Petit v. State

Decision Date25 July 2012
Docket NumberNo. 4D09–4253.,4D09–4253.
Citation92 So.3d 906
PartiesLukens PETIT, Appellant, v. STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

OPINION TEXT STARTS HERE

Jonathan S. Friedman, Law Offices of Jonathan S. Friedman, P.A., Fort Lauderdale, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, Mark J. Hamel, Assistant Attorney General, West Palm Beach, for appellee.

On Motion for Clarification

CIKLIN, J.

We grant the motion for clarification, withdraw our previous opinion and substitute the following in its place.

Introduction

Lukens Petit appeals his convictions for one count of felony murder, three counts of attempted felony murder, and one count of armed robbery. Petit received a life sentence for the felony murder and thirty years for each of the remaining convictions, all to be served concurrently. While ultimately we affirm the convictions, we write to discuss the Confrontation Clause arguments raised by Petit. As for all other arguments Petit raises, we find them to lack merit and do not discuss them further.

Background

On July 14, 2007, armed gunmen robbed a carwash in Pompano Beach. After the suspects fled in a vehicle, two of the victims pursued them onto southbound I–95 until the suspects took the Hollywood Boulevard exit. By this point, the suspects were being chased by police cars. The suspects ran through an intersection and crashed into a vehicle containing three individuals, all of whom were seriously injured. One of the individuals inside the suspects' vehicle was killed in the accident as well.

After Petit was arrested for his involvement in the robbery and automobile collision, Edder Joseph, the owner of a carwash and one of the robbery victims, testified at Petit's bond hearing.1 He said that he and his employee, Rubin Saint Remy, were at the carwash when a vehicle pulled in very fast; five men wearing homemade ski masks and holding guns, including at least one shotgun, got out of the vehicle and ordered everyone on the ground. The five men took Joseph's money, identification, and jewelry, got back into the vehicle, and fled the scene. Joseph and Saint Remy quickly entered one of the vehicles at the carwash and pursued the suspects onto and down I–95.

Joseph's testimony at the bond hearing was read into the evidence at Petit's trial because Joseph refused to testify. Sometime after the robbery, Joseph was the victim of a shooting, which he survived. Joseph then started living with various relatives and friends to elude authorities and anyone else. Petit objected to Joseph's bond hearing testimony being admitted at trial, arguing that it violated the Confrontation Clause as understood in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). The trial court overruled the objection, finding that the state demonstrated that Joseph was unavailable.

At the trial, audio recordings of four 911 calls were admitted into evidence and played for the jury. The first call came from an individual reporting the robbery. The second was a call back from the 911 operator after the first call was disconnected. The third call originated from Saint Remy as he and Joseph pursued the suspects on I–95, and the fourth call was initiated when the third call was disconnected and a 911 operator called back. Petit objected to all of these calls being admitted, arguing that they were Confrontation Clause violations under Crawford as well. The trial court found all of the calls to be nontestimonial because they were part of an ongoing emergency and admitted them.

Bond Hearing Testimony

Petit argues on appeal that Joseph's statements at the bond hearing were impermissibly admitted because they violated his Sixth Amendment 2 right to confront witnesses as explicated in Crawford. More specifically, Petit argues (1) the state did not prove Joseph's unavailability, and (2) there was no meaningful opportunity for cross-examination at the bond hearing.

In State v. Belvin, 986 So.2d 516 (Fla.2008), our supreme court summarized the Crawford holding of the United States Supreme Court:

[I]n Crawford, the Supreme Court ... held the admission of a hearsay statement made by a declarant who does not testify at trial violates the Sixth Amendment if (1) the statement is testimonial, (2) the declarant is unavailable, and (3) the defendant lacked a prior opportunity for cross-examination of the declarant. The Court emphasized that if “testimonial” evidence is at issue, “the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.” Crawford, 541 U.S. at 68, 124 S.Ct. 1354. “Only [testimonial statements] cause the declarant to be a ‘witness' within the meaning of the Confrontation Clause.” Davis v. Washington, 547 U.S. 813, 821, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006). “It is the testimonial character of the statement that separates it from other hearsay that, while subject to traditional limitations upon hearsay evidence, is not subject to the Confrontation Clause.” Id.

Id. at 520. The state concedes that Joseph's statements at the bond hearing were testimonial, and we find no reason to question this concession. Therefore, the relevant inquiry regarding Joseph's bond hearing testimony is whether the state proved Joseph's unavailability and whether Petit had an opportunity for cross-examination.

“The trial court's determination that a witness is ‘unavailable’ for confrontation purposes involves a mixed question of law and fact which this court reviews de novo, giving deference to the basic, primary or historical facts as found by the trial court.” Essex v. State, 958 So.2d 431, 432 (Fla. 4th DCA 2007) (citation and quotation marks omitted). Further, whether the bond hearing provided an opportunity for cross-examination for Confrontation Clause purposes is a purely legal question and should therefore be reviewed by this court de novo. See, e.g., Cromartie v. State, 70 So.3d 559, 563 (Fla.2011) (“The issue in this case is a pure question of law and therefore the standard of review is de novo.”).

