Schluck v. State

• Decision Date: 03 November 2021
• Docket Number: No. 1D19-3724,1D19-3724
• Citation: 329 So.3d 231
• Parties: Andrew M. SCHLUCK, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

329 So.3d 231

Andrew M. SCHLUCK, Appellant,

v.STATE of Florida, Appellee.

No. 1D19-3724

District Court of Appeal of Florida, First District.

November 3, 2021

Candice K. Brower, Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, Region One, Gainesville, and Melissa Joy Ford, Assistant Regional Conflict Counsel, Office of Criminal Conflict and Civil Regional Counsel, Region One, Tallahassee, for Appellant.

Ashley Moody, Attorney General, and Robert "Charlie" Lee, Assistant Attorney General, Tallahassee, for Appellee.

Winokur, J.

Andrew M. Schluck appeals his judgment and sentence for burglary and sexual battery. He contends that the trial court erred in four respects: (1) it improperly admitted a recording of the victim's statement that she thought she had been raped in her dorm room the previous night; (2) it did not allow Schluck to represent himself or conduct a Faretta¹ hearing after he requested to do so; (3) it imposed conditions of sexual-offender probation that were not related to the crime; and (4) it did not hold a competency hearing or enter an order of competency after there were reasonable grounds to believe that Schluck may not have been competent to proceed. We agree that the court improperly admitted a recording of the victim and reverse for new trial.

I

Schluck was charged with burglary of an occupied dwelling with assault or battery and sexual battery upon a victim physically helpless to resist. The record contains the following evidence: The nineteen-year-old victim and her friend had met Schluck as they walked back to the victim's dorm after a night of drinking. Surveillance video showed the three entering the building at 3:28 a.m. The women went into the victim's dorm room alone, but the victim's friend saw Schluck standing in the hallway when she left a few minutes later. Surveillance video showed Schluck leaving the building at 7:14 the next morning. At 7:44 a.m. and after speaking to her roommate, who advised her to gather her clothing and call the police, the victim called the university police administrative line and reported, "I think that I was ... raped last night."² She stated that it had happened in her dorm. The recording was played for the jury over Schluck's hearsay objection, and the victim did not testify.³ The jury found Schluck guilty of burglary of an occupied dwelling with battery and of sexual battery, a lesser-included offense of sexual battery upon a victim physically helpless to resist.

Schluck contends that the trial court erred in admitting the victim's statements to university police because they were hearsay and did not qualify as excited utterances.⁴ We review for abuse of discretion. See Alston v. State , 723 So. 2d 148, 156 (Fla. 1998).

II

A

We first address whether Schluck preserved for appeal his argument that the recording did not constitute an excited utterance and therefore did not fall under the hearsay exception set forth in section 90.803(2), Florida Statutes. Prior to trial, Schluck's counsel objected to the State's planned introduction of the recording, in part on the ground that it constituted hearsay. The prosecutor indicated that she intended to authenticate the recording with testimony from an "IT person" with the university police, and testimony from a friend of the victim who could authenticate the victim's voice, and added that the State would also establish that the victim "was upset at the time of the call." The court overruled Schluck's objection without further comment. Before the recording was admitted at trial, Schluck's counsel "renew[ed the] objection on the grounds of hearsay." Without asking the State for a response, the court overruled the objection without further comment. After trial, Schluck moved for new trial, in part on the ground that the admission of the recording violated his right to confrontation. The State disagreed and for the first time explicitly claimed that an exception to the hearsay rule applied, arguing that it constituted an excited utterance. Schluck replied, denying that the hearsay statements constituted an excited utterance. After hearing, the court denied the motion for new trial.

