Rogers v. State, 76456

• Decision Date: 11 May 1995
• Docket Number: No. 76456,76456
• Citation: 660 So.2d 237
• Parties: 20 Fla. L. Weekly S233 Stanley Ray ROGERS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 237

660 So.2d 237

20 Fla. L. Weekly S233

Stanley Ray ROGERS, Appellant, v. STATE of Florida, Appellee.

No. 76456.

Supreme Court of Florida.

May 11, 1995.

Rehearing Denied Sept. 11, 1995.

Richard L. Jorandby, Public Defender and Jeffrey L. Anderson, Asst. Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Atty. Gen. and Celia A. Terenzio, Asst. Atty. Gen., West Palm Beach, for appellee.

PER CURIAM.

Stanley Ray Rogers, a prisoner under sentence of death, appeals his conviction of first-degree murder and the penalty imposed. He also appeals his convictions and sentences for two counts of kidnapping and one count of attempted sexual battery. We have jurisdiction based on article V, section 3(b)(1) of the Florida Constitution.

Rogers was convicted of fatally shooting Mark Hastings, a man who agreed to give him a ride home from a nightclub. Because we find a lack of evidence to support a first-degree murder conviction, we reverse Rogers' conviction and remand with directions that the trial court enter a judgment of guilty of second-degree murder and resentence Rogers. In addition, we reverse Rogers' convictions and sentences for attempted sexual battery and kidnapping.

The jury convicted Rogers of first-degree premeditated murder and first-degree felony murder, then recommended death by a vote of ten to two. The trial judge followed the jury's recommendation and sentenced Rogers to death. In imposing the death penalty, the trial judge found three aggravating factors: (1) the murder was committed by someone under a sentence of imprisonment; (2) Rogers was previously convicted of another capital felony or a felony involving the use or threat of violence to the person; and (3) Rogers committed the murder while engaged in the commission of certain enumerated felonies. Secs. 921.141(5)(a), 921.141(5)(b), 921.141(5)(d), Fla.Stat. (1989). The trial judge found no statutory or nonstatutory mitigating factors.

Rene Daniel met Mark Hastings at a club on April 2, 1989, while she was attending a going-away party with friends. Daniel stayed at the club after her friends left and talked to Hastings. The two walked to Daniel's car at about 12:30 a.m. While the two talked in the parking lot, a man, later identified as Rogers, approached them and asked for a flashlight. Although neither Daniel nor Hastings had a flashlight, Hastings suggested that the man ask the club's bouncer for one. Instead, Rogers went to his car, which he had been trying to start. Rogers later returned to Daniel and Hastings and asked for a ride to his home about a half-mile away. Daniel and Hastings agreed to give him a ride. Although it was Daniel's car, Hastings drove. Daniel sat in the passenger seat and Rogers rode in the back seat.

Daniel testified that she turned around as they drove and saw Rogers holding a gun to the back of Hastings' head. Rogers then told Daniel to take off her clothes, but she refused. Rogers later reached over the seat and squeezed her left breast. Daniel testified that she said, "Please--please don't do that," and Rogers stopped.

Later in the drive, Daniel said Hastings slowed the car down, turned into a convenience store parking lot, and turned around. Rogers then told Hastings to take the next right, but Hastings drove by the street. Rogers told him to take the next right turn or he would pull the trigger. Hastings did not turn. Daniel said she turned around and saw that Hastings had pinned Rogers against the back of the seat. Daniel testified that Hastings told her to get out of the car and run. She heard a horn, then a gunshot as she fled.

She ran to a nearby apartment, where two women opened the door and let her use the phone to call police. Sheriff's deputies tracked footprints and found Rogers underneath a tree. Rogers had a gun in his pocket with two live rounds and one spent round. Daniel identified Rogers as the man who had been riding in her car.

Witnesses found Hastings slumped over the steering wheel. He had been shot once in the head from a distance of at least twelve to fifteen inches. He died in the hospital on the night of April 3, 1989.

Rogers testified that he drank during the day of April 2, then went to the club. He got a ride home to pick up a car he had recently purchased for $100, but when he returned to the club, the engine cut out and the car would not start. Rogers said he worked on the car, then asked Daniel and Hastings for a flashlight. They did not have one, and he still could not start his car. He decided to leave the car, but took a gun from the glove compartment so he would not have to leave the weapon with his vehicle.