As to the required analysis concerning unavailability in the instant case, the facts are uncontested. We must determine whether these facts could permit the trial court to find that the declarant, Joseph, was unavailable for Crawford purposes.

An investigator for the state attorney's office testified that he was the individual responsible for locating Joseph. The investigator testified first about his interaction with Joseph back in March of 2009, approximately six months before Petit's trial. The investigator testified that Joseph was “scared to death” of testifying because he had been shot several times because of just becoming involved with the police and he felt that testifying would be even worse.” According to the investigator, Joseph did not cooperate or agree to come to court. He said that he reached out to Joseph's wife to try to locate Joseph the day before the trial. The investigator said that Joseph's wife put Joseph on the phone at one point. Joseph told the investigator he was still frightened of testifying, that he thought this case was over because of a co-defendant's trial, and that he lost his vision and had trouble walking as a result of being shot. Joseph said he was not living with his wife but was living with different relatives and friends to keep his location unknown. The investigator said that Joseph refused to testify and never disclosed his location. The investigator also said that it was “impossible” to find Joseph and that he “may be in deep hiding.” The investigator further testified that he served a subpoena on Joseph via his attorney back in March for a co-defendant's trial and Joseph did not appear to testify.

On appeal, Petit argues that an individual can only be considered “unavailable” for Confrontation Clause purposes if he fits into any of the categories in section 90.804(1), Florida Statutes (2007). Section 90.804, however, defines “unavailability” of the declarant for the purpose of the hearsay exceptions. But the Florida Supreme Court has defined unavailability for Confrontation Clause purposes much more broadly than section 90.804(1): “In order for a witness to be unavailable for confrontation purposes, the State must make a good faith showing of attempting to secure the witness. This includes going to reasonable lengths to procure the witness.” State v. Johnson, 982 So.2d 672, 681 (Fla.2008) (emphasis added). Therefore, the only requirement here is that the state made a good faith effort to procure Joseph as a witness for the instant trial.

From the investigator's testimony, we find that the trial court did not err in determining that the state made a good faith effort to locate Joseph for the trial. Therefore, the trial court, based on the particular facts of this case, correctly determined that Joseph was unavailable for the trial.

The remaining issue is whether the bond hearing at which Joseph testified provided Petit an opportunity for cross-examination. Petit argues that a bond hearing does not provide a meaningful opportunity for cross-examination as contemplated by the United States Supreme Court in Crawford. Specifically, Petit characterizes the Crawford holding as forbidding the admission of former testimony if “the former testimony is [not] obtained during a judicial procedure that is similar in motive to the trial.” However, this is a mischaracterization of the holding in Crawford. The Supreme Court has stated the cross-examination requirement in very general terms: “Our cases have thus remained faithful to the Framers' understanding: Testimonial statements of witnesses absent from trial have been admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine.” Crawford, 541 U.S. at 59, 124 S.Ct. 1354.Crawford does not require similarity of motive in the previous judicial proceeding or mention a “meaningful” opportunity for...

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    • Florida District Court of Appeals
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    ...Hyden Constr., Inc., 766 So.2d 1238, 1239 (Fla. 1st DCA 2000). Pure questions of law are subject to a de novo review. Petit v. State, 92 So.3d 906, 910 (Fla. 4th DCA 2012). Before discussing our analysis regarding interpretation of the contract, it is useful to discuss a unique aspect of de......
  • Mortimer v. State
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    • Florida District Court of Appeals
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    ...that the error complained of has resulted in a miscarriage of justice. This section shall be liberally construed. 5. In Petit v. State, 92 So.3d 906 (Fla. 4th DCA 2012), involving the trial of a codefendant, we held that the admission of the 911 calls and Joseph's testimony from the bond he......
  • Moscatiello v. State, 4D15–3695
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    • Florida District Court of Appeals
    • 6 June 2018
    ...Florida Statutes (2013). Moscatiello concedes that testimony at a bond hearing may qualify as former testimony. See Petit v. State , 92 So.3d 906, 912–13 (Fla. 4th DCA 2012) ; Roussonicolos v. State , 59 So.3d 238, 241–43 (Fla. 4th DCA 2011). However, he claims that he did not have the same......
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    • Florida District Court of Appeals
    • 19 March 2014
    ...Constr., Inc., 766 So. 2d 1238, 1239 (Fla. 1st DCA 2000). Pure questions of law are subject to a de novo review. Petit v. State, 92 So. 3d 906, 910 (Fla. 4th DCA 2012). Before discussing our analysis regarding interpretation of the contract, it is useful to discuss a unique aspect of design......
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1 books & journal articles
  • Evidence
    • United States
    • James Publishing Practical Law Books The Florida Criminal Cases Notebook. Volume 1-2 Volume 2
    • 30 April 2021
    ...meet the ongoing emergency. (See this case for extensive discussion of 911 calls and their admissibility under Crawford.) Petit v. State, 92 So. 3d 906 (Fla. 4th DCA 2012) A prior inconsistent statement is not hearsay because it is not introduced for the truth of the matter asserted, but is......

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