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
ROBERT LEE STUNZIG, JR.
v. Appeal No. CRC 07-00057 APANO
Opinion filed April 6, 2009.
Appeal from a judgment and sentence
entered by the Pinellas County Court
County Judge Susan P. Bedinghaus
Attorney for Appellant
Office of the State Attorney
Attorney for Appellee
ORDER AND OPINION
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.
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 (
To determine if a mistake was harmful, the appellate
court must perform a harmless error analysis.
Hojan v. State, 2009 WL 485088, 3, 34
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 (
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
excited utterances,  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.
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  at 251 [(
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
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
The Propriety of the Prosecutor’s Closing Argument
A. Standard of
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,
B. Argument and Analysis. Appellant argues the prosecutor’s disputed statements in closing argument were improper notwithstanding there was no contemporaneous defense objection.
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
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.
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.
cc: Honorable Susan P. Bedinghaus
Office of the State Attorney
 Strong v. State, 947
So.2d 552, 557 (
Garcia v. State, 492 So. 2d 360, 365 (