County Criminal Court: CRIMINAL LAW – Evidence – admissibility – excited utterance.  CRIMINAL PROCEDURE – Prosecutorial comment.  Trial court has wide discretion concerning admissibility of evidence.  The rules of evidence limit that discretion.  If trial court mistakenly allows the introduction of inadmissible evidence, the appellate court must perform a harmless error analysis.  Statements given to officers under stressful situations can be excited utterances.  Such an excited utterance can be testimonial hearsay involving right of confrontation issues.  A specific contemporaneous objection citing the violation of the right of confrontation is necessary to preserve a Crawford challenge.  In the present case the testimony introduced in error was duplicated by the testimony of others and, with one exception, was not in dispute.  The error was harmless.  In closing argument, attorneys are required to refrain from expressing personal opinion as to the credibility of a witness.  However an attorney is allowed to argue reasonable inferences from the evidence including the credibility of witnesses so long as the argument is based on the evidence.  Trial court’s judgment and sentence affirmed.  Stunzig v. State, No. CRC07-00057APANO (Fla. 6th Cir.App.Ct. April 3, 2009).

 

 

NOT FINAL UNTIL TIME EXPIRES FOR REHEARING

AND, IF FILED, DETERMINED

 

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA IN AND FOR PINELLAS COUNTY

 

 

ROBERT LEE STUNZIG, JR.

 

            Appellant,

 

v.                                                                                                                                          Appeal No. CRC 07-00057 APANO

                                                                        UCN522006MM035217XXXXNO

 

STATE OF FLORIDA

 

            Appellee.

__________________________________/

 

 

Opinion filed April 6, 2009. 

 

Appeal from a judgment and sentence

entered by the Pinellas County Court

County Judge Susan P. Bedinghaus

 

Lydia B. Barack, Esquire

Attorney for Appellant

 

Office of the State Attorney

Attorney for Appellee

 

 

ORDER AND OPINION

 

            PETERS, Judge.

THIS MATTER is before the Court on Appellant, Robert Lee Stunzig’s, appeal from a conviction, after a jury trial, of Battery, a first degree misdemeanor, in violation of § 784.03 (1) Fla. Stat. (2006).  After review of the record and the briefs, this Court affirms the judgment and sentence.

Factual Background and Trial Court Proceedings

 On December 12, 2006, Appellant, Robert Lee Stunzig, Jr. was arrested and charged with domestic battery against his girlfriend, Fallon Burgess.  The case proceeded to jury trial on May 31, 2007.  At trial, it was established that on December 12, 2006, Mr. Stunzig and Ms. Burgess attended a party. They left the party intending to go to a bar.  Appellant was driving.  He and Ms. Burgess began or continued an argument that resulted in Mr. Stunzig pulling the car to the side of a road.  Ms. Burgess got out of the vehicle.  A loud argument continued at roadside near an apartment building where two separate witnesses resided. 

In the prosecution’s case, the first of these two witnesses, Mr. Sidney Saccucci testified he was at home and heard a female screaming, among other things, “stop hitting me.”  Mr. Saccucci opened his front door and saw Mr. Stunzig repeatedly punching a Ms. Burgess in the face.  Mr. Saccucci stated that Appellant struck the victim approximately twelve times.  Mr. Saccucci saw the victim repeatedly attempt to stand up, only to be pushed to the ground by Mr. Stunzig.  Mr. Saccucci called the police, left his apartment and approached Appellant and the victim while the battery was ongoing.  Mr. Saccucci ordered Mr. Stunzig to stop battering the victim.  Appellant complied and then got in his vehicle, backed the vehicle “across the street, then sat there and watched her walk down the street.”  “Then he came back and got her cell phone, so that’s when the cops came.”  Mr. Stunzig was still in his car when the police arrived.

The second of these two witnesses, Ms. Jody Virden, testified that she was home when she heard a female screaming.  Ms. Virden stated that she heard Appellant shouting, “you knew he was going to be there.”  The female screamed in response, “No, I didn’t.  No, I didn’t.”  Ms. Virden looked out of her apartment and identified Mr. Stunzig as the person standing over the victim, punching and kicking her.  Ms. Virden called 911.  Ms. Virden saw the victim get up and swing her purse at Appellant because Appellant “came at her again.”  Ms. Virden testified “[a]nd he did get her on the ground again.  And then that’s when my neighbor came running out, screaming, That’s enough.  That’s enough.  That’s enough.”  Mr. Stunzig got in his vehicle.  Ms. Burgess was on the sidewalk, crying, screaming, Please come back.  Don’t leave me.  Come back.”  Ms. Burgess then walked down the street, and the police arrived.

