Roop v. State
| Decision Date | 04 October 2017 |
| Docket Number | Case No. 2D15–1573 |
| Citation | 228 So.3d 633 |
| Parties | Devin Gregory ROOP, DOC #C06445, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Devin Gregory ROOP, DOC #C06445, Appellant,
v.
STATE of Florida, Appellee.
Case No. 2D15–1573
District Court of Appeal of Florida, Second District.
Opinion filed October 4, 2017.
Anthony M. Candela of Candela Law Firm, Riverview, for Appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Cornelius C. Demps, Assistant Attorney General, Tampa, for Appellee.
SALARIO Judge.
Devin Gregory Roop appeals his convictions and sentences for throwing a deadly missile at an occupied vehicle, see § 790.19, Fla. Stat. (2013), and criminal mischief ($200 or less), see § 806.13(1)(b)(1), Fla. Stat. (2013). We affirm in all respects. We write only to address Mr. Roop's argument that the trial court erroneously admitted at trial that portion of a recording of a 911 call placed by the victim, Frank Yeater, during which Mr. Yeater identified Mr. Roop as the perpetrator. Mr. Roop contends that Mr. Yeater's statement on the recording was inadmissible hearsay. The trial court admitted the statement based on the State's contention that the spontaneous statement and excited utterance exceptions to the hearsay rule applied. See § 90.803(1), (2), Fla. Stat. (2014). We find no abuse of discretion in the trial court's admission of Mr. Yeater's statement of identification under the excited utterance exception and further conclude that the admission of that statement, even if error, was harmless under the facts of this case.
I.
Someone threw a metal pipe at Mr. Yeater's truck as he was driving along a stretch of road in Lake Wales. Mr. Yeater said that someone was Mr. Roop. Mr. Roop's stepfather, however, said that Mr. Roop had been at his house all day on the day in question. The jury believed Mr. Yeater and convicted Mr. Roop.
At the time of the incident, Mr. Yeater had known Mr. Roop for well over a decade. They had grown up in the same neighborhood and gone to the same school, and they used to be friends. Over time, the friendship fizzled and the relationship turned sour. The two men spoke disrespectfully to one another, and Mr. Yeater felt insulted by Mr. Roop. On New Year's Eve 2013, there was an incident between Mr. Yeater and Mr. Roop's stepbrother. Mr. Roop was there when it happened. The police were called to the scene of the incident, but no one was charged with any offenses.
Five days later—around noon on January 5, 2014—Mr. Yeater was driving his truck down a two-lane country road. He noticed a black car approaching him from behind at a quick pace. The car moved to pass Mr. Yeater's truck in the opposite lane. According to Mr. Yeater, Mr. Roop leaned out of the car's rear passenger window and threw something at Mr. Yeater's truck. Mr. Roop knew that the truck was Mr. Yeater's because he had seen him driving it before. The object struck the driver's side door near the handle, missing Mr. Yeater but damaging the truck.
Seconds later, Mr. Yeater turned around, returned to where the incident
occurred, and called 911 from his mobile phone. About two minutes passed between the incident and the 911 call. After confirming his location, Mr. Yeater told the 911 operator that he had been driving down the road when Mr. Roop passed his car and threw something at the truck. He stayed on the phone with the operator, searched for whatever had hit his truck, and narrated his search to the 911 operator. The search led to the discovery of a metal pipe. A sheriff's deputy was sent to the scene, took photographs of the damage to Mr. Yeater's truck, and recovered the pipe. Law enforcement was unable to recover fingerprints from the pipe. The State charged Mr. Roop with throwing a deadly missile and criminal mischief.
