Demetrice Armicle McNeal v. State of Florida , 140 So. 3d 991 ( 2014 )

Supreme Court of Florida
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No. SC13-650
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DEMETRICE ARMICLE MCNEAL,
Petitioner,
vs.
STATE OF FLORIDA,
Respondent.
[June 5, 2014]
QUINCE, J.
We have for review McNeal v. State, 109 So. 3d 268, 271 (Fla. 1st DCA
2013), in which the First District Court of Appeal found that satisfying the
foundational requirements under the past recollection recorded exception to
hearsay need not come from the declarant’s testimony. 1 At the time that the First
1. The past recollection recorded exception provides as follows:
A memorandum or record concerning a matter about which a witness
once had knowledge, but now has insufficient recollection to enable
the witness to testify fully and accurately, shown to have been made
by the witness when the matter was fresh in the witness’s memory and
to reflect that knowledge correctly. A party may read into evidence a
memorandum or record when it is admitted, but no such memorandum
or record is admissible as an exhibit unless offered by an adverse
District issued its decision below, Polite v. State, 41 So. 3d 935 (Fla. 5th DCA
2010), quashed, 116 So. 3d 270 (Fla. 2013), was pending review in this Court. We
have jurisdiction. See art. V, § 3(b)(3), Fla. Const.
We stayed proceedings in this case pending disposition of Polite, in which
we held that the past recollection recorded exception requires the witness to
indicate that the events were fresh in his or her mind when the statement was
made, as well as attest to the accuracy of the memorandum or record. Polite v.
State, 116 So. 3d 270, 278 (Fla. 2013). We then issued an order in the instant case
directing Respondent to show cause why this Court should not accept jurisdiction,
summarily quash the First District’s decision in McNeal, and remand for
reconsideration in light of our decision in Polite. Respondent filed a response
acknowledging that the victims in both the instant case and in Polite did not vouch
at trial for the accuracy or correctness of their written statements. Respondent
contends, however, that this Court should decline to accept jurisdiction because the
district court below found that even if the publishing of the statement was error, it
was harmless. Petitioner filed a reply, asserting that the decision below should be
quashed and that we should remand because the district court applied an incorrect
standard in finding that the error was harmless.
party.
§ 90.803(5), Fla. Stat. (2013).
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Upon consideration of the Respondent’s response, and Petitioner’s reply
thereto, we grant the petition for review, quash the district court’s decision in
McNeal, and remand this case to the First District for reconsideration in light of
this Court’s decision in Polite, and a proper harmless error analysis under State v.
DiGuilio, 491 So. 2d 1129 (Fla. 1986), if applicable.
It is so ordered.
POLSTON, C.J., and PARIENTE, LEWIS, LABARGA, and PERRY, JJ., concur.
CANADY, J., concurs in result.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
Application for Review of the Decision of the District Court of Appeal – Direct
Conflict of Decisions
First District – Case No. 1D11-6875
(Escambia County)
Diana L. Johnson of Johnson and Lufrano, P.A., Jacksonville, Florida,
for Petitioner
Pamela Jo Bondi, Attorney General, Trisha Meggs Pate, Bureau Chief, Criminal
Appeals, and Donna Antoinette Gerace, Assistant Attorney General, Tallahassee,
Florida,
for Respondent
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