Wells v. State
| Citation | 492 So.2d 712,11 Fla. L. Weekly 1581 |
| Decision Date | 18 July 1986 |
| Docket Number | Nos. BC-432,BD-119,s. BC-432 |
| Parties | 11 Fla. L. Weekly 1581 Lester WELLS and Jerry Wayne Weeks, Appellants, v. STATE of Florida, Appellee. |
| Court | Court of Appeal of Florida (US) |
James P. Judkins of Davis, Judkins & Simpson, Tallahassee, for appellant, Lester Wells.
Larry D. Simpson of Davis, Judkins & Simpson, Tallahassee, for appellant Jerry Wayne Weeks.
Jim Smith, Atty. Gen., John Tiedemann and Mark Menser, Asst. Attys. Gen., for appellee.
Jerry Wayne Weeks and Lester Wells appeal from convictions of two counts of first degree murder and one count of attempted first degree murder. We reverse and remand for a new trial.
Appellants were alleged to have murdered, on November 10, 1983, Billy Dewayne Wyche and his father, James E. Wyche, and to have attempted to murder Phillip Wayne Enfinger. Enfinger, who survived the attack, testified that he was to go camping with the Wyches. The plan was to meet at McCaskill's fish camp, a tin shed in the woods along the Escambia River. Enfinger arrived with his boat at the landing on Williams Lake, which empties into the Escambia River several miles from the fish camp. He proceeded towards the fish camp and, just before arriving there, the Wyches passed him in another boat and pulled up on the sandbar. Billy Wyche picked up two armloads of supplies and headed towards the camphouse. Enfinger saw Billy suddenly turn around with a terrified expression on his face and heard Billy shout. As Enfinger turned his boat away, he was shot out of it and fell into the water. He heard many shots being fired as he hung onto the side of the boat. Looking across the boat, he identified two men on the shore as the defendants, Jerry Wayne Weeks and Lester Wells. 1 After the two men on shore apparently left, the wounded Enfinger released the boat, drifted downstream, and was eventually able to report the incident and secure help.
At the scene, investigators found James Wyche's body in the water by his boat. Billy Wyche's body was found the next day. The investigators recovered shell casings, footprint impressions and some marijuana from the fish camp shed itself. None of this evidence was directly linked to the defendants.
The state's theory was that defendants had murdered the victims because Billy Wyche was a witness against them in a kidnapping case and because the Wyches had stolen marijuana from the appellants' fields. To that end, the state introduced several items of evidence. A taped statement given by Billy Dewayne Wyche to the police was introduced in which he said that he was kidnapped by the defendants and that they attempted to kill him by putting him in the trunk of his car and driving it into the river. Billy's statement explained that this was done because he and his father had stolen marijuana from fields grown by defendants. Detailed information about the kidnapping investigation was introduced. Evidence that the defendants had been spotted near a marijuana field was also received.
Based on a conspiracy theory, evidence that Wilbur Weeks and Anthony Weeks had purchased guns, ammunition, a truck and registered a boat shortly before the homicides was also introduced. 2 Evidence of statements and acts by Wilbur and Anthony subsequent to the commission of the homicides was also introduced. None of the weapons or other instrumentalities described above was directly linked to the defendants or to the crime scene. The weapons recovered from the defendants, and from Wilbur and Anthony, were not used in the homicides.
Wells introduced several alibi witnesses who placed him elsewhere at the time of the murders. The jury returned guilty verdicts on all charges and the appellants were sentenced accordingly.
The first issue with which we deal relates to the admissibility of the taped police statement of one of the victims, Billy Dewayne Wyche, in which he described in detail his prior kidnapping by the defendants. 3 In the taped statement, which was played for the jury, Billy stated that the defendants maintained a field where they grew marijuana. He said that he and his father, James E. Wyche, had "ripped off" the marijuana field and that this was the reason why the defendants kidnapped and attempted to murder Billy. The state argues that the above evidence is relevant to show motive for the homicides and that the evidence is either not hearsay or, in the alternative, admissible under the state-of-mind exception to hearsay.
In a witness-elimination case, some evidence of the previous alleged crime is necessary and relevant to show motive of the defendants. Sireci v. State, 399 So.2d 964 (Fla.1981). In the present case, the state's theory is that defendants killed the key state's witness in the kidnapping case. Evidence of the alleged kidnapping was relevant to this case. 4 In addition, evidence that the homicide victims stole marijuana from the defendants would likewise tend to show motive. Such evidence, if otherwise admissible--e.g. marijuana adequately linked to the defendants--would be properly received.
