Category Archives: Judges

Judges Get This One Wrong All The Time!

An Excited Utterance Can Be Admissible Even When Self-Serving

By Adam L. Bantner, II

Adam@TampaCrimeAttorneys.com

www.TampaCrimeAttorneys.com

During the course of a criminal trial it is not unfamiliar for a judge to sustain an hearsay objection whenever the hearsay statement is that of the person on trial. This is true even when the statement qualifies for admission under an exception to the hearsay rule. The common refrain from the prosecutor is, “But judge, it’s self-serving. Self-serving hearsay is inadmissible.” This can be enough to persuade the judge. 

However, criminal defense attorneys have a new case with which to arm themselves against this wrong line of thinking. The Fourth District Court of Appeal in Hinck v. State, 43 Fla. L. Weekly D2681c (Fla. 4th DCA 2018) held that so long as the particular requirements of the exception are met, in this case it was an excited utterance, the self-serving nature of the statement will not automatically preclude its admission into evidence; it is but one consideration.

The Excited Utterance Hearsay Exception

Fla. Stat. 90.803(2) allows for the admission of an “excited utterance” when the following criteria is met: [T]he statement must be made: (1) regarding an event startling enough to cause nervous excitement; (2) before there was time to contrive or misrepresent; and (3) while the person was under the stress or excitement caused by the event. Hayward v. State, 24 So.3d 17 (Fla. 2009). Conspicuously absent is any requirement that the statement not benefit the defendant if the statement is his. 

The confusion comes from the courts’ ability to blend the requirements for the admission of a spontaneous statement and excited utterance. It shouldn’t be done, but an element for the admission of a spontaneous statement is it not be made under circumstances which indicate its lack of trustworthiness. Obviously, you don’t want unreliable evidence to be admitted; but the fact that a person is under the stress or excitement of a startling event is exactly what gives an excited utterance its trustworthiness. If the statement is fabricated, then its not being made under stress or excitement. As such, this requirement is unnecessary for an excited utterance to be admitted. 

State v. Hinck

In this case, Hinck had stabbed a man with whom he met online for a casual sexual encounter. Hinck claimed that he had a change of heart about going through with the act and that the victim of the stabbing had tried to force himself upon Hinck. Hinck claimed to have responded in self defense by using his knife.

Upon coming down the stairs from the hotel room, Hinck stated to the hotel attendant, “I’ve been attacked; I stabbed someone.” This is the statement to which the state objected. The trial court sustained that objected and Hinck was ultimately convicted. 

However, the appellate court reversed the conviction because the statement should have been admitted and such error was not harmless.

Call The Bantner Firm

If you find yourself or someone you love facing a serious felony allegation, you need an attorney who knows his way around the courtroom. Adam Bantner is a board certified criminal trial law attorney helping the accused in Hillsborough County. Call us today for your free consultation. 813.397.3965.

Stay in Your Lane: The Role of the Judge

By: Adam L. Bantner, II, Board Certified Criminal Trial Law Attorney

“The judge has five basic tasks. The first is simply to preside over the proceedings and see that order is maintained. The second is to determine whether any of the evidence that the parties want to use is illegal or improper. Third, before the jury begins its deliberations about the facts in the case, the judge gives the jury instructions about the law that applies to the case and the standards it must use in deciding the case. Fourth, in bench trials, the judge must also determine the facts and decide the case. The fifth is to sentence convicted criminal defendants.” Role of the Judge and Other Courtroom Participants, The Judge, http://www.flnd.uscourts.gov/role-judge-and-other-courtroom-participants, June 6, 2018.

Additionally, Canon 2A of the Florida Code of Judicial Conduct states, “A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”

When a judge breaks from these parameters, the courtroom goes from a place of justice to an inquisition. Additionally, it will cause whatever work was done in that courtroom to be reversed on appeal. A recent example is Parr v. State, 43 Fla.L.Weekly D1161a (Fla. 4th DCA 2018).

Parr was placed on probation for on two counts of Dealing in Stolen Property and two counts of False Information to a Secondhand Dealer. In November 2015 his probation was violated, and a hearing was conducted in November 2016. After plea negotiations broke down, and facing up to 40 years in prison, Parr entered an admission to violating his probation and a sentencing hearing as held.

At the sentencing hearing, Parr asked for a modification of probation for him to be placed in a substance abuse treatment facility and he called his grandfather as a witness. Because Parr had indicated that most, if not all, of his victims were family, he wanted to show the Court that his family wanted him to receive help and not incarceration. As soon as Parr finished his direct examination of his grandfather, the Court, and not the prosecution, begin cross-examining the grandfather. The Court began by asking whether Parr was a danger to the community and the grandfather responded, “Absolutely not.” The following examination ensued:

THE COURT: Two other – two other grand thefts, are you familiar with those?

