Williams v. State, 97-544

• Court: Court of Appeal of Florida (US)
• Citation: 714 So.2d 462
• Docket Number: No. 97-544,97-544
• Parties: 23 Fla. L. Weekly D75 Bryant WILLIAMS, Appellant, v. The STATE of Florida, Appellee.
• Decision Date: 31 December 1997

Page 462

714 So.2d 462 23 Fla. L. Weekly D75 Bryant WILLIAMS, Appellant,
v.
The STATE of Florida, Appellee. No. 97-544. District Court of Appeal of Florida,
Third District. Dec. 31, 1997.
Rehearing Denied Jan. 14, 1998.

Leonard J. Cooperman, Miami, for appellant.

Robert A. Butterworth, Attorney General, and Paulette Taylor, Assistant Attorney General, for appellee.

Before JORGENSON and SORONDO, JJ., and BARKDULL, Senior Judge.

ON MOTION FOR REHEARING GRANTED IN PART

SORONDO, Judge.

We revisit this case a third time due to the parties' insistence on raising their most persuasive issues on rehearing. Upon the state's confession of error as to the defendant's conviction on count 1 of the Information, we grant the defendant's motion for rehearing as to that count and reverse his conviction and sentence thereon. The Motion for Rehearing is denied on all other grounds. Because the motion raises an issue worthy of discussion we withdraw our previously issued "substituted" opinion and replace it with the following.

Bryant Williams appeals the trial court's judgment of conviction and sentence for the crimes of burglary with assault (3 counts), aggravated stalking and simple battery (2 counts).

On July 6, 1996, Officer Lillian Hunter of the Miami Police Department responded to a dispatch issued as a result of a 911 call and contacted Linda Davis and her son, Osami, the caller. When she arrived she observed that Davis had a lump on her forehead and an injury to her breast. She was also very

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agitated and rambling. At that time Davis told the officer that her boyfriend, Williams, had forced his way into her apartment and struck her on the forehead. She further stated that she had a domestic violence injunction against Williams and that earlier that day she had another fight with Williams during which he bit her breast.

On July 9, 1996, Ms. Davis had another altercation with the defendant and called 911 from a neighbor's house. The police again responded and she told them that Williams had threatened to kill her.

At trial, the state sought to introduce Ms. Davis' statements to Officer Hunter on July 6th as excited utterances under section 90.803(2), Florida Statutes. The state further offered the tape recordings of Osami's 911 call on July 6th and Ms. Davis' 911 call of July 9th as excited utterances.

The state called both Linda and Osami Davis to the witness stand. As has become lamentably common in cases of domestic violence, Davis' testimony before the jury was diametrically contrary to her original statements to the police. She denied any wrongdoing by Williams, insisting that he had a key to her home and was welcome there. She additionally described herself as the aggressor on both July 6th and 9th and argued that Williams was only defending himself from her attack. Osami's testimony, although somewhat consistent with his 911 call, was framed in such a way as to favor Williams. He repeatedly tried to minimize the magnitude of the incident on July 6th. At one point he denied having cried during his 911 call for help, even though both the prosecutor and the defendant's attorney acknowledged on the record that the tape clearly indicates that he was crying hysterically.

On appeal, the defendant argues that the entirety of the state's case rests exclusively on the "prior inconsistent statements" of the victim and her son. In the absence of any independent evidence of guilt, he posits, his convictions must be reversed. State v. Moore, 485 So.2d 1279 (Fla.1986); Joyce v. State, 664 So.2d 45 (Fla. 3d DCA 1995); Santiago v. State, 652 So.2d 485 (Fla. 5th DCA 1995).

The state initially responded that although the statements were, in fact, "prior inconsistent statements," there was independent evidence of guilt, to-wit: photographs of the victim's physical injuries. These photographs, along with the responding officer's description of the victim's injuries on July 6th, the state suggested, were sufficient to distinguish this case from the cases relied upon by the defendant. In the first motion for rehearing, ¹ the state persuasively argued that the statements were not "prior inconsistent statements" but, rather, "excited utterances" which were admissible as substantive evidence, and consequently, that the analysis of the Moore, Joyce and Santiago cases did not apply to this case. We agreed and affirmed, distinguishing these three cases as follows:

In Moore, the state's two witnesses testified before a grand jury in such a way as to inculpate Moore. At a pre-trial deposition, the witnesses both recanted their grand jury testimony. At trial, the witnesses testified that they had lied to the grand jury and were impeached with their grand jury testimony. There was no other evidence of Moore's guilt. The Supreme Court held that a prior inconsistent statement was insufficient to support a conviction where it was the only substantive evidence of guilt. Moore, 485 So.2d at 1281.

In Joyce, the state obtained the sworn statements of two people who testified that they had seen Joyce commit the crimes charged. During trial, both witnesses denied that the defendant had committed the very same crimes. The state impeached the witnesses with their prior testimony. The impeachment evidence was the only evidence of guilt. Relying on the Moore decision, this court held that such evidence was insufficient to support the defendant's conviction. Joyce, 664 So.2d at 46.

In both Moore and Joyce, the prior testimony of the witnesses in question could be characterized only as prior inconsistent statements.

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Neither the grand jury testimony of the Moore witnesses nor the deposition testimony of the witnesses in Joyce fell within any of the exceptions to the hearsay rule.

The facts of the Santiago case were somewhat different and not as clear. In Santiago, the defendant was convicted for the crime of attempted second degree murder and sexual battery. As explained by the Fifth District Court of Appeal:

The prosecution for attempted murder was predicated upon the original version of a choking incident given to the police by the victim, Ms. Oquendo, immediately after the incident. Prior to trial she recanted her original statement in regard to the nature of the choking and the events surrounding it, as well as her statement in regard to the alleged sexual battery.

Santiago, 652 So.2d at 486 (footnote omitted)(emphasis added). The court held that because the only evidence of guilt was the victim's prior inconsistent statement, Santiago's conviction could not stand. Although the factual recitation above suggests that the victim's original version of events might have been an excited utterance, the court did not characterize it that way and we presumed that it was not admitted as such. We concluded, therefore, that Santiago is consistent with Moore and Joyce, and not inconsistent with our analysis.

In the second motion for rehearing in this case, the defendant argues that the Florida Supreme Court's decision in State v. Green, 667 So.2d 756 (Fla.1995), compels a reversal in this case. In Green, the Supreme Court held that a prior statement of a child victim of sexual abuse introduced pursuant to the provisions of section 90.803(23), Florida Statutes, which directly conflicted with the victim's trial testimony, was insufficient, standing alone, to sustain a criminal conviction. The Court stated:

Our decision in State v. Moore, 485 So.2d 1279 (Fla.1986) (Moore II ), is dispositive and requires a finding that this evidence, standing alone, is insufficient to convict Green.

In Moore II, we held that, in a criminal prosecution, a prior inconsistent statement standing alone is insufficient as a matter of law to prove guilt beyond a reasonable doubt. We reiterate that decision today, finding that our holding in Moore II applies regardless of whether the prior inconsistent statement is admitted under section 90.801(2)(a) or section 90.803(23).

Id. at 760. The defendant argues that the conviction and sentence in the present case must be reversed because the legal issue being reviewed is identical to that in Green. We do not agree.

We begin our analysis of the defendant's position...