Smelley v. State, BH-376

• Decision Date: 30 December 1986
• Docket Number: No. BH-376,BH-376
• Parties: 12 Fla. L. Weekly 114 Terry Edward SMELLEY, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 318

500 So.2d 318

12 Fla. L. Weekly 114

Terry Edward SMELLEY, Appellant, v. STATE of Florida, Appellee.

No. BH-376.

District Court of Appeal of Florida,

First District.

Dec. 30, 1986.

John C. Harrison, P.A., Shalimar, for appellant.

Jim Smith, Atty. Gen. and John M. Koenig, Jr., Asst. Atty. Gen., Tallahassee, for appellee.

JOANOS, Judge.

Appellant Terry Edward Smelley appeals from a judgment of conviction and sentence imposed following a jury trial and guilty verdict for the offense of robbery with a weapon. Appellant raises four points for our review: (1) the denial of his motion for mistrial and motion to strike the venire, (2) the admission of prior consistent testimony to bolster the credibility of the victim, (3) the scoring of points for victim injury in computing the presumptive guidelines sentence, and (4) the scoring of certain prior offenses without corroborative evidence in computing the presumptive guidelines sentence. We affirm in part and reverse in part.

On October 26, 1984, the state filed an information charging that on October 16, 1984, appellant, while armed with a knife robbed an employee of a beer and wine bar of the day's receipts. Appellant was known to the employee, Mona Turner, as a regular customer of the bar. Ms. Turner had closed the bar for the day and had the day's receipts in a money bag. Appellant then approached and told her to go over to her car. When a car came by, Ms. Turner broke away and ran into the highway. Appellant pursued her and grabbed the money bag in her hand. When Ms. Turner did not release the bag, appellant allegedly cut her on the arm with what Ms. Turner thought was a knife. Appellant then took the money bag and ran. Meanwhile, the car which had traveled past Ms. Turner, stopped, and the driver, Cheryl Curtis, transported Ms. Turner to the police department.

Prior to jury selection, appellant's counsel requested the trial court to instruct the witnesses that no mention should be made of a prior violation of probation hearing. The trial court and the state attorney agreed. Then, during voir dire, as the state attorney orally listed the persons who might be called as witnesses in the trial, he said:

I think most of you heard the list of people that the state might call as witnesses in the case, but let me review them again. There were a couple left out who weren't here. Dale Griffin and Larry Bolin and Glen Barbaree are deputy sheriffs with the Okaloosa County Sheriff's Department. Mona Turner is the alleged victim in the case, an employee of Roger's Roost back in October. Cheryl Curtis is also a resident of Crestview. Marvin Bass is a Crestview policeman. Mike Hollinghead is an investigator with our office. Paul Dorcas is with the Florida Department of Law Enforcement, and there's a Daniel Robert Davis that both the state and defense have subpoenaed. I don't know that he'll be called, but in addition, Robert Bradley with the probation--

At that point, defense counsel asked to approach the bench where he moved the trial court to strike the entire venire based on the prosecutor's comment. The motion was denied, and voir dire proceeded.

At trial, the victim, Mona Turner, in response to the prosecutor's question, stated that the cut she received in the course of the robbery was not severe, and that it had healed in a matter of days. The state's second witness was Cheryl Curtis, the person who picked up the victim as she attempted to elude the robber. The prosecutor asked Ms. Curtis whether the victim had told her what happened. Defense counsel objected on the ground that the state was attempting to bolster the victim's credibility by prior consistent statements. The prosecutor's response was that Ms. Curtis was the first person the victim saw after the crime was committed. The defense objection was overruled, and Ms. Curtis was permitted to testify concerning the victim's statement. The defense's next objection pertained to the testimony of a deputy sheriff, who was also asked whether the victim had told him how she had been cut on the forearm. The deputy's testimony was also admitted.

At the close of the state's case, appellant's counsel moved for judgment of acquittal. The motion was denied, and the jury returned a verdict finding appellant guilty of robbery with a weapon. Subsequently, appellant's motion for new trial, was also denied.

