County Criminal Court: CRIMINAL LAW- Evidence- trial court erred in finding the statements admissible as excited utterance-essential elements necessary to fall within the excited utterance exception are that (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.  Here, victim  had time to 'reflect' as she clearly thought about the alleged incident-additionally, there is no evidence to establish when the alleged incident occurred as to prove victim was under the stress or excitement caused by the event.

Order reversed.  Williamson v. State, CRC051460CFAES, (Fla.6h Cir. App. Ct. January 31, 2006).

 

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA IN AND FOR PASCO COUNTY, FLORIDA

APPELLATE DIVISION

 

JOHN WILLIAMSON,                                                                                   

                        Appellant,                                                            Appeal No.05-1460FAES

v.

 

STATE OF FLORIDA, 

                        Appellee. 

________________________________/

 

 

ORDER AND OPINION

            THIS MATTER is before the Court on the defendant, John Williamson's appeal  of the trial court's judgment and sentence.  After reviewing the briefs and record, this Court finds that the decision of the trial court must be reversed.   

            On October 19, 2004, appellant was arrested for Domestic Battery.  Immediately before trial, the state proffered the testimony of Mr. Alley.  Alley testified that he was seventeen years old.  He explained that the victim, Janice Blanchard, came to his house about 12:30 a.m. with her baby.  He stated that she knocked on the door and when he answered the door she was standing in the doorway with the baby in her hands.  He said "[h]er lip was kind of big and she had dried blood and stuff on it."  He stated that he invited her in and his girlfriend started cleaning her up with "stuff" and they called the cops.  He was asked "[n]ow, was she crying?" and he replied "[n]ot really, somewhat.  I mean, her eyes --like, it wasn't a big cry.  You know how you sit there and cry, but a little whimpering.  Her eyes were watery and stuff." He stated "[s]he just looked a little shocked,  . . . ". When asked if she looked like she was in shock, he replied "I don't know exactly, but, I mean, it was bothering her.  I could tell it was bothering her. She was crying a little, yeah."  The state then asked what she said, and Alley replied:

            She told us that John had got mad because …before all that, well, me and John             had it in. I tried to get him to leave.  I kept asking him to leave my house.  So            finally when he left, I guess he got mad and took it out on her from what she           said, because she told me after he went down that dirt road, he slapped her while          they were going down that dirt road, just while she was on the passenger side.

 

The state then asked "[s]o she specifically said what?" Alley replied "[h]e hit her going down the dirt road.  And I could hear the baby hollering while they were going down the road." With regard to the injuries, Alley testified that he saw "[j]ust a big lip" and some blood on her shirt, face, and jacket.

            Thereafter, appellant argued that the dried blood on her face indicated the passage of time.  He also argued that the witness did not testify that the victim Blanchard was crying; he said she had 'some water in her eyes'. Appellant went on to argue that Alley  certainly did not indicate Blanchard was excited or that she was "really reeling" from the event.  Finally, appellant argued: "[Blanchard] had dried blood on her face and [Alley] indicated [Blanchard] was kind of whimpering, which, to me, doesn't indicate an excited utterance at all, Your Honor. . . .And, also, he hadn't told the police officers anything about hearing either Blanchard or the baby screaming as they were driving down the road in the vehicle."

            The prosecutor argued that Alley testified that Blanchard did appear to be in a state of shock and did testify that  she was whimpering.  The prosecutor went on to state "I would tell the Court upstairs and on Monday, both times the witness advised me that she was crying.  The testimony here today is that basically . . .she had water in her eyes, she was whimpering and she gave this statement."  The court asked if Alley was the state's only witness and the state attorney said that he was not; he also had a police officer.

            The court then stated "I'm going to allow it.  I believe under this case law provided by the State, which is State versus Jano, . . . that the three elements are satisfied.[1] I'm not sure how enthusiastic a jury is going to be to hear this guy, but in any event, we'll see." 

