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 FLORIDA IN AND FOR PINELLAS COUNTY

 

 

CARL SINGELTON

 

            Appellant,

 

v.                                                                                                                                          Appeal No. CRC 08-00060 APANO

                                                                        UCN: 522008MM003591XXXXNO

 

STATE OF FLORIDA

 

            Appellee.

__________________________________/

 

 

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

 

            PETERS, Judge.

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 7314 Windsor Lane, Clearwater.  Upon arrival, Deputy Logan observed some argument or altercation at a vehicle parked in front of the house.  The deputy went to the passenger side where the Appellant, Carl Singelton, was struggling with a female, Rebekah Fawcett, over a baby and the baby seat inside the vehicle. Being concerned for the safety of the child the deputy told Mr. Singelton to step away.  The deputy testified at trial in the State’s case that Mr. Singelton:

“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.

Issues

            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

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, 3 So.3d 1204 (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).

Hearsay Evidence Generally

“Hearsay 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.’” Ehrhardt, Florida Evidence, § 801.2 (1992 ed.) (footnotes omitted).  Lark v. State, 617 So.2d 782, 788 (Fla. 1st DCA 1993).

Evidence of a Defendant’s Prior Criminal Convictions

A 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 (Fla. 2004).  A party may attack the credibility of any witness, including an accused, by evidence that the witness has been convicted of a crime if the crime was punishable by imprisonment in excess of one (1) year under the law under which the witness was convicted, or if the crime involved dishonesty or a false statement regardless of the punishment.  § 90.610, Fla. Stat. (1976).  When a hearsay statement has been admitted in evidence, credibility of the declarant may be attacked and, if attacked, may be supported by any evidence that would be admissible for those purposes if the declarant had testified as a witness.  § 90.806, Fla. Stat. (1976).  Nevertheless, relevant evidence is inadmissible if “its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence.”  § 90.403, Fla. Stat. (1976); Huggins, 889 So.2d at 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 (Fla. 1993).  The inherently prejudicial effect of admitting into evidence an out-of-court statement relating accusatory information only to establish the logical sequence of events outweighs the probative value of such evidence.  State v. Baird, 572 So.2d 904, 908 (Fla.1990).

            2.  Evidence 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, Fla. Stat. (1976).  Whether Mr. Singelton actually made the statements or the truthfulness of those statements is not a disputed issue.   The credibility of the Appellant in making those statements is not an issue.  Whatever probative value the evidence of Mr. Singelton’s criminal history may have, if any, is substantially outweighed by the danger of unfair prejudice.  It was error for the trial court to allow the Appellant’s criminal history to be placed before the jury under the circumstances of the present case.

Conclusion

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.

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

 

 

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