Tucker v. State, 2D02-4370.

• Decision Date: 23 July 2004
• Docket Number: No. 2D02-4370.,2D02-4370.
• Citation: 884 So.2d 168
• Parties: Little Tommy TUCKER, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

884 So.2d 168

Little Tommy TUCKER, Appellant, v. STATE of Florida, Appellee.

No. 2D02-4370.

District Court of Appeal of Florida, Second District.

July 23, 2004.

James Marion Moorman, Public Defender, and Steven L. Bolotin, Assistant Public Defender, Bartow, for Appellant.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Katherine V. Blanco, Senior Assistant Attorney General, and Deborah

Fraim Hogge, Assistant Attorney General, Tampa, for Appellee.

ALTENBERND, Chief Judge.

Little Tommy Tucker¹ appeals judgments for carrying a concealed firearm, aggravated assault with a firearm, and felon in possession of a firearm.² Because the trial court refused Mr. Tucker's request to sever the charge of felon in possession of a firearm from the other charges and because the court admitted into evidence a taped 911 call without properly evaluating whether it qualified as an excited utterance, we reverse the judgments and remand for a new trial.

Mr. Tucker and Jason Pinion had an argument on April 21, 2003. The subject of this argument was not well developed at trial, but the record suggests it may have concerned the whereabouts of the inventory of their joint venture in questionable pharmaceuticals. The day after this dispute, Mr. Tucker allegedly confronted Mr. Pinion in Frostproof, Florida, at approximately 5 p.m. Mr. Pinion was standing near a telephone pole on the street where he lived. Mr. Tucker was standing nearby. Mr. Pinion, a convicted felon, claimed that Mr. Tucker pulled a handgun out of his front pocket and fired a bullet that hit the ground beside Mr. Pinion's feet. Thereafter, Mr. Tucker allegedly ran from the scene, entered a car, and rode away toward Lake Wales.

The only other witness to this event was a woman who lived in Mr. Pinion's house. She is the girlfriend of his brother, with whom she has a child. She is also a convicted felon. She claimed that Mr. Tucker had a black .38 handgun, but she did not know if it was a revolver or an automatic. She explained that Mr. Tucker first pointed the gun at Mr. Pinion and then pointed it at the ground and fired. She claimed there was a big hole in the ground where the bullet entered. After Mr. Tucker fled the scene, she and Mr. Pinion entered their car and drove to Mr. Pinion's mother's house.

At 5:19 p.m., Mr. Pinion called the 911 operator from his mother's house to report this event. The telephone call was recorded. As a result of this call, deputies were dispatched to the scene and they conducted a manhunt to locate Mr. Tucker. He was found as a passenger in a car with two other occupants. The arresting officers did not find a gun on Mr. Tucker and did not search the car. No gun was ever located. There was no gunshot residue or any other forensic evidence to support the allegation that Mr. Tucker had recently discharged a firearm. At the crime scene, the investigating deputy could not see a bullet hole in the ground, even though the woman who allegedly witnessed the event pointed to the location where she believed the bullet had entered the ground. No bullet or casing was located at the scene.

Mr. Tucker was initially charged on May 13, 2002, with carrying a concealed firearm and aggravated assault with a firearm. Mr. Tucker demanded a speedy trial, and the case was set for trial for the week of Monday, July 22, 2002. The State prepared an amended information on Wednesday, July 17, which was filed on Friday, July 19, adding a count for possession of a firearm by a convicted felon.

Jury selection began on Monday, July 22, 2002. At that point, the defense did not move to sever the charge of possession of a firearm by a convicted felon from the earlier charges. It is clear from the record that defense counsel made this decision as a tactical matter. The State had not listed a fingerprint expert as a witness for trial, and the defense hoped to prevent the State from introducing the prior convictions into evidence or from otherwise proving its case in light of this omission. See, e.g., Mason v. State, 853 So.2d 544 (Fla. 1st DCA 2003)

(requiring judgment of acquittal for possession of firearm by convicted felon when only evidence showing defendant was convicted felon was certified copy of judgment containing defendant's name).

On Thursday, July 25, after the jury was selected but before the panel was sworn, the trial court asked the attorneys how they intended to handle the proof regarding Mr. Tucker's status as a convicted felon. Defense counsel indicated that Mr. Tucker would not stipulate or admit that he was a convicted felon. The State responded that it would introduce into evidence a judgment reflecting Mr. Tucker's prior conviction and would arrange for a fingerprint examiner to testify to identify the fingerprints on a prior conviction as Mr. Tucker's. The defense attorney objected on the ground that the State had never disclosed a fingerprint comparison expert as a witness in discovery. The trial judge held an immediate Richardson³ hearing, after which he offered to continue the case but indicated he was unwilling to deny the State the right to call a fingerprint expert to identify the prints on the prior conviction.

