Opinion
No. 4D21-1680
07-27-2022
Dennis Mark KOHLER, Appellant, v. STATE of Florida, Appellee.
Carey Haughwout, Public Defender, and Cynthia L. Anderson, Assistant Public Defender, West Palm Beach, for appellant. Ashley Moody, Attorney General, Tallahassee, and Jessenia J. Concepcion, Assistant Attorney General, West Palm Beach, for appellee.
Carey Haughwout, Public Defender, and Cynthia L. Anderson, Assistant Public Defender, West Palm Beach, for appellant.
Ashley Moody, Attorney General, Tallahassee, and Jessenia J. Concepcion, Assistant Attorney General, West Palm Beach, for appellee.
Gerber, J.
The defendant appeals from his conviction and sentence for driving under the influence, causing or contributing to injury to person or property. The defendant primarily argues the trial court erred in overruling his hearsay objection to the responding deputy's testimony that the victim had identified the defendant as the driver of the vehicle which had caused the crash. More specifically, the defendant argues the state did not satisfy section 90.801(2)(c), Florida Statutes (2019)’s requirement that the declarant—the victim—had been "subject to cross-examination concerning the statement." That is because the state, during the victim's earlier testimony, did not ask the victim whether she had informed the responding deputy that the defendant had been the driver of the vehicle which had caused the crash. Thus, the defendant argues, the victim was not subject to cross-examination regarding such a statement before the responding deputy later testified to the victim having made that statement.
We agree with the defendant's argument. However, we consider the trial court's error to be harmless, for two reasons: (1) the victim, during her direct examination, presented sufficient circumstantial evidence to show that the defendant was the driver of the vehicle which had caused the crash; and (2) the patrol vehicle video evidence of the defendant, while being transported to jail, showed the defendant making various spontaneous statements incriminating himself as the driver of the vehicle which had caused the crash. Thus, we affirm.
Because this is a harmless error case, we write to explain our reasoning. We will summarize the pertinent trial court proceedings before turning to our review of why the trial court erred and why the error was harmless.
The Pertinent Trial Court Proceedings
The victim testified as follows, in pertinent part. She was driving her vehicle when another vehicle making a U-turn struck her vehicle. The crash damaged her vehicle and caused her injuries. After the crash, the victim exited her vehicle. Within a few seconds, she saw the other vehicle nearby. One person was standing about an arm's length from the other vehicle's driver's side door. The victim identified the defendant in court as being that person. She testified the defendant appeared to be trying to get back inside the other vehicle, but a bystander approached and blocked the defendant from getting back inside the other vehicle. The victim then saw the bystander lean inside the other vehicle in what appeared to be an attempt to take the keys out of the other vehicle's ignition.
The victim testified that after law enforcement arrived, she told them what happened "mostly on the way to the hospital ... and ... when [she] got to the hospital." During the victim's testimony, the state never asked the victim if she had told the responding deputy that the defendant had been the other vehicle's driver. The victim also never testified she had made such a statement. After the victim testified, the trial court excused her.
The responding deputy testified next. The state asked the responding deputy if the defendant had been the other vehicle's driver. Defense counsel objected on grounds of lack of personal knowledge and hearsay. The trial court overruled the objections. The responding deputy then testified that the defendant had been the other vehicle's driver. According to the responding deputy, when he approached the defendant, the defendant was leaning up against the other vehicle's driver's side.
The state asked the responding deputy how he knew the defendant had been the other vehicle's driver. The responding deputy testified the victim had told him that the defendant had been the other vehicle's driver. Defense counsel again objected on hearsay grounds.
At sidebar, the state argued the victim's statement to the responding deputy was a statement of identification and not hearsay under section 90.801(2)(c), Florida Statutes (2019) ("A statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement and the statement is ... [o]ne of identification of a person made after perceiving the person.").
The trial court overruled the defendant's hearsay objection, finding the victim's statement to the responding deputy was a statement of identification and therefore was admissible under section 90.801(2)(c).
Despite the trial court having ruled, defense counsel nevertheless continued arguing, and the following exchange occurred:
DEFENSE: Your Honor, ... while [the victim] ... testified and [was] subject to cross-examination, I did not cross-examine her on [the statement] because she did not identify [the defendant] as the person who was driving the vehicle.
....
[T]he statute clearly says cross-examined about the statement. She never made the statement on direct examination for me ... to cross-examine her on it.
....
