Walters v. State, 3D04-3168.
| Decision Date | 19 July 2006 |
| Docket Number | No. 3D04-3168.,3D04-3168. |
| Citation | 933 So.2d 1229 |
| Parties | Martin J. WALTERS, Appellant, v. The STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Bennett H. Brummer, Public Defender, and Thomas Regnier, Assistant Public Defender, for appellant.
Charles J. Crist, Jr., Attorney General, and Jennifer Falcone Moore, Assistant Attorney General, for appellee.
Before COPE, C.J., and GERSTEN and SHEPHERD, JJ.
Martin Walters ("the defendant") appeals his convictions for attempted second degree murder with a firearm, aggravated assault with a firearm, and possession of a firearm by a convicted felon. We reverse.
The defendant and Charlotte Briggs ("Briggs") were involved in a romantic relationship. In August 2002, the two became involved in an altercation that culminated in a firearm being shot and both of them sustaining minor injuries. However, when they called 911 and initially spoke with the investigating police officers, they reported a concocted story that they had been the victims of a home invasion robbery. During the investigation only one bullet was recovered and gunshot residue was found on both the defendant and Briggs. The police concluded that the story about the robbery was untrue and questioned both the defendant and Briggs. During questioning, Briggs told the officer that the defendant had pulled a gun, threatened to kill her, and fired the weapon twice, injuring her arm and shoulder. The same officer then questioned the defendant. The defendant's version was that it was Briggs who shot the firearm once into the floor, pointed it at him, and then the weapon accidentally fired, wounding his thumb.
The defendant's first issue on appeal is that it was error to allow the police officer to testify, over objection, as to the statements Briggs made to him during his investigation. We agree. The trial court ruled that Briggs' statement to the police officer that the defendant had shot her was an excited utterance. However, for a statement to be admissible as an excited utterance:
(1) the declarant must have experienced or witnessed an event startling enough to cause nervous excitement; (2) the statement must have been made while under the stress of excitement caused by the event; and (3) the statement must have been made before the declarant had time to contrive or misrepresent.
Evans v. State, 838 So.2d 1090, 1093 (Fla. 2002); § 90.803(2), Fla. Stat. (2002).
Here, three hours had elapsed since the startling event and, more importantly, Briggs, the declarant, had in fact misrepresented what had occurred by concocting a story that she and the defendant had been victims of a home invasion robbery. The state concedes that her statement to the police officer cannot qualify as an excited utterance and, as a result, was inadmissible hearsay. The officer should not have been permitted to testify about Briggs' statement to him that the defendant had shot her. We reverse and remand for a new trial. In light of this ruling, we need not reach the other claims of trial error.
On the defendant's final point on appeal, we reverse his adjudication of guilty of possession of a firearm by a convicted felon and remand for a new trial. In this case, the trial court bifurcated the proceedings. In the first phase, the court conducted a jury trial on attempted murder and aggravated battery.
After the jury found the defendant guilty, the court proceeded to the second phase: the...
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