Following this ruling, defense counsel stated that, "given the predicament," she and her client had decided to ask for a severance of the charge of felon in possession of a firearm and requested that they proceed to trial on the remaining charges for which Mr. Tucker had demanded a speedy trial. The State objected to this severance, and the trial court denied the motion.

During the trial, the State sought to introduce the recorded 911 telephone call through the testimony of the 911 operator. Mr. Tucker objected that the statements made by Mr. Pinion in the recorded call were hearsay. The State responded that the telephone call was an excited utterance. The trial court initially intended to admit the recorded call without listening to it, based upon the fact that the incident alleged was an aggravated assault that could produce excitement and that the call was made approximately twenty minutes after the incident. When the defense objected and suggested that the trial court take evidence on the issue of whether Mr. Pinion was actually excited when he made the call, the trial court refused to require evidence of Mr. Pinion's state of mind at the time of the telephone call, but agreed to listen to the recording. Thereafter, the court announced:

Okay, I've listened to the tape and it sounds to me like he's excited. I don't know that that's a requirement for me to make a determination or not, given the time frame that's involved. And the fact that somebody would not be excited, I don't think would necessarily disqualify this as an excited utterance, given the situation. Because someone may be excited and you can't even tell.

The trial court accepted the recording into evidence, and the tape was played for the jury. In the recording, Mr. Pinion relates to the operator not only that Mr. Tucker fired a gun at him, but also his opinion as to why Mr. Tucker may have done this and other extraneous information.

The jury ultimately convicted Mr. Tucker as charged, and he was sentenced to concurrent sentences, the longest of which is a thirty-year term of imprisonment as a habitual offender. On appeal, Mr. Tucker raises four issues. We address the two dispositive issues.⁴

I. SEVERANCE OF THE OFFENSE OF FELON IN POSSESSION OF A FIREARM

Mr. Tucker argues that the trial court erred when it refused to sever the offense of felon in possession of a firearm from the trial of his other offenses. We agree. Although a trial court has discretion to grant or deny a motion for severance, that discretion has been sharply curtailed when it concerns a request to sever a charge of felon in possession of a firearm. See Monson v. State, 627 So.2d 1301, 1302 (Fla. 1st DCA 1993)

; Craft v. State, 441 So.2d 704 (Fla. 2d DCA 1983).

Even if consolidation is the "most practical and efficient method of processing" a case, practicality and efficiency should not outweigh a defendant's right to a fair trial. "The objective of fairly determining a defendant's innocence or guilt should have priority over other relevant considerations such as expense, efficiency, and convenience." Crum v. State, 398 So.2d 810, 811 (Fla.1981).

State v. Vazquez, 419 So.2d 1088, 1091 (Fla.1982) (footnote citation omitted).

In this case, both the State and the defense made some last-minute tactical decisions before the commencement of the trial. Mr. Tucker did not waive his right to request a severance in that process. He moved to sever the offenses within a week of the filing of the relevant charge and prior to the swearing of the jury. Even if this case were treated as one in which the trial had commenced, Florida Rule of Criminal Procedure 3.152(a)(2)(B) states that the trial court shall grant a severance of the charges during trial if the defendant consents and shows that the severance is necessary to achieve a fair determination of the defendant's guilt or innocence of each offense. Mr. Tucker satisfied that burden in this case.

Because the trial court abused its discretion by denying Mr. Tucker's request to sever the felon in possession of a firearm charge from the charges for carrying a concealed firearm and aggravated assault with a firearm, we reverse Mr. Tucker's convictions on the latter two charges. See Vazquez, 419 So.2d at 1091

(holding that proof of prior conviction, although unfairly prejudicial to other counts, was relevant, admissible, and not unfairly prejudicial for charge of felon in possession of firearm and thus that charge must be affirmed).⁵

On remand, the trial court must sever the offense for felon in possession of a firearm from the remaining offenses.

II. ADMITTING 911 TAPE AS EXCITED UTTERANCE

Mr. Tucker also argues that the trial court erred when it admitted the 911 recording as an excited utterance.⁶ We agree. Section 90.803(2), Florida...