STATE: Your Honor, we called [the victim], we spoke about her identification. She went over her testimony. She was subject to cross-examination.
COURT: Didn't [the victim] identify the [d]efendant on the stand?
STATE: [The victim] identified the [d]efendant as the only person next to the [other] car when she got out of her car. She didn't identify him specifically as the driver [of the other car].
COURT: Okay. Well, to the extent that [the victim] identified the [d]efendant as the person standing next to the driver's side of the [other] car, that's fine. That falls within the language of [section 90.]801(2)(c).
....
Overruled.
After the sidebar, the state again asked the responding deputy how he knew the defendant had been the other vehicle's driver. The responding deputy testified: "The [victim] advised that [the defendant] was the driver of [the other vehicle]."
The state went on to present further evidence to meet its burden of proving the remaining elements of DUI causing or contributing to injury to person or property. Included within this evidence was the patrol vehicle video recording of the defendant while being transported to jail. During the transport, the defendant made various spontaneous statements incriminating himself as the other vehicle's driver:
• "What did I do wrong? Because somebody rear-ended me?"
• "I want my keys and driver's license."
• "Are you going to tow the vehicle? I live right there."
• "Why can't I park it? ... You won't let me move it?"
• "You can't answer if my money and my car [indiscernible]?"
After the state rested, defense counsel moved for a judgment of acquittal. Defense counsel argued the state had failed to show that the defendant had been the other vehicle's driver. Defense counsel recounted the victim testified that she had seen two people standing by the other vehicle, and the state "just relied on the pontification by [the victim]" that the defendant had been the other vehicle's driver. Defense counsel added that the state had not presented any witness or circumstantial evidence to show the defendant had been the other vehicle's driver.
The state responded to the defendant's JOA motion as follows:
As far as driving goes, we have the victim who got on the stand and testified the accident occurred. Seconds after she got out of her vehicle, just seconds after, the [d]efendant was standing within arm[’s] length from the driver side door of the other vehicle that was involved in the crash and no one else was around .... Then the [d]efendant tries to get back in the vehicle. And only until he tries to get back in the vehicle, this other man shows up and prevents [the defendant] from getting back inside the vehicle, and we're talking about the driver's side of the vehicle .... The driver door. ... [T]he [d]efendant has injuries consistent with someone just involved in an accident, so we know he was in the car. And ... we heard from the [responding ] [d ]eputy that the victim identified the [d ]efendant as the driver on that day. Not only that, we watched the transport video where the [d]efendant himself says someone rear-ended me. He wants to know where his keys are. He is asking if they are towing it why can't he park it. And he's talking about his money on the console. ... [T]hat is competent, substantial evidence that he was the driver at the time of the crash.
(emphases added).
The trial court denied defense counsel's JOA motion. On the issue of whether the state had presented prima facie evidence that the defendant had been the other vehicle's driver, the trial court found:
[T]he [d]efendant was placed, by testimony, ... immediately adjacent to the [other vehicle] and the testimony was that the [d]efendant was trying to get back into the [other vehicle] or at least to reach for something in the [other vehicle]. So ... the jury could conclude that the [d]efendant had actual physical control of the vehicle. It was his vehicle. He wanted something in there. He was placed right next to it. So I do think that the [s]tate has established a prima facie case to satisfy that element.
After the defendant chose to present evidence in his defense and later rested, defense counsel renewed the JOA motion. Defense counsel reiterated the previous argument that the state had not shown the defendant had been the other vehicle's driver.
The trial court denied the defendant's renewed JOA motion. The jury found the defendant guilty of DUI causing or contributing to injury to person or property, as charged. The trial court adjudicated the defendant guilty and sentenced the defendant.
This Appeal
This appeal followed. The defendant primarily argues the trial court erred in overruling his hearsay objection to the responding deputy's testimony that the victim, at the scene, had identified the defendant as the other vehicle's driver.
Applying a mixed standard of review, we agree with the defendant's argument that the trial court erred in overruling his hearsay objection. See Joseph v. State , 336 So. 3d 218, 234 (Fla. 2022) ("Admissibility of evidence is within the sound discretion of the trial court, and the trial court's ruling will not be disturbed on appellate review unless there is an abuse of discretion. However, the question of whether a statement is hearsay is a matter of law and is subject to de novo review on appeal.") (internal citation and quotation marks omitted). However, we conclude the error was harmless.
A. The trial court erred in overruling the defendant's hearsay objection.
Section 90.801(2)(c), Florida Statutes (2019), provides: "A statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement and the statement is ... [o]ne of identification of a person made after perceiving the person." (emphases added).