            Jack Alley was called to testify. He stated that on October 18, 2004, he  pulled up in front of his home and saw people in his yard.  He testified he could hear appellant inside yelling about something. He testified that he went inside his house and saw appellant standing inside his living room.  He explained that appellant was "[s]itting there hollering at his girlfriend" Blanchard. Alley testified that at the time, appellant was holding a beer in his hands.  He explained that appellant seemed to be intoxicated, based on the way he was walking, the way he was slurring his words and the way he acted.  Alley stated that appellant was yelling at Blanchard for fifteen to twenty minutes before they wound up leaving. Alley then stated that Blanchard and appellant were standing in the doorway and she was in front of him.  "And he reached up behind her back and grabbed her hair.  And when he pulled her hair, it pulled back like this (indicating).  She had real long hair."  Alley stated that at that point, Blanchard reached up and pulled appellant's hair. After that, appellant went to his car, which was parked in Alley's driveway.  Blanchard went out and sat in the car.  Appellant was in the driver's seat and Blanchard was in the passenger seat. The witness stated that they continued to argue. Alley explained that Blanchard "just came over and sat down in the passenger's seat and he took off." Alley explained that it was Blanchard, the baby, and the defendant in the car.  He testified that the car drove down his road and explained that it is a large, dirt, hilly road all the way down.  He was then asked if he could  hear anything as the car was driving down the road and he replied "I heard the baby crying and Blanchard screaming going down the road."  Alley testified that the next time he saw Blanchard was an hour to two hours later when she knocked on the door. He testified that she had her baby with her.  He explained that she looked "beat up.  Her lip was big, she had dried blood on her and the baby." He testified that she did not look that way when she left his house.  Alley testified that she was "sobbing" and when asked if it seemed like she was in shock he replied  "[s]creaming, yeah." 

            The witness was then asked how she looked.  He stated "[j]ust her lip was big.  She kept holding her mouth and stuff.  Blood--she had dried blood all over her clothes.  And she just kept saying, 'I don't want the cops to find out.  I'm trying to hide it from the cops,' and that was it." The state asked if she said anything else about what had happened and Alley replied "[s]he said that when they started going down the dirt road, he reached over and was hitting her like this right here (indicating), backhanded, while they were going down the dirt road." When asked if Blanchard said anything else about what had happened, Alley stated "[s]he said that if I wouldn't have asked him to leave or made him mad, it wouldn't have happened. She tried to blame it on me." The witness also testified that she asked him not to call the police.  When asked why he testified "[s]he didn't want nothing to happen to him."  Alley testified that he went ahead and called 911 and was there when Deputy Bunner arrived. He testified that when Deputy Bunner arrived at his house the first time he did not tell him what happened because "she [Blanchard] was right there in front of him."  She didn't want to go out and talk to him by herself, so we had to go with her." Alley testified that when Deputy Bunner came out a second time Blanchard was not at his house and it was at that time that he told the deputy what happened. On cross examination Alley admitted he probably could have told the deputy what happened without Blanchard being right there but he didn't.

            Deputy Bunner testified that when he first came in contact with Blanchard she had blood on her mouth and she told him that she was in a car wreck.  He testified that she was holding a white cloth to her face talking to him.  She had clotted blood on her teeth and some minor scratches on her face.  He testified that Blanchard told him that "she and her boyfriend were in an argument and they sat in a vehicle together, and the boyfriend was driving and fled the scene and ended up hitting an unknown object, which caused her to hit her face on the dashboard." The deputy testified that he could not recall whether he believed her or not.  When asked if he investigated whether or not there was an accident, he testified that he saw a car when he was dispatched there.  He explained that it was sitting in the middle of a dirt road on the pathway to their house. He testified that he looked at it and it didn't appear to be in a wreck. When asked what the victim told him the wreck was caused by, the deputy stated "[j]ust erratic driving, which resulted in hitting an unknown object, which resulted in her face hitting the dashboard." He testified that she did not show him where the unknown object was located and he did not see any damage to the car or any damage to any objects down the road.  The deputy testified that he left but what was called back to "a different residence that she was at currently, which is just down the road." He testified "[t]his was in regards to her friends claiming that Blanchard had lied to me on our previous encounter." He stated "[t]hey . .. said that Blanchard and John were involved in an argument and that John grabbed the back of Blanchard's head and pulled her hair and yanked her head back." He testified that at that point, he retrieved their statements and arrested John. He further testified that John appeared to be intoxicated.  When asked what he based that on he explained "[t]he smell of an alcoholic beverage emitting from him and just his actions, slurred speech, bloodshot, glassy eyes."

