County Criminal Court: CRIMINAL LAW – Jury Trial/Evidence – hearsay – trial court did not err in admitting officer’s statements of what accuser reported to officer – statements were not offered to prove truth of the matter but rather to show effect on listener – statements were relevant as State was required to show that officer was engaged in lawful execution of a legal duty – Conviction affirmed. Thomas v. State, No. 02-17298 (Fla. 6th Cir. App. Ct. June 16, 2003).

County Criminal Court: CRIMINAL LAW – Jury Trial/Evidence – admission into evidence of post-arrest statements – trial court did not err in admitting post-arrest statements into evidence – statements were relevant as State was required to show that defendant was continually engaged in escape behavior – statements were properly admitted as admissions or statements against interest – even if statements were improper, the effect was harmless in light of other evidence adduced – Conviction affirmed. Thomas v. State, No. 02-17298 (Fla. 6th Cir. App. Ct. June 16, 2003).

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

APPELLATE DIVISION

JAMES R. THOMAS,

Appellant,

vs. APPEAL NO: CRC02-17298CFANO

STATE OF FLORIDA,

Appellee.

/

Opinion filed June _____, 2003.

Appeal from a decision of the

County Court for Pinellas County;

Sonny Im, Judge.

Maribeth L. Wetzel, Esquire

Attorney for Appellant.

Erin K. Barnett, Esquire

Assistant State Attorney.

ORDER AND OPINION

In the lower court, Thomas was convicted by jury verdict of resisting an officer without violence, after which he was sentenced to twelve (12) months county jail. His argument on appeal is twofold. First, he argues that the trial court erred in permitting the State to elicit hearsay testimony from Officer Adam Geissenberger. Second, he maintains that the trial court erred in permitting the State to introduce several of his post-arrest statements. We affirm.

The following facts were adduced at trial. Thomas was initially approached by an officer at a 7-Eleven convenience store, apparently in response to a 911 call that he placed concerning an individual named Ryan Van Buren, who allegedly pointed a gun in his face. Meanwhile, a second officer, Officer Geissenberger, responded to the residence of Tiffany Walker, who separately complained of a residential burglary. Upon discovering a connection between Thomas and Walker, law enforcement subsequently escorted Thomas back to Walker’s residence, after which Walker and Van Buren reported that Thomas stole Walker’s vehicle. Officer Geissenberger, having concluded that he had probable cause for grand theft auto, arrested Thomas.

Subsequently, Thomas, after being arrested and while sitting handcuffed in the rear of the police cruiser, called Walker inside her home with his cellular phone while law enforcement was still interviewing Walker in concluding their investigation. On the ride back to the stationhouse, Thomas attempted to escape out of the police cruiser through a window. After the escape was averted by law enforcement, he complained that his ankle was broken, which prompted a visit by fire rescue. Further, Thomas subsequently managed to maneuver out of the hobble restraint that was placed on his person to restrict his mobility. Because the Pinellas County Jail would not admit Thomas without a medical clearance, law enforcement was required to accompany him to Northside Hospital for x-rays. While at the hospital, Thomas made several statements to law enforcement.

In order to sustain its burden at trial, the State was required to prove that a law enforcement officer was engaged in the lawful execution of a legal duty, and that Thomas resisted, obstructed, or opposed that officer. § 843.02, Fla. Stat. (2001); Slydell v. State, 792 So. 2d 667, 671 (Fla. 4th DCA 2001). In an effort to establish the former, the State elicited testimony from Officer Geissenberger, who testified that Walker reported that Thomas “had stolen her car.” Inasmuch as the State was required to prove that Officer Geissenberger was engaged in the lawful execution of a legal duty, Thomas contends that Officer Geissenberger’s testimony was hearsay, offered to prove the truth of the matter asserted. Conversely, the State argues that his testimony was nonhearsay, as it was not offered to prove the truth of the matter but merely to show its effect on the listener.

Based on our review of the record, we find no abuse of discretion in the trial judge’s decision to permit Officer Geissenberger’s testimony concerning the substance of Walker’s accusations. His testimony was not hearsay because it was not offered to prove that Thomas in fact committed the grand theft auto. State v. Baird, 572 So. 2d 904, 907 (Fla. 1990) (noting that if testimony is offered for a purpose other than to prove the truth of the matter asserted, it is by definition not hearsay). Rather, it was merely offered to show its effect on the listener – that Officer Geissenberger responded to Walker’s accusations by investigating the possible commission of a crime. Breedlove v. State, 413 So. 2d 1, 7 (Fla. 1982). The investigation of a crime by a police officer is an execution of a lawful duty. Francis v. State, 736 So. 2d 97, 99 n.l (Fla. 4th DCA 1999). Although Thomas was never charged with the grand theft auto for which he was arrested, “[i]t is not necessary that the underlying criminal activity providing the basis for the arrest result in a charge and conviction.” Jay v. State, 731 So. 2d 774, 775 n.1 (Fla. 4th DCA 1999).

