Richard Summerall v. State of Florida , 171 So. 3d 150 ( 2015 )

IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
RICHARD SUMMERALL, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D14-1256
STATE OF FLORIDA,
Appellee.
_____________________________/
Opinion filed July 14, 2015.
An appeal from the Circuit Court for Suwannee County.
David W. Fina, Judge.
Nancy A. Daniels, Public Defender, and Gail E. Anderson, Assistant Public
Defender, Tallahassee, for Appellant.
Pamela Jo Bondi, Attorney General, and Lauren Brudnicki, Assistant Attorney
General, Tallahassee, for Appellee.
SWANSON, J.
This is a direct criminal appeal from a judgment and sentence for burglary
with assault while armed and resisting an officer without violence. Appellant has
argued two points for reversal. We find merit in appellant’s argument under Point
II and reverse and remand for a new trial. As a result, we need not address Point I.
Under Point II, appellant challenges the trial court’s decision to permit the
victim, Stacay Hawkins, to testify regarding the content of telephone calls she
participated in between herself and appellant’s mother. Just prior to the night of
the incident leading to appellant’s charges, Hawkins had ended a six-month
relationship with appellant. This left appellant infuriated. On the evening of
August 19, 2013, appellant arrived at Hawkins’ home and knocked on her front
door. Hawkins asked who was there, and when she learned it was appellant, she
asked him to wait while she got dressed. Instead, she called the police and ushered
her children into the back room. When she turned around, however, she saw her
seventeen-year-old son, Stacie, walking into the house through the front door with
appellant in tow. Appellant angrily demanded to know where the “other man” was
hiding in the house, and proceeded to search for him. When appellant’s search
proved fruitless, Hawkins demanded he leave and walked him to the door. As
Hawkins was about to close the door, her cell phone rang and appellant slapped it
out of her hand. Hawkins tried to close the door, but appellant prevented her from
doing so by placing his foot in the doorway. He told Hawkins he had something
for her. When he reached into his pocket, Hawkins saw the “silver part” of a gun.
She shouted that appellant had a gun and, with the assistance of her son, managed
to shut the door. Appellant was still standing on the front porch when the police
arrived.
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During her testimony at appellant’s trial, Hawkins revealed that prior to
appellant’s arrival at her home, she received a telephone call from his mother,
Mary Summerall. When the prosecutor asked what Ms. Summerall said to her,
defense counsel objected on the basis of hearsay. The prosecutor responded that
Ms. Summerall’s statement was not being offered for the truth of the matter
asserted but for “the effect on the listener,” which she claimed was a “material
element.” The trial court overruled the objection and Hawkins was permitted to
testify that Ms. Summerall told her to call the police because appellant was in the
yard with a gun and had told her he was going to Hawkins’ house to put four
bullets in her head. Hawkins further testified that Ms. Summerall called a second
time, and, again, over defense objection, Hawkins was allowed to testify to what
she said. According to Hawkins, Ms. Summerall told her to call the police because
appellant was going to shoot her and was on his way over to her house.
We agree with appellant’s argument that the testimony concerning Mary
Summerall’s calls constituted hearsay as defined in section 90.801(1)(c), Florida
Statutes. In Keen v. State, 775 So. 2d 263, 274 (Fla. 2000), the Florida Supreme
Court observed, “[w]hen the only possible relevance of an out-of-court statement is
directed to the truth of the matters stated by the declarant, the subject matter is
classic hearsay even though the proponent of such evidence seeks to clothe such
hearsay under a nonhearsay label.” See also Conley v. State, 620 So. 2d 180, 183-
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84 (Fla. 1993) (holding trial court erred in permitting a police officer to testify as
to the contents of a dispatch he heard over his radio to the effect that a man was
chasing a girl with a gun, emphasizing that “[r]egardless of the purpose for which
the State claims it offered the evidence, the State used the evidence to prove the
truth of the matter asserted”).∗
We also agree with appellant that the state has failed to carry its burden of
proving the error was harmless beyond a reasonable doubt. The state argues the
error was harmless due to the “overwhelming evidence” against appellant. That is
not a correct statement of the law as concerns the harmless error analysis. The
Florida Supreme Court has cautioned that the harmless error test “is not a
sufficiency-of-the-evidence, a correct result, a not clearly wrong, a substantial
evidence, a more probable than not, a clear and convincing, or even an
overwhelming evidence test”; instead, the “focus is on the effect of the error on the
trier-of-fact.” State v. DiGuilio, 491 So. 2d 1129, 1139 (Fla. 1988). Applying that
test, we conclude it cannot be shown that the admission of Mary Summerall’s
statements did not have an effect on the jury. Such statements were highly
∗
Even were we to conclude that Ms. Summerall’s statements were not hearsay,
the contents of the statement[s] were not relevant to establish a logical sequence
of events, nor was the reason why officers arrived at the scene a material issue in
the case. . . . . [T]he inherently prejudicial effect of admitting into evidence an
out-of-court statement relating accusatory information to establish the logical
sequence of events outweighs the probative value of such evidence. Such practice
must be avoided.
Conley, 620 So. 2d at 183 (citations and internal quotation marks omitted).
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accusatory and could only have been viewed by the jury as such, and their
admission was “‘inherently prejudicial.’” Conley, 620 So. 2d at 183 (quoting State
v. Baird, 572 So. 2d 904, 907 (Fla. 1990)). For this reason, therefore, we hold the
trial court’s error was not harmless and appellant is entitled to a new trial.
REVERSED and REMANDED for further proceedings consistent with this
opinion.
ROWE, J., CONCURS IN RESULT ONLY; WOLF, J., CONCURS WITH
OPINION.
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WOLF, J., Concurring.
I concur in the result in this case. The victim’s testimony concerning the
mother’s statements of what appellant told her was predominantly being
introduced for the truth of the matter asserted: “he was going to put four bullets in
her head.” This testimony constituted inadmissible hearsay. See Kennedy v. State,
385 So. 2d 1020 (Fla. 5th DCA 1980) (holding that a statement of murder victim
that the defendant intended to kill the victim in the future constituted inadmissible
hearsay).
The statements made shortly before the assault took place, however, are
relevant and material to demonstrate appellant’s intent to threaten to do violence to
the victim and whether the victim had a well-founded fear of violence. See
Castanon v. State, 39 Fla. L. Weekly D1600 (Fla. 4th DCA July 30, 2014) (holding
that threatening statements that the defendant made immediately after a burglary
were relevant to show his intent to commit an assault during the burglary).
Therefore, if the mother herself had testified as to the defendant’s statements which
she conveyed to the victim or if appellant had directly conveyed the threats to the
victim, the evidence would be admissible as an admission under section
90.803(18), Florida Statutes (2014). See Christopher v. State, 583 So. 2d 642 (Fla.
1991) (holding that testimony of defendant’s daughter that defendant had told her
that he and victim had fought was admissible as an admission).
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