At a hearing out of the presence of the jury, Officer Noble Katzer of the Pinellas Park Police Department, testified that the maximum amount of time between the battery and the time he spoke with Ms. Burgess was eight minutes.  Upon arrival, Officer Katzer briefly spoke with witnesses before speaking with the victim.  Ms. Burgess “was hysterical, crying, just frantic.”  Victim was “crying vehemently, not just lightly crying.”  Officer Katzer later testified to the jury:

Well, I had asked her what happened.  And she told me that her and Mr. Stunzig were at a party for her work, and everything was going fine until he started accusing her of trying to hook up with somebody else at the party.  So they started arguing.  They left the party.  They started arguing and continued arguing in the car, at which point Mr. Stunzig pulled the car over.  She got out of the car and started walking away, walking towards their –

 

So they started walking towards their apartment.  He started following her with the vehicle, pulled the vehicle up behind her, got out of the car.  They started arguing, and he started punching her.

 

This testimony was introduced into evidence as an excited utterance over Appellant’s objection. Ms. Burgess did not testify at the trial.  When the prosecution rested, Appellant moved for judgment of acquittal, which was denied.

            During Mr. Stunzig’s case, he testified that on December 12, 2006, he was driving his girlfriend, Fallon Burgess, from a party to a bar.  Mr. Stunzig and Ms. Burgess got into an argument.  Mr. Stunzig felt Ms. Burgess “was really promiscuous”, “flirting with other guys”, and “she was wearing her attire in a way that was very promiscuous”.  The argument in the car “got way out of hand and escalated to the point that I felt that it was a danger for me to continue driving, that’s when I stopped my vehicle.”  Appellant testified he stopped the car about two-hundred yards from the bar, the victim got out, and he followed her.  There was a loud argument between the two, with raised voices and profanity.  Mr. Stunzig stated that after he caught Ms. Burgess, she hit him repeatedly with a purse and by slapping him with her hands.  Appellant stated that he grabbed her hands to protect himself.  Mr. Stunzig testified Ms. Burgess was intoxicated and became violent with him, causing him to try to stop her from hitting him.  He testified that she fell on the ground after stumbling and that he never struck her.

During closing argument, the prosecutor made the following statements: 

In addition, both of them were perfectly honest when they were on the stand, and they said, “Yeah, we saw him, you know, lifting up his arm and punching someone.”

 

I submit to you all the State’s witnesses were honest and straightforward.  Nobody was trying to hide anything. 

 

The Appellant made did no contemporaneous objection to either statement.  The jury found Mr. Stunzig guilty of misdemeanor battery. 

Issues

            Appellant presents three issues.  The first two will be discussed in this opinion.  The issues are; first, whether the trial court erred in admitting into evidence at trial, as an excited utterance, the victim’s hearsay statements made to a police officer.  Second, whether certain statements in closing argument by the prosecutor were improper.  Third, whether the Appellant’s Motion for Judgment of Acquittal should have been granted.

The Admission of Victim’s Hearsay Statements to Law Enforcement

A. Standard of Review.  A trial court has wide discretion concerning the admissibility of evidence, and, in the absence of an abuse of discretion, a ruling regarding admissibility will not be disturbed. Jent v. State, 408 So.2d 1024, 1029 (Fla. 1981); See Williams v. State, 967 So.2d 735, 747-48 (Fla.2007), cert. denied, --- U.S. ----, 128 S.Ct. 1709, 170 L.Ed.2d 519 (2008); Johnston v. State, 863 So.2d 271, 278 (Fla.2003). That discretion, however, is limited by the rules of evidence. Johnston, 863 So.2d at 278.  If the trial court mistakenly allows the introduction of inadmissible evidence it will not be reversed if the error was harmless.

To determine if a mistake was harmful, the appellate court must perform a harmless error analysis.  Hojan v. State,  2009 WL 485088, 3, 34 Fla. L. Weekly S256 (Fla. 2009).  The harmless error 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. See Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824,  828, 17 L.Ed.2d 705 (1967).  If the appellate court cannot say beyond a reasonable doubt that the error did not affect the verdict, then the error is by definition harmful.  State v. Lopez, 974 So.2d 340, 351 (Fla. 2008).  Application of the test requires an examination of the entire record by the appellate court including a close examination of the permissible evidence on which the jury could have legitimately relied, and in addition an even closer examination of the impermissible evidence which might have possibly influenced the jury verdict.  State v. DiGuilio, 491 So.2d 1129, 1134 -1135 (Fla.1986).