We note that the trial judge gave defense counsel the option of keeping out the contents of Walker’s statement. However, defense counsel declined that option prior to trial. We also recognize the line of cases precluding the admission of such statements in certain contexts. See Conley v. State, 620 So. 2d 180, 183 (Fla. 1993) (discussing the inherent danger in admitting otherwise inadmissible statements before the jury to show the sequence of events or effect on listener, and holding that the inherently prejudicial effect of admitting into evidence an out-of-court statement relating accusatory information to establish the logical sequence of events generally outweighs the probative value of such evidence); State v. Baird, 572 So. 2d 904 (Fla. 1990) (noting that the better practice is to have the officer testify that he was operating on “information received” without going into the details of the accusatory information); see also Keen v. State, 775 So. 2d 263 (Fla. 2000). In each of these cases, the sequence of events or effect on the listener was not a material issue. Conversely, here, it was a material issue because the State was required to show that Officer Geissenberger was engaged in the lawful execution of a legal duty.

Finally, according to Officer Geissenberger’s testimony at trial, Walker’s statement, together with Van Buren’s statement, constituted probable cause for Thomas’ arrest. The record reflects that defense counsel argued that these statements were insufficient to form probable cause for the arrest. He argued this to the jury, which rejected it by virtue of the guilty verdict. Further, he argued this to the trial judge on motion for judgment of acquittal, which was denied. Thomas has not appealed the trial judge’s denial of his motion for judgment of acquittal. For the foregoing reasons, this claim is without merit.

As for Thomas’ second issue, that the trial court improperly permitted the State to admit several of his post-arrest statements, we similarly find no error. At trial, Officer Geissenberger testified that Thomas, at the hospital, “began to speak candidly about his experiences and whatnot. He made numerous statements about flight, attempted flight, what would happen if he did run.” Specifically, according to Officer Geissenberger, Thomas uttered the following statements (in no particular order):

“When I run, you’ll never catch me. I’m so slick that I have a driver’s license and a social security number in another name. I’ll move to another state and you will never find me. I will not back down from you, other officers, the judge, the jury, or anything. If I wanted to escape from you two, I could right. I will get revenge, not on officers. That’s all I’m going to say.” [Thomas also requested that Officer Geissenberger give him another chance to escape by removing the leg irons from his person.]

Prior to trial, the State argued that the statements were relevant because they: (1) “showed his continual attempt to escape and resist arrest and get out of the police’s custody”; (2) “in addition, each of these statements is continual and in the continual stream of what happened”; (3) “they were admissions to his resisting and to his attempt to escape”; and (4) “in these statements he was telling the officers, you know, give me a head start. I can do this. Like I’ve been trying to all night.”

Conversely, defense counsel argued that “none of these statements are admissions to a fact which would prove the resisting arrest without violence,” and that the statements were irrelevant under section 90.401 and prejudicial under section 90.403. On appeal, Thomas argues that the statements were uttered long after his arrest and were therefore immaterial; in support of this argument, he cites to Carillo v. State, 727 So. 2d 1047 (Fla. 2d DCA 1999).

In Carillo, an altercation arose between the defendant and his girlfriend in their residence, during which the defendant raised a chair above his head in a threatening manner. Id. After the argument dissipated and the defendant placed the chair on the ground, his girlfriend left the house. Id. An hour later, the girlfriend returned home with law enforcement, who found the defendant sitting calmly on the couch watching television. Id. After the defendant was arrested and placed in the patrol car, he exclaimed “If I’m going to jail for this bitch, I might as well kill her.” Id. at 1048. At trial, the trial judge permitted the State to introduce this statement, along with one other statement. Id. On appeal, the Second District reversed, finding “[b]ecause Carrillo's threats and disruptive behavior in the police car were so far removed in time from the incident with [his girlfriend], they had little probative value as to his intent or state of mind at the earlier time.” Id. The Second District added “[f]urthermore, the two incidents were not inextricably intertwined.” Id.

We find Carillo to be distinguishable from the case at bar. Whereas in Carillo the statements were made an hour after the argument had dissipated, here, the offense of resisting was continual. During and subsequent to his arrest, Thomas committed several acts that were inextricably intertwined, as described above. His statements in the hospital were part and parcel with his resisting and his attempts to escape, were indicative of his state of mind, and were uttered close in time to his last act of resistance and/or his last attempt to escape.

In conclusion, after reviewing the statements in context, we find that the statements were properly admitted as admissions or statements against interest, and we agree with the trial judge who concluded that the statements were against self-interest and “certainly show[ed] motivation, [and] intent on the part of the defendant.” § 90.803(18), Florida Statutes; State v. Elkin, 595 So.2d 119 (Fla. 3d DCA 1992); Delacruz v. State, 734 So. 2d 1116, 1122 (Fla. 1st DCA 1999). We reject Thomas’ argument that the statements were inadmissible simple because they were uttered post-arrest. We find no requirement in the Evidence Code or in case law that requires the State to show that the statements were uttered pre-arrest.

Finally, even if the statements should not have been admitted, we would find their admission to be harmless error in light of the other evidence adduced at trial. Gore v. State, 719 So. 2d 1197 (Fla. 1998) (holding that a harmless error test should be employed in deciding whether to reverse a conviction based on the improper admission of evidence); Steverson v. State, 695 So. 2d 687 (Fla. 1997) (same).

Affirmed.

DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this _______ day of June, 2003.

____________________________________

JOHN A. SCHAEFER, Circuit Judge

____________________________________

W. DOUGLAS BAIRD, Circuit Judge

____________________________________

NANCY MOATE LEY, Circuit Judge

cc: Maribeth L. Wetzel, Assistant Public Defender

Erin K. Barnett, Assistant State Attorney

Staff Attorney/mec