The case proceeded to trial. After the jury was selected, but before any evidence was presented, the trial court heard a motion the State filed earlier that day seeking a ruling on the admissibility of a recording of Mr. Yeater's call to 911, including his statement on that call that Mr. Roop was his assailant. Without objection from either side, the motion was presented to the trial court based on the parties' statements of what the evidence would show and a recording of the 911 call. The State proffered that Mr. Yeater would testify that a couple of minutes after the pipe was thrown at the car, Mr. Yeater pulled over to the side of the road, called 911, and identified Mr. Roop as the perpetrator and argued that Mr. Yeater was excited at the time of the 911 call even though he might seem calm on the recording. It argued and requested a determination that Mr. Yeater's identification of Mr. Roop was admissible as either an excited utterance or a spontaneous statement. Mr. Roop's counsel stated that Mr. Yeater testified at deposition that he was initially going to "forget about it," but then decided to turn around because he was concerned that "something further might happen" with Mr. Roop and he wanted to "put it on the record." He argued that this showed that Mr. Yeater was not under the stress of the excitement caused by the event when he called 911 such that the excited utterance exception would apply and further that the lapse of time before calling 911 also prevented the spontaneous statement exception from applying. The trial court then listened to the full recording of the 911 call and thereafter ruled that a redacted recording, which included Mr. Yeater's identification of Mr. Roop as the perpetrator, would be admissible.1
Mr. Yeater was the State's first witness at trial. He related the facts of the offense, including his identification of Mr. Roop as the perpetrator and his discovery of the metal pipe, just as described above. After he described what happened, the State asked Mr. Yeater about his call to 911, and the following exchange occurred:
THE STATE: Did the black car that was containing Mr. Roop pull over on the side of the road after this?
MR. YEATER: No. It continued even quicker to get away.
THE STATE: Okay. Did you pull over on the side of the road?
MR. YEATER: At first I continued to keep on going, and then I decided to turn around and—to go grab—see whatever it was, and then go pick it up.
THE STATE: Did you call 911?
MR. YEATER: Yes.
THE STATE: About how long after this incident occurred did you call 911?
MR. YEATER: Two minutes.
THE STATE: Are you approximating two minutes?
MR. YEATER: Yes, it was approximately two minutes.
THE STATE: Okay. Are you scared at this point?
MR. YEATER: Yes. I was scared at that point.
THE STATE: Feeling any other emotions.
MR. YEATER: Yes, I was frightened, I didn't know what—I didn't know what his intentions were to do.
The trial court thereafter excused the jury so that it could listen to the redacted recording the State had prepared in accord with its earlier instructions. After listening to the recording, the trial court asked the parties for comment. Although Mr. Roop renewed his objections to the admission of the recording, he did not seek to voir dire Mr. Yeater about the circumstances surrounding the 911 call or to present other evidence bearing on the admissibility of Mr. Yeater's statements to 911 as excited utterances or spontaneous statements. The redacted recording was admitted over Mr. Roop's renewed objection, and the jury heard Mr. Yeater's identification of Mr. Roop as his assailant and his narration of his search of the object that struck his truck.
On the cross-examination that followed, Mr. Yeater stated that, after his truck was hit by the pipe, he initially intended to continue driving but decided seconds later to turn around. On redirect, Mr. Yeater stated that he "was just going to let it go" at first but then had decided to call the police "[b]ecause after initially thinking of who it was, I knew this wasn't going to be a—it wasn't going to stop with Devin Roop." No additional objection was raised based on this testimony.
After the State rested, Mr. Roop called his stepfather, Russell Brown, Sr. Mr. Brown has known Mr. Roop since he was born and considers him a son. His biological son is the stepbrother of Mr. Roop and was involved in the incident with Mr. Yeater five days before the pipe was thrown at his car. Mr. Brown testified that on the day of the incident, Mr. Roop had been at his residence all day to celebrate the birthday of Mr. Roop's mother.
On cross-examination, Mr. Brown admitted that until he was subpoenaed by the State toward the end of 2014, he had not mentioned to anyone that Mr. Roop had been with him that day. He also admitted that he knew before then that Mr. Roop was being prosecuted for throwing a pipe at Mr. Yeater's truck. He initially said he had not mentioned anything about Mr. Roop's alibi because he was "try [ing] not to get into none of that." Later, however, he stated that he did not say anything because he had not realized that the incident with Mr. Yeater happened on the same day as the celebration at his house. Mr. Brown testified, without objection, that although he discussed this prosecution with Mr. Roop, Mr. Roop never told him that the incident happened on the same day he spent at Mr. Brown's house. Mr. Roop did not testify.
The jury found Mr. Roop guilty on both counts. After denying Mr. Roop's motion for new trial, the trial court sentenced him to concurrent terms of fifteen years' imprisonment as a prison releasee reoffender on the count for...
To continue reading
Request your trial