Nock v. State

• Court: Florida Supreme Court
• Writing for the Court: CANADY, C.J.
• Citation: Nock v. State, 256 So.3d 828 (Fla. 2018)
• Decision Date: 01 November 2018
• Docket Number: No. SC17-472,SC17-472
• Parties: Gabriel Brian NOCK, Petitioner, v. STATE of Florida, Respondent.

256 So.3d 828

Gabriel Brian NOCK, Petitioner,

v.STATE of Florida, Respondent.

No. SC17-472

Supreme Court of Florida.

November 1, 2018

Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, Fifteenth Judicial Circuit, West Palm Beach, Florida, for Petitioner

Pamela Jo Bondi, Attorney General, Tallahassee, Florida, Celia Terenzio, Bureau Chief, and Don M. Rogers, Assistant Attorney General, West Palm Beach, Florida, for Respondent

CANADY, C.J.

In this case, we consider an issue regarding the rule of completeness codified in the Florida Evidence Code and a related issue concerning the rule of evidence authorizing the impeachment of hearsay declarants. This Court granted jurisdiction to review the decision of the Fourth District Court of Appeal in Nock v. State , 211 So.3d 321 (Fla. 4th DCA 2017), in which the district court certified conflict with the Second District's decision in Foster v. State , 182 So.3d 3 (Fla. 2d DCA 2015), on the latter issue. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

Specifically, two issues are presented on review: (1) whether a defendant is permitted to require the State under section 90.108(1), Florida Statutes (2014)—the statutory rule of completeness—to introduce into evidence the entire video recording of the defendant's statement to police when the State has questioned a detective on direct examination concerning inculpatory statements of the defendant without introducing any portion of the recording of the defendant's statement and (2) whether the State is permitted to impeach a defendant under section 90.806(1), Florida Statutes (2014)—which authorizes attacking the credibility of a hearsay declarant—when the defendant elicits from the detective on cross-examination exculpatory portions of the defendant's statement to the police.

We hold that section 90.108(1) does not apply unless a written or recorded statement is introduced into evidence. We also hold that a defendant is subject to impeachment under section 90.806(1) whenever the defendant introduces through cross-examination hearsay exculpatory statements of the defendant. We approve the decision of the Fourth District in Nock , and we disapprove the decision of the Second District in Foster on the conflict issue.

BACKGROUND

In the case on review, "[a] jury found [Nock] guilty of first degree murder while engaged in the commission of a robbery and tampering with physical evidence." Nock , 211 So.3d at 323. The trial court entered judgment in accordance with the guilty verdicts and "sentenced [Nock] to life imprisonment with a concurrent term of 120 months." Id. On appeal from the conviction and sentence, the Fourth District set out the facts of the crimes:

The evidence revealed that the victim, a sixty[-]eight-year-old retired man, took [Nock], a twenty-seven-year-old man, home with him from the beach. When the victim did not show up later that day for a planned dinner, the victim's friend went to his house. There, he discovered the victim lying face down in the kitchen.

A detective arrived at the scene and spoke to witnesses, who saw the victim eating with a younger man on his back porch earlier that day. A medical examiner determined the victim had extensive injuries to his neck consistent with pressure being applied to the area. He questioned whether it was horseplay or erotic choking, but determined more force was likely used to cause the victim's death.

During the investigation, law enforcement discovered videos showing [Nock] using the victim's credit card at various Broward County stores. Surveillance videos showed the victim's car at locations where the card was used. [Nock] actually gave his phone number to a cashier while using the victim's credit card.

Law enforcement obtained a pen-register/trap and trace order to access information concerning [Nock's] cell phone, and an order specifically authorizing the use of real time cellular site information ("CSLI") to track the cell phone. Six days after the victim's death, a Broward detective was notified that [Nock's] cell phone had been turned on for the first time in three days. The cell phone signal was tracked to South Beach.

Broward law enforcement traveled to South Beach in unmarked police cars. Using a still photo of [Nock] from a surveillance video, they located him. They flagged down a Miami Beach police officer, who detained [Nock].

When the detective arrived, he introduced himself to [Nock], who responded by asking whether he was being approached about the car or the warrant out of Delaware. The detective observed [Nock] in possession of a tote bag with the victim's initials on it. The detective saw the victim's business cards, credit cards, car keys, and a lap top computer inside the tote bag. He confirmed [Nock's] cell phone as the one they were tracking and noted [Nock's] resemblance to the still photo.

