County Criminal Court: CRIMINAL LAW – Evidence – hearsay & prior conviction – The trial court erred in allowing a law enforcement officer to testify, over objection, that dispatch sent him to a “burglary in progress”. The trial court also erred in allowing the Appellant’s criminal history to go before the jury under the circumstances. A defense witness testified as to certain statements made by Appellant. Those statements were not assertions and were not hearsay. A State witness had previously placed the essence of those statements in evidence; the statements were not disputed and were not exculpatory. Even if the statements were hearsay and the credibility of Appellant could therefore be attacked pursuant to Florida Statute § 90.806, the admission of evidence of Appellant’s criminal history was still too prejudicial. § 90.403, Fla. Stat. (1976).– Reversed and remanded. Carl Singleton v. State, Appeal No.08-00060APANO (Fla. 6th Cir.App.Ct. August 12, 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
v. Appeal No. CRC 08-00060 APANO
Opinion filed _____________________.
Appeal from a judgment and sentence
entered by the Pinellas County Court
County Judge James V. Pierce
Peter A. Sartes, Esquire
Attorney for Appellant
Office of the State Attorney
Attorney for Appellee
ORDER AND OPINION
THIS MATTER is before the Court on Appellant, Carl Singelton’s, appeal from a conviction, after a jury trial, of Obstructing or Resisting Officer Without Violence, a first degree misdemeanor, in violation of § 843.02 Fla. Stat. (2006). After review of the record, the initial Anders briefs and the subsequently ordered briefs, this Court reverses the judgment and sentence.
Factual Background and Trial Court Proceedings
On April 9, 2008, Appellant, Carl Singelton, was convicted after
a jury trial, of Obstructing or Resisting an Officer Without
Violence. On January 23, 2008 Deputy John Logan, Pinellas County Sheriff’s
Office was dispatched to a “burglary in progress” at
“steps back and yells at me, why the -- excuse my language – f*** do I have to stay away from my child? And so I back up a little bit and he just kept coming towards me and he gets right in my face and … I stepped back, and again, he just kept coming towards me. He just got right in my face and thumped his chest against mine and again yelled at me, why the f*** do I got to stay away from my child?”
At that point, the deputy told Mr. Singelton he was under arrest for battery on a law enforcement officer. Deputy Logan further testified that Mr. Singelton then “put his hands in the air saying, what the f*** you going to do, tase me? Started walking away from me.” Deputy David Vinson testified in the State’s case that Mr. Singelton was “yelling, asking what was going on, why is this happening, stuff like that.” In the defense case, the female involved in the argument, Rebekah Diane Fawcett, testified to the following statements of Mr. Singelton:
And then Carl asked why was he being ordered to separate from his son and being ordered to get to the ground.
Carl was asking why was he being ordered to the ground.
Why do I got to get away from my son? Why do I have to be ordered to the ground or -- not sure if he said ordered to the ground, but I know he asked why he was being ordered to the ground.
After this testimony the State moved to admit into evidence the Appellant’s prior history of felony convictions based upon Ms. Fawcett’s testimony of Mr. Singelton’s statements. The trial court allowed the Appellant’s prior criminal history to be placed before the jury.
There are two issues presented in this appeal. First whether the trial court erred in allowing the deputy to testify, over objection, that he was dispatched to a “burglary in progress”. Second, whether the trial court erred in allowing the Appellant’s criminal history to be placed before the jury?
Standard of Review
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, 3
So.3d 1204 (
Hearsay Evidence Generally
is an out-of-court statement offered to prove the truth of the matter asserted.
Section 90.801(1)(c), Fla.Stat.
(1989). A statement is “an oral or written assertion.” Section 90.801(1)(a) 1, Fla.Stat. (1989). ‘If an
out-of-court statement is offered in court to prove the truth of the facts
contained in the statement, it is hearsay. If an out-of-court statement is not
offered to prove the facts contained in the statement, it is not hearsay.’”
Evidence of a Defendant’s Prior Criminal Convictions
defendant who chooses not to testify but who succeeds in getting his or her own
exculpatory statements into evidence runs the risk of having those statements
impeached by felony convictions. Huggins v. State, 889 So.2d 743, 756 (
The Present Case
1. Testimony Regarding a Police Dispatch. The trial court erroneously
admitted into evidence the hearsay testimony of the
deputy that he was dispatched to a “burglary in progress”.
If it was offered as proof that there was a
burglary in progress it was hearsay. If
it was offered to show why the deputy had contact with Mr. Singelton it was irrelevant and inadmissible. See Conley
v. State, 620 So.2d 180, 182 (
of Appellant’s Prior Criminal Convictions. The Appellant’s statements that were
admitted through the testimony of Ms. Fawcett were basically why was he being ordered to
separate from his son and being ordered to get on the ground. Those statements are not assertions and are
not hearsay. See Lark, 617
So.2d at 788 -789. Moreover, the essence of those statements had previously been placed in
evidence by a State witness; the statements were not disputed and were
not exculpatory. If it is assumed that
the statements are hearsay and that the credibility of Mr. Singelton may therefore
be attacked pursuant to Florida Statute § 90.806, then the admission
of evidence of Mr. Singelton’s criminal
history is still too prejudicial. § 90.403,
After through examination of the entire record, including the permissible evidence on which the jury could have legitimately relied and the impermissible testimony which might have influenced the jury verdict, this Court cannot say beyond a reasonable doubt that the errors did not affect the verdict. There is a reasonable possibility that the errors contributed to the conviction. The errors were not harmless. The judgment and sentence of the trial court should be reversed and the case remanded for a new trial.
IT IS THEREFORE ORDERED that the judgment and sentence of the trial court are reversed and the case is remanded to the trial court for a new trial.
Original opinion entered by Circuit Judges Michael F. Andrews, Raymond O. Gross, & R. Timothy Peters.
cc: Honorable James V. Pierce
Office of the State Attorney
Peter A. Sartes, Esquire