IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
OF THE STATE OF FLORIDA IN AND FOR PINELLAS COUNTY
APPELLATE DIVISION

           

ROBERT RICHARD PITTS,

            Appellant,

vs.                                                                   Appeal No. CRC 99-19661 CFANO

STATE OF FLORIDA,

            Appellee.

_________________________________/

Opinion filed _____________________.

Appeal from a decision of the Pinellas County Court

County Judge Robert J. Morris, Jr.

Jill D. Menadier, Esq.
Assistant Public Defender
Attorney for Appellant

Gregory D. Baird, Esq.
Assistant State Attorney
Attorney for Appellee

ORDER AND OPINION

            THIS CAUSE is before the Court on the Appellant’s appeal from the verdict, judgment and sentence entered by the Pinellas County Court following a jury verdict of guilty of battery.  After reviewing the briefs and record, this Court reverses the decision of the trial court denying Appellant’s motion for mistrial and remands for a new trial.

The Appellant raises four issues in his appeal.  First, Appellant claims the trial court erred in excusing for cause prospective jurors Keener and Kersting.  The discretionary decision of a trial judge as to whether to dismiss a prospective juror for cause should not be disturbed unless error is manifest.  Waddell v. State, 458 So.2d 1140 (Fla. 5th DCA 1984).

 At the conclusion of voir dire, the State challenged prospective jurors Keener and Kersting for cause based upon their inability to meet the legal qualifications required of jurors.  As to Keener, the trial court expressed that Mr. Keener made it clear that he could not “undertake the responsibility”, and that “he could not perform the job.”  As to prospective juror Kersting, the trial court found that “she appeared to be confused” and “lacked the ability to do the job”.   The reasons propounded by the trial court for excluding prospective jurors Keener and Kersting for cause clearly fit within the ambit of Fla. Stat. Sec. 913.03 (1).  Therefore, the trial court’s ruling that they were incompetent to serve was properly within its discretion.  Accordingly, the trial court did not commit manifest error by excluding prospective jurors Keener and Kersting for cause.

The Appellants second issue in his appeal is that the trial court erred in admitting hearsay testimony from Deputy Cangemi regarding what the dispatcher told the Deputy and in denying his motion for mistrial.  Deputy Cangemi was allowed to testify, over defense objection, that his dispatcher “stated there was a female caller on the phone that stated that she had been beat up by her husband.”  This statement clearly accuses the Appellant, as the caller’s husband, of having battered the caller.  However, nowhere on the tape does the caller state that her husband beat her up.  Instead, the unredacted version of the 911 tape contained only an inference that a battery had occurred.

The Appellee argues that the deputy’s accusatory statement was introduced to show a logical sequence of events. The inherently prejudicial effect of admitting into evidence an out-of-court statement relating accusatory information to establish a logical sequence of events outweighs the probative value of such evidence.  Conley v. State, 620 So.2d 180 (Fla. 1993); State v. Baird, 572 So.2d 904 (Fla. 1990). Furthermore, the deputy’s reason for being there was not in issue and was never challenged.  This Court therefore finds that the trial court erred in admitting the Deputy’s statement as to what the dispatcher told him.  The question now becomes whether that error was harmless.

The standard for harmless error is set out in State v. DiGuilio, 491 So.2d 1129 (Fla. 1986).  The test places the burden on the State, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction.  In attempting to show the error was harmless, the Appellee argues that the Appellant was permitted to make arguments that had previously been prohibited by the trial court, and that the Appellant actually benefited from its admission.  However, both of these arguments fail to show that there was no reasonable probability that the error contributed to the conviction.  Conversely, the record shows there is a reasonable probability that the error contributed to the verdict.  The testimony of Deputy Cangemi as to what was told to him by his dispatcher clearly accused the Appellant of battering the victim. To refute the accusation, the Appellant argued that the victim was angry and made up the allegation.  This defense was seriously undermined by testimony that the victim accused the Appellant of battery to the 911 operator rather than at a later time, after more time had passed, and she had more time and opportunity to fabricate.