            B.  The “Excited Utterance” Hearsay Exception.  Florida Statute § 90.803(2) provides hearsay statements are admissible when there is a startling event or condition that causes a person to be in a state of excitement.

This Court has stated “that to qualify as an excited utterance, [a] statement must be made: (1) ‘regarding an event startling enough to cause nervous excitement’; (2) ‘before there was time to contrive or misrepresent’; and (3) ‘while the person was under the stress or excitement caused by the event.’ (citations omitted) “While an excited utterance need not be contemporaneous to the event, it must be made while the declarant is under the stress of the startling event and without time for reflection.” (citations omitted).

 

Hojan v. State, 2009 WL 485088, 2 (Fla. 2009). 

            C.  Argument and Analysis.  The Appellant argues the trial court erred by allowing into evidence, as an excited utterance, the before-described testimony by Officer Noble Katzer to the jury.

            First, are these statements an excited utterance as contemplated by the statute?  The evidence at trial in the present case established that the woman had been repeatedly battered in a loud altercation, she was “hysterical, crying, just frantic”, her comments were made about eight minutes after the 911 call and were in response to a question or prompt from law enforcement, “what happened”?  While several Florida courts have remarked in dicta that statements made in response to police questioning are, by definition, not (Cite as: 947 So.2d 552, *557)

excited utterances, [1] there is a substantial body of case authority, including a recent Florida Supreme Court Case, finding statements given to officers under stressful situations to be excited utterances.[2]

We have previously found statements given in question-and-answer exchanges by officers under similarly stressful situations to be excited utterances. See, e.g., Henyard [v. State], 689 So.2d [239] at 251 [(Fla. 1996)] (holding victim's statements made to officer at scene were excited utterances); Pope v. State, 679 So.2d 710, 713 (Fla.1996) (holding victim's statement to officer during questioning at scene was an excited utterance).

 

Hojan,  2009 WL 485088 at 2.  Given the circumstances of the present case, we conclude the statements of the victim were an excited utterance. 

            Second, there is a Confrontation Clause issue.  An excited utterance during a police interview is testimonial hearsay when the circumstances objectively indicate that the primary purpose of the interrogation is to establish facts relevant to a future criminal prosecution.  Davis v. Washington, 547 U.S. 813, 821, 126 S.Ct. 2266, 2273, 165 L.Ed.2d 224 (2006); State v. Lopez, 974 So.2d 340, 345 (Fla. 2008).  The victim’s statements in the present case were testimonial hearsay whose admission in evidence, under the present circumstances, violated the Mr. Stunzig’s right of confrontation.  Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).  However, a specific contemporaneous objection citing the violation of the right of confrontation is necessary to preserve a Crawford challenge and there was none in the present case.  Schoenwetter v. State, 931 So.2d 857, 871 (Fla. 2006), cert. denied, 549 U.S. 1035, 127 S.Ct. 587, 166 L.Ed.2d 437 (2006).  The issue was not preserved for appeal.

            Third, we will assume the issue was preserved and address the question of harmless error.  Where the evidence introduced in error was not the only evidence on the issue to which the improper evidence related the introduction can be harmless. Hojan, 2009 WL 485088 at 3; See  Hutchinson v. State, 882 So.2d 943, 952-53 (Fla. 2004) and Henyard, 689 So.2d at 251.   In the present case, each factual detail of the brief testimony introduced in error was duplicated by the testimony of others.  More importantly all of those factual details, with one exception, were simply not in dispute.  The only disputed portion of the testimony was “he started punching her”.   On that issue both of the independent eye witnesses to the altercation, Mr. Saccucci and Ms. Virden, offered clear and consistent testimony that Mr. Stunzig repeatedly battered Ms. Burgess.  In contrast, Mr. Stunzig’s testimony raised no significant issues of fact, save one.  He said simply he never struck Ms. Burgess.  After through examination of the entire record, including the permissible evidence on which the jury could have legitimately relied and the short impermissible testimony which might have influenced the jury verdict, this Court concludes there is no reasonable possibility that the error contributed to the conviction.  The error was harmless.

The Propriety of the Prosecutor’s Closing Argument

A. Standard of Review.  Allegedly improper prosecutorial comments in closing argument are not cognizable on appeal absent a contemporaneous objection.  The only exception to this blanket procedural bar is where the comments constitute fundamental error, defined as error that “reaches down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.  McDonald v. State, 743 So.2d 501, 505 (Fla.1999); Urbin v. State, 714 So.2d 411, 418 (Fla. 1998).