Thus, for a statement to be admissible at trial as "not hearsay" under section 90.801(2)(c), three elements must be shown (re-ordered here for clarity):
1) "the declarant testifies at the trial";
2) the declarant's "[out-of-court] statement is ... [o]ne of identification of a person made after perceiving the person"; and
3) the declarant "is subject to cross-examination concerning the statement ."
(emphases added).
Here, the state has shown section 90.801(2)(c) ’s first and second elements were satisfied at trial. That is, the declarant—the victim—testified at the trial, and the victim's statement to the responding deputy was one of identification of the defendant made after perceiving the defendant at the scene of the crash.
However, the state failed to show the third element was satisfied—that the victim was subject to cross-examination concerning her statement to the responding deputy that the defendant had been the other vehicle's driver . During the victim's testimony, the state never asked the victim if she had told the responding deputy that the defendant had been the other vehicle's driver. The victim also never testified she had made such a statement. With the state not having elicited such a statement during direct examination, the defendant had no basis to cross-examine the victim as to that statement. See § 90.612(2), Fla. Stat. (2019) ("Cross-examination of a witness is limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may, in its discretion, permit inquiry into additional matters.") (emphases added); Chandler v. State , 702 So. 2d 186, 195 (Fla. 1997) ("[C]ross-examination is generally limited to the scope of the direct examination.") (citation omitted).
From a practical standpoint, the defendant also had no reason to cross-examine the victim as to that statement, because eliciting that statement from the victim—after the state had failed to do so—likely would have bolstered the state's case against the defendant.
Thus, by the time the state sought to have the responding deputy testify that the victim had stated the defendant had been the other vehicle's driver, the state had not laid a foundation for the responding deputy's testimony by having shown that the victim had been subject to cross-examination concerning that statement , as section 90.801(2)(c) requires.
As a result, the trial court erred in overruling the defendant's hearsay objection to the responding deputy's testimony that the victim, at the scene of the crash, had identified the defendant as the other vehicle's driver. See State v. Freber , 366 So. 2d 426, 428 (Fla. 1978) ("[T]estimony of a prior extrajudicial identification is admissible as substantive evidence of identity if the identifying witness testifies to the fact that a prior identification was made .") (emphasis added); Deans v. State , 988 So. 2d 1271, 1272 (Fla. 5th DCA 2008) (trial court erred in overruling the defendant's hearsay objection to a detective's testimony regarding the victim's out-of-court identification of the defendant, because the state had not first asked the victim if she could identify the defendant as her assailant or if she had previously identified him from a photo pack); Neilson v. State , 713 So. 2d 1110, 1112 (Fla. 2d DCA 1998) (trial court erred in overruling the defendant's hearsay objection to the investigating officer's testimony that two state witnesses had identified the defendant's co-perpetrators from a photo pack, because the state had failed to first question the two witnesses concerning their photo pack identification).
We distinguish the instant case from the Fifth District's decision in Polite v. State , 41 So. 3d 935 (Fla. 5th DCA 2010), quashed on other grounds , 116 So. 3d 270 (Fla. 2013). In Polite , the state, at trial, questioned a home invasion victim about whether she had identified "the person ... who had done this to you?" and whether she told police "the name of the person who had done this to you?" 41 So. 3d at 942. The victim, however, refused to answer the state's questions. Id. at 937. The state instead had the victim authenticate her sworn written statement, which she had given to police on the day of the incident, identifying the defendant. Id. at 937-38.
The responding deputy later testified that the victim had identified the defendant in a photographic line-up. Id. at 939. The defendant apparently objected on hearsay grounds, which the trial court apparently overruled. Id. at 942-43. (Although the opinion does not expressly mention the objection and the ruling, the opinion mentions the argument being made on appeal, without mention of a lack of preservation issue.)
The jury ultimately found the defendant guilty. Id. at 939. On appeal, the defendant argued, among other grounds, that the trial court abused its discretion in admitting the responding deputy's testimony of the victim's out-of-court identification of him from the photo line-up. Id. at 941. More specifically, the defendant argued the state had failed to inquire into that issue during its direct examination of the victim. Id.