Broward law enforcement then took [Nock] to their office where he gave a Mirandized statement to the detective. Neither party introduced the video recording of the interrogation into evidence. Instead, the State called the detective to testify about [Nock's] statement.

On direct examination, the detective testified that [Nock] initially stated he did not know the victim and he had bought all the items from someone on the beach. [Nock] later acknowledged he knew the victim. The detective testified: "[Nock] put his head down and shook his head and said, he wasn't suppose[d] to die, it wasn't suppose[d] to happen this way, and then he began telling me more details about what had happened."

[Nock] told the detective that he left the beach with the victim, who was going to pay him for sex. The victim had a wrestling fetish and asked [Nock] to engage in "wrestling moves" where he would put the victim in a headlock until he "tap[ped] out," indicating that the move was too forceful. This activity first occurred upstairs in the victim's home. [Nock] then took the victim's wallet and credit cards before going downstairs.

In the kitchen, [Nock] again put the victim in a headlock, but this time the victim collapsed. [Nock] claimed the victim never tapped out. He became scared when he could not wake the victim. He then poured bleach around the kitchen and living room to cover up his presence, grabbed whatever items he could, and left in the victim's car.

Id. at 322-23 (some alterations in original). The Fourth District also set out the following relevant information regarding Nock's trial:

[Prior to trial, Nock] filed a motion [in limine] seeking to require the State to admit the entire video recording of [Nock's] statement into evidence, under the best evidence rule and the [statutory] rule of completeness. The trial court denied the request, specifically finding the rule of completeness [contained within section 90.108(1), Florida Statutes (2014),] inapplicable because the State did not offer the video into evidence. The [trial] court stated that if the desired portions of the statements were elicited when the defense cross-examined the detective, then section 90.806(1), Florida Statutes (2014), allowed the State to use [Nock's] prior convictions for impeachment.

[Nock] later renewed his rule of completeness objection during the State's direct examination of the detective; the court denied the motion. During a sidebar, the State suggested that [Nock] was free to introduce the video in his portion of the case. Rather than do so, the defense cross-examined the detective regarding the exculpatory portions of [Nock's] statement, which supported his defense of the victim's death being an accident.

As a result, the jury was later advised of [Nock's] "nine prior convictions of felonies or crimes involving dishonesty." The trial court instructed the jury that the prior crimes were not evidence of guilt and should only be used in assessing [Nock's] credibility.

Id. at 323.

Nock raised an issue before the Fourth District "concerning the detective's testimony regarding [Nock's] statement" to the police. Id. at 322. In that issue, Nock argued that "the trial court abused its discretion in denying his motion in limine and overruling his subsequent objections concerning the introduction of [Nock's] entire recorded statement." Id. at 324. Specifically, Nock argued that: "(1) the rule of completeness applie[d]" under section 90.108(1) and "(2) the trial court erred in permitting the State to impeach [Nock's] credibility with evidence of his prior felony convictions" under section 90.806(1). Id.

The Fourth District rejected each of Nock's arguments on appeal concerning the detective's testimony regarding Nock's statement to the police. Id. at 324-25. As to the first argument, the Fourth District concluded that "the trial court properly ruled the [statutory] rule of completeness inapplicable" because the State "questioned the detective on direct examination about his conversation with [Nock]" without "introduc[ing] [Nock's] recorded statement" into evidence. Id. at 324. The Fourth District explained that "the [statutory] rule of completeness does not apply when the written or recorded statement is not introduced into evidence." Id. As to the second argument, the Fourth District concluded that "the [trial] court correctly permitted the jury to learn of [Nock's] nine prior felonies and crimes of dishonesty" because "defense counsel brought out the exculpatory portions of [Nock's] statement during cross-examination of the detective." Id. at 325. The Fourth District acknowledged that the position advanced by Nock's second argument—"that he should not be subjected to impeachment through his prior felonies just because he cross-examines a witness about his statement"—is supported by the Second District's decision in Foster . Id. at 324. "There, the Second District held [that once the State introduced a portion of the defendant's statement into evidence,] the defendant was entitled to have the jury hear the remainder of his statement without placing his credibility in issue [u...