The Appellee also argues that “because it based its case on evidence which was properly before the jury and did not focus upon Deputy Cangemi’s testimony again during trial or in it’s closing, there is no reasonable probability that the verdict was affected by his testimony.” In essence, the Appellee is arguing that the verdict was not affected by the hearsay testimony because there was other permissible evidence of guilt from which the jury could have reached its verdict.  This argument, however, is contrary to DiGuilio, where the court, agreeing with the argument of former Chief Justice Traynor of the California Supreme Court, stated “harmless error analysis must not become a device whereby the appellate court substitutes itself for the jury, examines the permissible evidence, excludes the impermissible evidence, and determines that the evidence of guilt is sufficient or even overwhelming based on the permissive evidence.   Id. at 1136.

This Court finds that the Appellee, as the beneficiary of the error, failed to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict.  Accordingly, the trial court committed reversible error in admitting the testimony of Deputy Cangemi.

Third, Appellant argues that the trial court erred in admitting hearsay statements of the victim to Deputy Cangemi and Deputy Albert as an excited utterance exception to the hearsay rule because at the time they were made there had been sufficient opportunity for reflective thought and fabrication.  For a statement to qualify as an excited utterance, three essential elements must be met:  “(1) there must be an event startling enough to cause nervous excitement; (2) the statement must have been made before there was time to contrive or misrepresent; and (3) the statement must be made while the person is under the stress of excitement caused by the event.” State v. Jano, 524 So.2d 660, 661 (Fla. 1988).

Both the 911 tape and Deputy Cangemi’s testimony indicate that the police responded immediately to the victim’s location when she was still on the phone with the dispatcher.  The record does fail to indicate how soon after the alleged battery occurred the 911 call was made.  However, Deputy Cangemi testified that upon his arrival Mrs. Pitts was crying, was emotional, her hair was messed up, and she had a fresh scratch on her cheek.  According to the deputy, Mrs. Pitts immediately said she had been hurt by her husband who had gone over to a Denny’s across the street.  Deputy Allen, who testified that Mrs. Pitts advised him that her husband had beaten her up and then had walked across the street to Denny’s, corroborated this testimony.  The trial court found that Mrs. Pitts’ statements to Deputy Cangemi and Deputy Allen were made “while under the stress of excitement without opportunity to reflect and calm down.”  We agree with the trial court and find the trial court did not abuse its discretion in admitting the excited utterances of Mrs. Pitts made to Deputy Cangemi and Deputy Allen.

The Appellant’s final argument is that the trial court erred in denying the Defendant’s motion for judgment of acquittal.  Unless there is an absence of legally sufficient evidence on which to base a guilty verdict, the motion must be denied.  Everett v. State, 339 So.2d 704, 706 (Fla. 3rd DCA 1976) citing Garmise v. State, 311 So.2d 747 (Fla. 3rd DCA 1975).  The evidence presented at trial was legally sufficient on which a base a guilty of battery verdict. In addition to the admissible testimony of what the officers saw and heard, the 911 tape and photographs of Mrs. Pitts depicting a fresh scratch on the cheek were entered into evidence.  Because the State presented legally sufficient evidence at trial, the trial court properly denied the Appellant’s motion for judgment of Acquittal.  It is therefore,

ORDERED AND ADJUDGED that this Court reverses the decision of the trial court denying the motion for mistrial and remands this case consistent with this opinion.

            DONE AND ORDERED in Chambers at St. Petersburg, Pinellas County, Florida this 5th day of October, 2000.

 

__________________________
CHARLES W. COPE
Circuit Judge
Primary Appellate Judge


___________________________
NANCY MOATE LEY
Circuit Judge


___________________________
R. TIMOTHY PETERS
Circuit Judge

 

                                                           

Copies furnished to:

The Honorable Robert J. Morris, Jr.

Jill D. Menadier, Esq.
Assistant Public Defender
Criminal Justice Center
14250 49th Street North
Clearwater, Florida 33762

Gregory D. Baird, Esq.
Assistant State Attorney
P.O. Box 5028
Clearwater, FL 33758