Neeley v. State, 1D03-2074.
| Decision Date | 31 August 2004 |
| Docket Number | No. 1D03-2074.,1D03-2074. |
| Citation | 883 So.2d 861 |
| Parties | Jarvon NEELEY, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Nancy A. Daniels, Public Defender and Glenna Joyce Reeves, Assistant Public Defender, Tallahassee, for Appellant.
Charles J. Crist, Jr., Attorney General and Karen M. Holland, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
The trial court erred in admitting into evidence a hospital record that contained the following statement: We reverse.
Identity an issue
The victim, driving with his girlfriend next to him and Appellant in the back seat, was intending to obtain change so that his girlfriend could purchase drugs from Appellant. Shots were fired, the victim suffered multiple wounds, including one to the head, and the vehicle crashed into another vehicle. These facts are undisputed.
The dispute exists as to who shot the victim. The victim, due to his injuries, has no recall of these events. Both the girlfriend and Appellant deny shooting the victim. Both had blood on their clothing. Testimony from crime scene technicians indicated the blood on Appellant's clothing matched that of the victim. However, the blood found on the girlfriend's shirt was never tested. They both initially fled the scene. Appellant admitted to lying about his identity when he was apprehended. Testing failed to reveal gunshot residue on either one. Neither saw the other shoot the victim. The treating physician testified it was possible, although not certain, that one of the shots was fired from behind the victim.
Appellant's first claim of error deals with the admission of the statement contained in the medical report. The treating physician testified that, though she did not prepare the medical report herself or record the statement, it was one made in the regular course of hospital business, and would have been made at the time of the victim's arrival. The records and inevitably, the statement, were admitted into evidence over the defense's objection that the statement: was covered by a motion in limine regarding hearsay testimony; was not taken by the physician who authenticated the record; and constituted hearsay on hearsay. After cross-examination, defense counsel renewed his objection, which was overruled.
Appellant contested the phrase: "from arrested assailant," which was included in the medical record. The phrase is clearly hearsay. There are two grounds upon which the trial court may have based its admission of the contested phrase. The first is the business records exception. See § 90.803(6)(a), Fla. Stat. (2001). The second is the exception for statements relevant to medical diagnosis or treatment. See § 90.803(4), Fla. Stat. (2001). Neither is appropriate.
While the medical record itself could qualify under the business record exception, it is clear the contested phrase contained therein could not because the resident who took the statement had no personal knowledge of the facts, and the victim was under no business duty to transmit the statement. See Van Zant v. State, 372 So.2d 502, 503 (Fla. 1st DCA 1979)
().
Neither does the contested phrase qualify under the medical treatment exception, because it was not relevant to medical diagnosis or treatment. See Torres-Arboledo v. State, 524 So.2d 403, 407 (Fla.1988)
().1 While the portion of the statement that he was shot multiple times qualifies as relevant to medical diagnosis or treatment, the portion that reads "from arrested assailant" does not.
While conceding the phrase was admitted in error, the state first argues the issue was not preserved. We disagree. When a party makes a hearsay objection, a trial court must consider all possible hearsay violations, exceptions, and exclusions. See Richardson v. State, 875 So.2d 673, 676 (Fla. 1st DCA 2004)
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