Rogers testified that he offered Hastings cocaine in exchange for a ride home, and Hastings later became angry because he did not have the cocaine. He denied touching Daniel's breast during the ride. When Hastings refused to make a right turn, Rogers told him, "[L]ook I've got a gun, let me out of this damn car." Hastings did not appear to believe Rogers, so Rogers said he tapped him on the shoulder with the weapon. Rogers said he pulled the gun because he was scared. Hastings began to slow down, but did not stop the car completely. Rogers said he tried to get out of the car, but Hastings turned around and grabbed his hand. He pinned Rogers, and the two struggled with the gun. Rogers pushed Hastings away, and the gun fired. He testified that "I felt I was fighting for my life and the--the gun went off accidentally."

Rogers raises twenty-eight issues on this direct appeal. ¹ Because we reverse Rogers' first-degree murder conviction, the penalty-phase issues are rendered moot and we discuss only the guilt-phase issues.

When Daniel ran from the car, she went immediately to a nearby apartment. She banged on the door, and the two women who lived there let her use the phone to call police. One of the women, Laura Dunne, was allowed to testify to statements Daniel made after she placed the telephone call. Those statements described the events at the club and in the car. Rogers contends that it was error to admit this testimony because it was hearsay and not admissible as an excited utterance. We disagree.

An excited utterance is defined as "[a] statement or excited utterance relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." Sec. 90.803(2), Fla.Stat. (1989). An excited utterance is admissible as an exception to the hearsay rule because the declarant does not have the reflective capacity necessary for conscious misrepresentation. Thus, statements made by someone who is excited are spontaneous and have sufficient guarantees of truthfulness. See Charles W. Ehrhardt, Florida Evidence Sec. 803.2 (1994 ed.).

A statement qualifies for admission as an excited utterance when (1) there is an event startling enough to cause nervous excitement; (2) the statement was made before there was time for reflection; and (3) the statement was made while the person was under the stress of the excitement from the startling event. State v. Jano, 524 So.2d 660, 661 (Fla.1988).

That a startling event occurred here is beyond question. The real questions are whether Daniel had time for reflection and whether she made her statement while still excited from the startling event.

The test regarding the time elapsed is not a bright-line rule of hours or minutes. Instead, " 'where the time interval between the event and the statement is long enough to permit reflective thought, the statement will be excluded in the absence of some proof that the declarant did not in fact engage in a reflective thought process.' " Id. at 662 (quoting Edward W. Cleary, McCormick on Evidence Sec. 297 at 856 (3d ed.1984)).

Dunne estimated that approximately eight to ten minutes passed between the time Daniel came to her door and the police cars arrived. Although there conceivably was time for Daniel to engage in reflective thought, the record indicates that Daniel did not engage in any reflection. Dunne testified that Daniel was hysterical when she arrived at her apartment. After Daniel called the police, she collapsed. Dunne and her roommate helped Daniel up, gave her a soda, and asked what happened. Dunne said that Daniel paced and remained very excited as she recounted the events. At no point, Dunne said, did Daniel ever appear relaxed or calm as she recounted the evening's events.

Daniel made her statements while she was still under the effects of the evening's events. Thus, her statements to Dunne qualify for admission as an exception to the hearsay rule. Compare Hamilton v. State, 547 So.2d 630, 633 (Fla.1989) (statement not admissible under the excited utterance exception where declarant had two and one-half hours at a shooting scene to overhear deputies, investigators, and others).

Rogers also contends that the trial court erred in denying his motions for judgment of acquittal on charges of attempted sexual battery, kidnapping, and premeditated murder. We agree.

Daniel testified that as she and Hastings drove with Rogers, Rogers ordered her to take off her clothes. When she refused, Rogers asked Hastings to make her take off her clothes. Hastings said he could not do that. According to Daniel's testimony, Rogers then squeezed her left breast. He stopped when she said, "Please--please don't do that," and made no further attempts to touch her. Rogers denied ordering Daniel to undress or touching her.

A trial judge should not grant a motion for judgment of acquittal unless "there is no view of the evidence which the jury might take favorable to the opposite party that can be sustained under the law." Taylor v. State, 583 So.2d 323, 328 (Fla.1991); see also Lynch v. State, 293 So.2d 44, 45-46 (1974). In this case, the facts do not support a conviction of attempted sexual battery--even assuming that Daniel's testimony is true....