The Fifth District affirmed. Id. at 943. The Fifth District began its analysis by acknowledging its previous holding in Deans and the Second District's holding in Neilson (both cited above) that a trial court errs when admitting law enforcement's testimony of an out-of-court identification when the state had not first asked the witness who had made the identification about that identification. Id. at 941-42. The Fifth District stated those holdings both were based on section 90.801(2)(c) and 90.612(2), Florida Statutes (2009) (which versions are identical to the 2019 versions quoted above). Id. at 942.
However, the Fifth District distinguished Polite ’s facts from Deans ’ and Neilson ’s facts:
In the instant case, the State questioned [the victim], generally, about whether she had identified "the person ... who had done this to you?" and whether she told police "the name of the person who had done this to you?" These questions, on direct, were broad enough to allow [the defendant's] counsel to cross-examine the [victim] regarding both her initial out-of-court identification and the later identification when shown a photo line-up. ... We also note that although [the victim] did not acknowledge identifying [the defendant] to the police in response to the State's questions on direct, her acknowledgement was not necessary for admission of the evidence under section 90.801(2)(c). ... It was sufficient that the State opened the door for cross-examination regarding the topic of [the victim's] out-of-court identification by asking her about it during its direct examination.
41 So. 3d at 942 (emphases added).
The instant case is distinguishable from Polite . Here, the state never questioned the victim, even generally, about whether she had told the responding deputy that the defendant was the other vehicle's driver. Although the victim testified about her on-scene observations indicating that the defendant had been the other vehicle's driver, the state did not ask the victim whether she had conveyed those observations to the responding deputy. Thus, the victim was not "subject to cross-examination" regarding her out-of-court identification of the defendant as the other vehicle's driver to the responding deputy. As a result, the state did not lay a foundation for the responding deputy's later testimony that the victim had identified the defendant as the other vehicle's driver.
We also distinguish a recent Florida Supreme Court case—Joseph v. State , 336 So. 3d 218 (Fla. 2022) —applying section 90.801(2)(c). There, a defendant convicted of two counts of first-degree murder argued on appeal that the trial court had erroneously admitted a detective's testimony that the defendant's two brothers, on the night of the murders, had identified the defendant as the shooter. Id. at 233-34. More specifically, the defendant argued the brothers’ out-of-court identifications were hearsay because the brothers testified at trial that the defendant had not been the shooter. Id. at 234.
Our supreme court affirmed, reasoning that the two brothers’ out-of-court identifications were admissible as statements of identifications pursuant to section 90.801(2)(c), Florida Statutes (2017), because the brothers "testified at trial and were subject to cross-examination concerning their identifications." Id. at 234-35. Here, however, the state did not ask the victim about her identification of the defendant to the responding deputy, and thus was not subject to cross-examination concerning that statement.
B. The trial court's error in overruling the defendant's hearsay objection was harmless.
For two reasons, however, we consider the trial court's error to be harmless. See State v. DiGuilio , 491 So. 2d 1129, 1135 (Fla. 1986) ("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.").
First, the victim, during her direct examination, presented sufficient circumstantial evidence to show that the defendant was the driver of the other vehicle. As the state argued in its response to the defendant's JOA motion, just seconds after the victim exited her vehicle, she saw the defendant standing within arm's length of the other vehicle's driver's side door and, at first, no one else was around. The victim then saw the defendant try to get back into the other vehicle through the driver's side door. Only when the defendant tried to get back into the other vehicle did a bystander approach to prevent the defendant from doing so.
Second, as recounted above, the patrol vehicle video recording of the defendant, while being transported to jail, shows the defendant making various spontaneous statements incriminating himself as the driver of the other vehicle:
• "What did I do wrong? Because somebody rear-ended me?"
• "I want my keys and driver's license."
• "Are you going to tow the vehicle? I live right there."
• "Why can't I park it? ... You won't let me move it?"
• "You can't answer if my money and my car [indiscernible]?"
Given this evidence, we conclude beyond a reasonable doubt that the trial court's error in overruling the defendant's hearsay objection to the deputy's testimony did not contribute to the verdict.
Conclusion
Based on the foregoing, we conclude the trial court erred in overruling the defendant's hearsay objection to the responding deputy's testimony that the victim, at the scene of the crash, had identified the defendant as the driver of the vehicle which had caused the crash. However, given the other evidence in the case establishing that the defendant was the other vehicle's driver, we conclude beyond a reasonable doubt that the trial court's error in overruling the defendant's hearsay objection to the deputy's testimony did not contribute to the verdict.
On all other arguments which the defendant has raised in his appeal, we affirm without further discussion.
Affirmed.
Damoorgian and Levine, JJ., concur.