            On cross examination the deputy testified that he went out to Parkview Estates three times that night. The first time was for a domestic dispute between a father and son. The second time was when he saw the victim and the third time was when he went back to talk to the witnesses. He testified that during the second visit, when he saw Blanchard, he was "under suspicion" of domestic violence because he received word that she had been 'beaten up.' He testified that he did not take pictures of the car or of the victim.  He was asked if he had any new information the second time he went back to the house, at 2:50 in the morning that he did not have at 12:35.   He replied that the witnesses advised that Blanchard had lied to him on his previous encounter.  He was asked if he spoke to Blanchard the second time and he could not recall. He was then asked if he asked Blanchard, the first time, at 12:35, whether or not her hair had been pulled and whether she had been struck. He replied that he had no knowledge whether she was beaten up or not at that point.  She advised him she was in a car wreck, so he didn't ask her if her hair was pulled. The deputy testified that the first time he had any information that Blanchard had her hair pulled was the third time he was out there (2:50 a.m.). Appellant then approached the deputy and asked him if he was familiar with his report. He stated that he was. Appellant pointed out that in the report, Bunner stated that at 12:35 a.m., he spoke with the victim, who denied being struck or having her hair pulled by the defendant. Bunner acknowledged that the only time he could recall talking to Blanchard was at 12:35 a.m.. Appellant then asked, "[s]o how did you ask her at 12:35 about having her hair pulled when you didn't hear about it until two hours later?" The deputy responded that the PC affidavit was written after "all these interviews were conducted.  The PC affidavit includes everything that I needed for the arrest." On redirect, Bunner explained that Blanchard provided very vague details. He testified that he arrested appellant because he had two witnesses that advised they observed the victim get her hair pulled by the appellant.

            The state rested. Appellant made a motion for a judgment of acquittal.  That motion was denied. Appellant called Janice Blanchard.  She testified that she has been in a relationship with appellant for eight years. She testified that on October 18, she witnessed a verbal confrontation between appellant and Jack Alley.  She testified that that she and appellant left Alley's house that night in a car and got into a car wreck.  She explained that "John was driving and there was a car coming and John hit a fence and a pole." She testified that her mouth hit the dashboard and her mouth was busted open.  Blanchard acknowledged that John had been drinking that evening. When asked if John had at any time smacked her while in the vehicle she stated that he did not.  When asked if he at any time yanked her hair she stated that he did not. When asked if he at any time yanked her hair before they got in the car, while at Jack Alley's place, she replied that he did not. She testified that after the wreck she went  to appellant's father's house, where they live. She stated that about a half hour after the accident the police came out.  She testified that Deputy Bunner asked her what happened to her face and she told him that they got into a car wreck. She said "[a]nd that’s  when he had asked me if John had physically touched me in any type of way, and I said no." Blanchard testified that John has never hit her and that he did not smack her at any time earlier that evening. She testified that the third time the deputy came out he arrested John.