Under these circumstances, the issue is preserved for appeal even though Schluck never argued that the statement did not constitute an excited utterance until replying to the State's claim in its response to the motion for new trial that the exception applied. "A ‘hearsay’ objection need not specify the hearsay exception the objecting party will address on appeal." State v. Crofoot , 97 So. 3d 866, 868 (Fla. 1st DCA 2012) (holding that the appellant's "hearsay objection preserved its argument on appeal that the ‘statement against interest’ exception does not apply to the statements at issue"); see also Neeley v. State , 883 So. 2d 861, 864 (Fla. 1st DCA 2004) (holding that a general hearsay objection preserved the issue of whether a statement qualified as a hearsay exception because "[w]hen a party makes a hearsay objection, a trial court must consider all possible hearsay violations, exceptions, and exclusions"). When a party objects to admission of evidence because it is hearsay, the objection is generally sufficient to preserve the issue, even if the proponent of the testimony claims on appeal (or in response to a motion for new trial) that a hearsay exception applies.⁵ In this case, we find that Schluck properly alerted the trial court to his claim that the statement constituted hearsay and was not required also to argue that an exception did not apply in order to preserve this argument for review.

B

The dissent contends that the recording was actually admitted under the "public records and reports" exception to hearsay contained in section 90.803(8), Florida Statutes, rather than the excited-utterance exception. Because Schluck did not address this exception, the dissent argues that Schluck has failed to present an argument supporting reversal. We find that the State never sought admission of the statements under the public-records exception, and as such, Schluck's failure to address it is immaterial.

First, we disagree that the public-records exception was ever raised in the pretrial hearing. During that hearing, the prosecutor indicated that she would introduce the testimony of the person who operates the system that records calls made to the university police. Schluck's counsel responded that he was unaware that the State intended to introduce a call from the victim to police, and objected to its admission on the ground that it constituted a discovery violation and that it was hearsay. The State indicated that it had given a copy of the recording to Schluck when he was pro se. The following exchange then occurred:

THE COURT: Okay. Well, you have somebody that's going to authenticate it as a public record?

[PROSECUTOR]: Yeah. The IT person will authenticate it as the audio recording from the system. And then I will have a friend who will authenticate her voice.

THE COURT: Okay.

[PROSECUTOR]: As well as the fact that she was upset at the time of the call.

THE COURT: Okay. Overruled.

The entire exchange shows that the prosecutor and the court were primarily discussing authentication of the recording under section 90.901, Florida Statutes, not attempting to support admissibility of hearsay by resort to the "public records and reports" exception to the hearsay rule.⁶ The State indicated that it planned to introduce testimony of a person with knowledge of the university police call system, as well as that of a person who could authenticate the victim's voice. See , e.g. , D.D.B. v. State , 109 So. 3d 1184, 1185 (Fla. 2d DCA 2013) (holding that a 911 call recording was not properly authenticated and noting that "identification of D.D.B.'s voice on the recording is helpful to the State's case, but authentication would also require other predicate evidence, including that the recording was of a telephone call received and handled by the 911 system on the relevant date."). As for hearsay, the prosecutor indicated that she planned to introduce testimony that the victim was upset at the time of the call. This suggests that the State planned to seek admission under the excited-utterance exception to hearsay.⁷ We further note, contrary to the claim of the dissent, that the State never indicated that it sought admission under the "public records and reports" exception. Only the judge uttered the phrase "public record," and as indicated above, was referring to authentication, not to a basis for admission of hearsay.⁸

Second, we note that the proceedings following this hearing indicated that the recording had been admitted under the excited-utterance exception. No mention of the public-record exception was made at trial. At the motion for new trial hearing, the prosecutor argued that the evidence was admissible as an excited utterance. And in this appeal, the State never argues that the evidence fell under the public-record exception to the hearsay rule.

Third, our conclusion is bolstered by the fact that the public-record exception plainly does not apply. "Records that rely on information supplied by outside sources ... are inadmissible under [the public-record exception]." Lee v. Dep't of Health & Rehab. Servs. , 698 So. 2d 1194, 1201 (Fla. 1997) (citation omitted). "In Florida, rather than offering this type of record, a witness must be called who has personal knowledge of the facts." Id. See also Reichenberg v. Davis , 846 So. 2d 1233, 1234 (Fla. 5th DCA 2003) (holding that reports where "the authors simply related the substance of what the witnesses had told the authors" are not admissible under the public-records exception to the hearsay rule "because they were not based upon the personal knowledge of an agent of the ‘business.’ "). "To be admissible under these circumstances, the hearsay statements made to the authors must themselves fall within an exception to the hearsay rule." Id. (citing § 90.805, Fla. Stat.). We...