After preparation of the guidelines scoresheet, appellant's counsel wrote to the trial court advising that appellant excepted to points which had been scored in two categories. Specifically, appellant disputed points scored for two escapes and the points scored for victim injury. At the sentencing proceedings, defense counsel pointed out that appellant had no recollection of the disputed prior convictions for the alleged escapes. In response to the defense sentencing memorandum, the prosecutor stated appellant had been given the opportunity to refute the statements in the Presentence Investigation report (which had been relied upon for the guidelines scoring of prior convictions for escape), but had not done so. With regard to scoring for victim injury, the prosecutor referred to the victim's testimony that she had been cut with a knife. When asked for rebuttal, defense counsel asked the court to require proof as to the convictions. The trial court stated the letter indicating appellant's dispute with the guidelines scoresheet had been taken into consideration. Nevertheless, the court found the guidelines scoresheet prepared by the state to be appropriate and correct.

The first issue presented in this appeal concerns the denial of appellant's motion for mistrial and motion to strike the venire. A motion for declaration of mistrial is addressed to the sound discretion of the trial judge. Ferguson v. State, 417 So.2d 631, 641 (Fla.1982); Salvatore v. State, 366 So.2d 745 (Fla.1978), cert. denied, 444 U.S. 885, 100 S.Ct. 177, 62 L.Ed.2d 115 (1979); Palmer v. State, 486 So.2d 22, 23 (Fla. 1st DCA 1986). A motion for mistrial should be granted only in circumstances where "the error committed was so prejudicial as to vitiate the entire trial." Duest v. State, 462 So.2d 446, 448 (Fla.1985); Cobb v. State, 376 So.2d 230, 232 (Fla.1979). The standard of prejudice which a defendant must demonstrate "to obtain a new trial varies inversely with the degree to which the conduct of the trial has violated fundamental notions of fairness." Salvatore v. State, 366 So.2d at 751. In Salvatore the court concluded that no judgment should be reversed unless the error committed "injuriously affected the rights of the defendant." Id.

In the instant case, the prosecutor's comment occurred in the context of identifying potential witnesses for the prospective jurors. As the prosecutor recited the names of the witnesses, he also recited the respective occupation of each witness. Thus, the reference to Robert Bradley as a person associated with the probation office occurred in the context of an enumeration of possible witnesses who were associated with the sheriff's office, the police department, the Florida Department of Law Enforcement, and the state attorney's office. While the prosecutor's comment could be construed as suggesting that appellant had prior convictions, we find the error does not rise to the level of prejudice which would require declaration of a mistrial.

Appellant's second issue concerns the admission at trial of prior consistent testimony to bolster the credibility of the victim's testimony. As appellant asserts, a witness's trial testimony may not be corroborated or "bolstered" by his or her own prior consistent statement. Von Gallon v. State, 50 So.2d 882 (Fla.1951); McElveen v. State, 415 So.2d 746 (Fla. 1st DCA 1982); Allison v. State, 162 So.2d 922 (Fla. 1st DCA 1964); Holliday v. State, 389 So.2d 679 (Fla. 3rd DCA 1980); Perez v. State, 371 So.2d 714 (Fla. 2d DCA 1979). This general rule is subject to exceptions, however, and the exception pertinent to this particular issue is set forth in Section 90.801(2)(b) of the Evidence Code, which provides in relevant part:

(2) A statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement and the statement is:

(b) Consistent with his testimony and is offered to rebut an express or implied charge against him of improper influence, motive, or recent fabrication; ...

Thus, prior consistent statements of a witness testifying at trial are admissible to rebut, among other things, an express or implied charge of recent fabrication. Hendrieth v. State, 483 So.2d 768, 769 (Fla. 1st DCA 1986), citing Demps v. State, 462 So.2d 1074 (Fla.1985). In Allison v. State this court observed that although the "general rule is well recognized that the testimony of a witness cannot be bolstered up or supported by showing that he made statements out of court similar to and in harmony with his testimony on the witness stand ... the courts have relaxed or not applied this rule where the witness has been impeached or his credibility assailed." 162 So.2d at 924.

Although in this case, the record reflects the victim's prior consistent statements were admitted under the spontaneous statement exception to the hearsay rule, we conclude the statements were equally admissible as non-hearsay under Section 90.801(2)(b), to refute a charge of recent fabrication. The victim's credibility was attacked on cross examination, particularly with reference to her testimony concerning the knife allegedly employed in the robbery. Accordingly, the victim's prior consistent statements were admissible as non-hearsay under Section 90.801(2)(b) to refute a charge of recent fabrication. And, had there been no effort on the part of the defense to establish recent fabrication, the victim's statements were admissible under Section 90.803(1) and (2), ¹ as both spontaneous statement and excited utterance, since the record reflects the...