            On cross examination Blanchard testified that appellant was drinking that night. She testified that she and appellant did not get into an argument at all that night. At that point, the state asked if she recalled telling Deputy Bunner that night that she did get into an argument with the defendant  and "then she [got] into the car over the fact that he was intoxicated."  She replied "I told him not to drive that night and he said that he was fine to drive.  I mean, I don't think--it's not really an argument, but it was just for me to tell  him that he didn't need to drive that night." The state attorney asked "[s]o you didn't tell Deputy Bunner that you got--you were in an argument with him?" She responded "I don't say it was an argument.  I was telling him not to drive." She testified that that started at Jack Alley's house after Jack Alley arrived. She denied that appellant was yelling at her before Jack Alley got to his house.  Blanchard stated that she had two drinks before she left that night and that she was fine to drive.  She testified that she was going to drive and told John not to drive but John got in the driver's seat and drove away.  Blanchard testified that she did not think appellant was 'completely drunk.' When asked if she thought he was fit to drive, she replied "[y]es, in a way. . .. In a way because . . . .he had a little bit too ---not too much to drink, but enough to where he didn't need to drive, because he got in trouble before for drinking and driving." She testified that she was not wearing a seat belt. She testified that when John hit the fence, he left the car there stuck beside the fence.  She testified that she walked to Jack's house, about a mile away, because John and his dad were feuding and she did not want to get in the middle of it.  She testified that she had her baby with her. Blanchard stated that she was not bleeding but still had a little bit of blood on her.  She said there was blood on her face and her shirt. She testified that she did not change her clothes because she did not think of it at the time. She stated that there was no blood on her baby.  She testified that she never walked to Jack's alone at night before. Blanchard stated that John and his dad did move the car to John's dad's house where they live. She testified that the second time the deputy came out the car was on the street where the accident happened. She testified that the car was moved after the deputy left. She denied John slapped her and denied telling Jack that she did not want the police to find out because she did not want to get John in trouble. 

            The defense rested. Deputy Bunner was called back to the stand. He testified that when he first went out to Jack Alley's house, the vehicle appellant and Blanchard were driving that evening was about 100 feet off Happy Hill Road. He testified that it was not resting up against a fence.  He testified that car was halfway off the road and on the grass facing away from the fence.  There was nothing in front of the direction it was facing. He testified that the barbed wire fence did not appear to be damaged at all and the car did not appear to be damaged  at all.  On cross examination Bunner testified that the victim could not tell him where the crashed occurred.  He testified "[s]he was unspecific on where it occurred or what they hit." The state and the appellant both rested.

            The defendant was found guilty and sentenced to one year probation with a condition that he serve 60 days in the county jail. A motion for new trial was filed and as grounds stated that the testimony of Mr. Alley did not fall within the excited utterance exception to the hearsay rule. That motion was denied. 

                This Court finds that the trial court erred in finding the statements admissible under State v. Jano,  524 So. 2d 660 (Fla. 1988).   In Jano, the Court held that "[t]he essential elements necessary to fall within the excited utterance exception are that (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."  This Court finds that the state failed to establish at least two of the three elements.   First, the evidence does not satisfy the second element that the statement must have been made before there was time to contrive or misrepresent.  Specifically, in this case, Alley testified that Blanchard told him "[she did not] want the cops to find out" and "[she was] trying to hide it from the cops."   Thus, it is obvious that Blanchard had time to 'reflect' as she clearly thought about the alleged incident. Additionally, there is no evidence to establish when the alleged incident occurred as to prove Blanchard was "under the stress or excitement caused by the event."  Here, Alley testified that Blanchard was "[n]ot really" crying and had dried blood on her face and clothes when she made the statements to Alley.  Moreover, by all accounts, the passage of time was anywhere from one and a half to two hours.  Thus, this Court finds that even taking Alley's testimony as absolutely true, the evidence is inadequate under Jano.

                It should be noted that this Court has not ignored the fact that the evidence surrounding the hair-pulling incident was sufficient to establish a battery.  However, this evidence was not the thrust of the state's case. Therefore, in light of the fact that this case turned on the credibility of witnesses, this Court can not say the improper admission of the hearsay statements did not contribute to the verdict.  

            IT IS THEREFORE ORDERED that the judgment of the trial court is REVERSED.  

           

DONE AND ORDERED in Chambers at New Port Richey, Pasco County, Florida this __ day of January,  2006.

                                                                                    ________________________

                                                                                     W. Lowell Bray, Circuit Judge

                                                                                    Primary Appellate Judge

 

                                                                                   

                                                           

                                                                                    ____________________

                                                                                    Daniel D. Diskey

                                                                                    Circuit Judge

 

                                                                                    ______________________

                                                                                    Stanley R. Mills

                                                                                    Circuit Judge

 

Copies furnished to:

Office of the Public Defender

Office of the State Attorney

 

 

 

 

 



[1] State v. Jano,  524 So. 2d 660 (Fla. 1988) "The essential elements necessary to fall within the excited utterance exception are that (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."