Although the evidence is relevant, it was nevertheless inadmissible as hearsay not qualifying under any recognized exception. The state argues that the tape recording was introduced only for the purpose of establishing that the statement was made, and was therefore not hearsay. Our review of the record demonstrates otherwise. The evidence was used as a predicate for other substantive evidence 5 in order to prove, as the state argued in closing, that the defendants were drug traffickers and used any methods available to protect their illegal business. Although there was testimony that the defendants were aware of the kidnapping investigation, there was no evidence to show that either of the defendants was aware that Billy Dewayne Wyche had given the tape-recorded statement. The conclusion is inescapable that this statement was admitted to prove the truth of the matters contained therein and is therefore hearsay.
The statements contained on the tape do not fall within any hearsay exception. The state erroneously asserts that the tape-recorded statement is admissible under the state-of-mind exception which is provided for in Section 90.803(3), Florida Statutes. Under this exception, the statements could be admitted only to show the declarant's state of mind, not that of the defendants. Van Zant v. State, 372 So.2d 502 (Fla. 1st DCA 1979); Bailey v. State, 419 So.2d 721 (Fla. 1st DCA 1982). In the instant case, the declarant/victim's state of mind was not an issue in the case. Nor was the statement offered to prove or explain acts of subsequent conduct of the declarant. See Bailey v. State, supra. The state relies, in part, upon Peede v. State, 474 So.2d 808 (Fla.1985). However, Peede is patently distinguishable. Peede was charged with murder under a felony (kidnapping)/ murder theory. The Supreme Court held that the victim/declarant's statement to her daughter expressing her fear of the defendant prior to the victim's encounter with the defendant was relevant under the facts of the case to show the victim's state of mind and thus admissible under Section 90.803(3). Id. at 816. See, also Jenkins v. State, 422 So.2d 1007 (Fla. 1st DCA 1982) ()
We also reject the state's argument that the tape recording of Billy Dewayne Wyche's statement was "real evidence", not "testimonial", and thus not objectionable hearsay. 6 The cases relied upon by the state, United States v. Onori, 535 F.2d 938 (5th Cir.1976) and Koran v. State, 213 So.2d 735 (Fla. 3d DCA 1968) are clearly distinguishable.
Therefore, although evidence of the prior alleged crime was admissible, Billy Dewayne Wyche's hearsay tape-recorded statement could not be used for that purpose. 7
Appellants also challenge the admissibility of testimony by police officers concerning events which occurred at a "stakeout" near a marijuana patch in a wooded section of Santa Rosa County approximately two months prior to the subject homicides. One officer, hiding behind a pine tree near the patch saw a pit bulldog in the brush. A few minutes later, he heard several shots ring out, two of which hit the tree above his head. He did not see who fired the shots. Another officer had passed a pickup truck which was proceeding into the area. After receiving communication of the gunshots, she returned to the area, saw the truck and stopped it. There were four bulldogs in the back of the truck. Lester Wells was the driver and Jerry Wayne Weeks was the passenger. There was a rifle in the truck. A consent search revealed a grocery bag containing a partial marijuana leaf. The leaf was not fresh. No arrest was made.
The state's theory was that the above evidence was relevant and material in the state's effort to establish that the defendants were involved in a "drug feud" with the Wyches. But the only evidence conceivably connecting the above incident at the marijuana patch with the state's drug feud theory was the inadmissible tape-recorded statement of Billy Dewayne Wyche and the fact that, after the homicides, the police found some marijuana in the shed where the Wyches intended to stay during their camping trip. Clearly, there was an insufficient predicate to establish the relevancy of the defendants' presence near the marijuana patch.
The state urges Jacobson v. State, 375 So.2d 1133 (Fla. 3rd DCA 1979) cert. denied 385 So.2d 758 (1980), as allowing such testimony. In Jacobson, the objectionable testimony was of a witness' involvement in other crimes that arguably involved the defendant. The defendant there was involved in organized criminal activity, and all the state's witnesses were convicted felons. The court stated:
[T]he defendant's criminal life-style was so pervasive and so integral to the...
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