            B. Argument and Analysis.  Appellant argues the prosecutor’s disputed statements in closing argument were improper notwithstanding there was no contemporaneous defense objection.

            In argument, attorneys are required to refrain from expressing personal opinion as to the credibility of a witness.  Rule 4-3.4 (e), Rules Regulating The Florida Bar; Miller v. State, 926 So.2d 1243 (Fla. 2006).  However an attorney is allowed to argue reasonable inferences from the evidence (Cite as: 926 So.2d 1243, *1255)

and to argue credibility of witnesses or any other relevant issue so long as the argument is based on the evidence. Miller, 926 So.2d at 1254 -1255; Craig v. State, 510 So.2d 857, 865 (Fla.1987).

            Upon consideration of the prosecutor’s comments in the present case, taken both individually and collectively, we find that the allegedly improper comments do not rise to the level of fundamental error.   The challenged remarks simply argue the credibility of the two citizens who separately but simultaneously witnessed the altercation between Appellant and the female victim.  The prosecutor's remarks in this case were isolated and if error, fall well short of constituting fundamental error.

Conclusion

            This Court finds that the trial court’s admission of the victim’s hearsay statements was harmless error; that the prosecutor’s statements in closing argument did not constitute fundamental error; and the trial court did not err in denying Appellant’s Motion for Judgment of Acquittal.  The judgment and sentence of the trial court were lawfully entered and should be affirmed.

IT IS THEREFORE ORDERED that the judgment and sentence of the trial court is affirmed.

            ORDERED at Clearwater, Florida this ____ day of April, 2009.

 

 

Original opinion entered by Circuit Judges Michael F. Andrews, Raymond O. Gross, & R. Timothy Peters.  

 

 

 

 

           

cc:        Honorable Susan P. Bedinghaus

            Office of the State Attorney

            Lydia B. Barack, Esquire

                                                                                               



[1] Strong v. State, 947 So.2d 552, 557 (Fla. 3rd DCA 2006); J.A.S. v. State, 920 So.2d 759, 763 (Fla. 2d DCA 2006); Blandenburg v. State, 890 So.2d 267, 272 (Fla. 1st DCA 2004); Lyles v. State, 412 So.2d 458, 460 (Fla. 2d DCA 1982).

[2]  See Garcia v. State, 492 So. 2d 360, 365 (Fla. 1986)  (Statement made to police officer by wounded victim was admissible because “her response was spontaneous, sprang from the stress, pain and excitement of the shootings and robberies, and was not the result of any premeditated design.”); Conley v. State, 592 So. 2d 723, 727-28 (Fla. 1stDCA 1992), rev’d on other grounds, 620 So. 2d 180 (Fla. 1993)  (Statement of sexual battery victim made to police officer when he arrived at scene in which victim stated that a man called “Mad Dog” had just raped her and a statement that she made thirty-five to sixty minutes later recounting the details of the incident were admissible under section 90.803(2).); Holmes v. State, 642 So. 2d 1387, 1389 (Fla. 2d DCA 1994)  (Statements by victim at hospital about an hour and a half after the shooting when the detective described the victim as “upset” were inadmissible under section 90.803(2); Bell v. State, 847 So. 2d 558, 561 (Fla. 3d DCA 2003)  (In prosecution for attempted kidnapping, no error to admit testimony concerning statement of victim made 50 minutes after the crime where victim was hysterical and unable to speak when the police first arrived at the crime scene.); Pedrosa v. State, 781 So. 2d 470 (Fla. 3d DCA 2001)  ( “[T]he victim’s statements made to the police immediately after the incident qualified as excited utterances.); Williams v. State, 714 So. 2d 462, 463 (Fla. 3d DCA 1997)  (In domestic violence prosecution, tape of 911 call containing victim’s statement that “her boyfriend, Williams, had forced his way into her apartment and struck her on the forehead” was admissible under section 90.803(2) as an excited utterance.); Rivera v. State, 718 So. 2d 856, 857 (Fla. 4th DCA 1998)  (Victim’s statement to police officer that defendant had punched her in the lip made 15 minutes after the incident when the victim was crying hysterically was admissible under section 90.803(2) after the victim testified at trial that the defendant did not strike her and the altercation was her fault…)  See also U.S. v. Glenn, 473 F.2d 191, 194 (D.C. Cir. 1972) (“[T]he shock of the injury and the excitement of the moment have produced an utterance that is spontaneous and sincere as distinguished from one endangered by deliberation and design.  Such statements may be admissible although made in response to an inquiry.