Preston v. State
| Decision Date | 12 June 1985 |
| Docket Number | No. 84-2018,84-2018 |
| Citation | 10 Fla. L. Weekly 1489,470 So.2d 836 |
| Parties | 10 Fla. L. Weekly 1489 John PRESTON, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Douglas A. Wallace, Bradenton, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Karla J. Staker, Asst. Atty. Gen., Tampa, for appellee.
A jury found appellant guilty of the crime of sexual battery. Because we find the trial court erred in admitting prejudicial hearsay testimony, we reverse and remand for a new trial.
In the afternoon of September 10, 1983, the prosecutrix and her boyfriend went to a restaurant in Bradenton for dinner. After dinner and several drinks, the couple went to another restaurant and bar located below the radio station where the boyfriend was employed. The boyfriend left the prosecutrix in the bar to wait until he completed certain work in the radio station. While waiting, she met appellant and they conversed over several drinks. The prosecutrix left the bar two or three times to look for her boyfriend. They apparently "missed connections" so she accepted appellant's offer to take her home. On the way, they stopped at the Elks Club, where more drinks were consumed. They remained there until the club closed. Although the testimony is somewhat conflicting, it appears that appellant and the prosecutrix left the club some time between 1:00 and 1:45 a.m. Appellant did not remember leaving the club or any events that happened later that evening. The prosecutrix claimed that after they left the club in appellant's van, he forced her to perform oral sex upon him. When the van stopped at a traffic light or stop sign, she jumped out and ran to the nearest house, where she reported the offense to the occupants who then called the police. 1 Shortly after 2:00 a.m., an officer arrived to investigate the report. During this investigation, the prosecutrix told the officer about the alleged offense. Later, around 3:00 a.m., the officer took the prosecutrix to her home, which she shared with her boyfriend. She then told the boyfriend what had happened.
Both the officer and the boyfriend described the prosecutrix as "nervous" and "upset" when she told them of the offense. The officer also testified that she appeared "very intoxicated." The testimony of the investigating officer and the boyfriend corroborated the prosecutrix' testimony at trial.
Over defense objection, the trial court permitted the investigating officer and the prosecutrix' boyfriend to recount the prosecutrix' prior consistent statements concerning the details of the alleged offense. This testimony was clearly hearsay. § 90.801(1)(c), Fla.Stat. (1983). While section 90.801(2)(b), Florida Statutes (1983), provides that a prior consistent statement is not objectionable if it is offered to rebut an express or implied charge of improper influence, motive, or recent fabrication, the statement must have been made "prior to the existence of a fact said to indicate bias, interest, corruption, or other motive to falsify." Kellam v. Thomas, 287 So.2d 733, 734 (Fla. 4th DCA 1974) (emphasis added). See also McElveen v. State, 415 So.2d 746, 748 (Fla. 1st DCA 1982). Here, the prosecutrix' statements to the investigating officer and her boyfriend were made after the existence, if any, of a reason to falsify, i.e., merrymaking for several hours with another man and arriving home around three o'clock in the morning, intoxicated and disheveled.
Further, neither testimony was admissible under the spontaneous statement and excited utterance exceptions to the hearsay rule. §§ 90.803(1) and (2), Fla.Stat. (1983). In order for those exceptions to apply:
There must be some occurrence startling enough to produce nervous excitement and render the utterance spontaneous and unreflecting. The...
To continue reading
Request your trial
-
Carroll v. State
...of prior consistent statements made before the existence of the facts said to indicate the improper influence. See Preston v. State, 470 So.2d 836 (Fla. 2d DCA 1985); McElveen, 415 So.2d at 748. See also Wilson v. State, 434 So.2d 59 (Fla. 1st DCA 1983); Kellam, 287 So.2d at 734. In the pre......
-
Roop v. State
...interest, corruption, or other motive to falsify.’ " Ortuno v. State, 54 So.3d 1086, 1088 (Fla. 1st DCA 2011) (quoting Preston v. State, 470 So.2d 836, 837 (Fla. 2d DCA 1985) ). Because Yeater made his statement to 911 identifying Roop as the perpetrator after Yeater had developed his disli......
-
Lazarowicz v. State, 86-1457
...existence of the facts said to indicate an improper influence. See Bianchi v. State, 528 So.2d 1309 (Fla. 2d DCA 1988); Preston v. State, 470 So.2d 836 (Fla. 2d DCA 1985); McElveen v. State, 415 So.2d 746 (Fla. 1st DCA 1982); see also Jackson v. State, 498 So.2d 906 (Fla.1986); Brown v. Sta......
-
Jenkins v. State
...was critical in establishing appellant's presence in her home and, therefore, her credibility was crucial. Bianchi; Preston v. State, 470 So.2d 836 (Fla. 2d DCA 1985); McRae v. State, 383 So.2d 289 (Fla. 2d DCA 1980). Essentially, this case centers on the victim's word against appellant's a......