M. Selden, Assistant Public Defender, Daytona Beach, for Appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Appellee.

SAWAYA, J.

Samuel McCallister appeals from a judgment of the trial court finding him guilty of aggravated assault with a deadly weapon. McCallister argues, inter alia, that the trial court erred in admitting testimony regarding an unduly prejudicial statement made by McCallister. We reverse.

An argument ensued between McCallister and his neighbor. McCallister became enraged, entered his apartment, obtained a machete, proceeded back outside and, with the weapon in hand, approached the neighbor and threatened to kill him. The frightened neighbor retreated to his home and telephoned the police, who came to the scene and arrested McCallister.

The issue is whether the trial court erred in admitting a statement McCallister made as he was being transported to jail after his arrest. He stated, "That nigger is dead; when I get out, he better hope I never get out." The trial court granted a pre-trial motion in limine that prohibited the State from admitting this statement, but reversed its decision during the trial. A trial court's pre-trial ruling on a motion in limine is tentative because the shifting sands of the trial in progress may cause a trial judge to rethink an earlier evidentiary ruling based on a maturing understanding of the case. See Donley v. State, 694 So.2d 149 (Fla. 4th DCA 1997)

; Blackburn v. State, 314 So.2d 634 (Fla. 4th DCA 1975).

Here, when the trial judge initially granted the motion in limine, he stated that he was unable to weigh the probative value versus the prejudicial effect of the evidence because he had not heard any evidence. After the deputy who heard the statement testified, however, the State proffered the statement and the trial court reversed its initial ruling and allowed the statement.

We conclude that the initial ruling was correct and that admitting the statement was error because the statement's probative value is far outweighed by the prejudice to McCallister. See Carrillo v. State, 727 So.2d 1047 (Fla. 2d DCA 1999)

. First, as in Carrillo, the prejudicial statement was made subsequent to the initial incident. In fact, the arrest was made approximately 45 minutes after the incident. Because the statement was so far removed in time from the incident, it had very little probative value as to McCallister's motive. Moreover, the only witness to testify regarding the statement, over objection, was the deputy. At...