GRANDFATHER: You’ll have to tell me what they are.

THE COURT: I don’t know, I’m asking you. Do you know what they are?

THE DEFENDANT: I don’t – one was – one was —

THE COURT: I’m not asking you, I’m asking [your Grandfather].

GRANDFATHER: Sir, I don’t know.

THE COURT: Cause you’re coming into my courtroom and you’re saying he’s not a danger to anyone else.

GRANDFATHER: I – I don’t think –

THE COURT: He’s never victimized anybody else?

GRANDFATHER: No, not that I know of.

THE COURT: Not that you know of.

GRANDFATHER: Uh-huh.

THE COURT: Is your lack of knowledge intentional or accidental in that regard?

GRANDFATHER: My lack of knowledge is because –

THE COURT: Are you keeping your head in the sand –

GRANDFATHER: I have no knowledge of that.

THE COURT: As far as whether he’s violated anyone else’s rights?

GRANDFATHER: I do not know that he has.

THE COURT: Okay. But is that intentional on your part or are you just accidental – are you – are you –

GRANDFATHER: That’s the way I feel.

THE COURT: Did you inquire of him in that regard?

GRANDFATHER: That’s –

THE COURT: Have you looked into it?

GRANDFATHER: Uh, not intentionally look into it.

THE COURT: Because you just told me he’s not a threat to anybody else.

GRANDFATHER: I do not believe him to be a threat to anyone.

THE COURT: Okay. Because you don’t know if he’s – he’s violated anyone else’s rights.

GRANDFATHER: Not – it has not come to my attention that he has.

THE COURT: How about assault?

GRANDFATHER: No.

THE COURT: Improper exhibition of a weapon?

GRANDFATHER: No.

THE COURT: That is no, you don’t know anything about it.

GRANDFATHER: He’s not done that.

THE DEFENDANT: No, it’s –

THE COURT: It’s on his record. I’m looking at his scoresheet.

GRANDFATHER: A gun?

THE COURT: I’m looking at his scoresheet. It’s on his record.

GRANDFATHER: I don’t know anything about a gun. I have guns, but I don’t know that –

THE COURT: I don’t know that it’s a gun –

GRANDFATHER: He’s every had any –

THE COURT: It says weapon, it doesn’t mean it’s a gun. Resisting a merchant, you’re not a merchant, are you?

GRANDFATHER: No sir.

THE COURT: Resisting an officer without violence, are you aware of that?

GRANDFATHER: No sir.

THE COURT: Driving while license suspended, theft – another theft charge. You’ve told me you don’t know of any other victims other than your family.

GRANDFATHER: That’s correct.

THE COURT: Okay. And he’s violated your family’s rights because of what, a drug problem?

GRANDFATHER: No, I don’t know that he’s ever been on drugs.

THE COURT: So you don’t know what motivates him to do these things?

GRANDFATHER: I think he just thought he could get away it and, uh –

THE COURT: So but what – what –

GRANDFATHER: It was proven not so.

THE COURT: We know in our – in the world that we live in, people do things for different reasons. Most criminals have drug problems and they violate people’s rights, they steal from them to get money to get drugs or to buy whatever they want. How do you – who is he – what does – what does he do? How is it – he just violates the rights of people in your family? Does he hate all of you? What – what’s the situation? I don’t get it.

GRANDFATHER: I just thought it was – I think he thought it was an easy way to get things so he could, uh, prepare or to provide for himself.

THE COURT: And he limits it to your family in that —

GRANDFATHER: The occasions when he’s done that have been limited to myself, uh, my live-in girlfriend and – and his mother.

THE COURT: All right. Those are the only questions I have. Does the State have any additional questions?

The appellate court held that this questioning went too far and ultimately reversed the sentence and remanded the case for a resentencing before a different judge.

            In so doing, the Court quoted from State ex rel. Davis v. Parks, 141 Fla. 516, 519-20, 194 So. 613, 615 (1939): “This Court is committed to the doctrine that every litigant is entitled to nothing less than the cold neutrality of an impartial judge. It is the duty of Courts to scrupulously guard this right and to refrain from attempting to exercise jurisdiction in any matter where his qualification to do so is seriously brought in question. The exercise of any other policy tends to discredit the judiciary and shadow the administration of justice.

It is not enough for a judge to assert that he is free from prejudice. His mien and the reflex from his court room speak louder than he can declaim on this point. If he fails through these avenues to reflect justice and square dealing, his usefulness is destroyed. The attitude of the judge and the atmosphere of the court room should indeed be such that no matter what charge is lodged against a litigant or what cause he is called on to litigate, he can approach the bar with every assurance that he is in a forum where the judicial ermine is everything that it typifies, purity and justice. The guaranty of a fair and impartial trial can mean nothing less than this.”

That language may be 80-years-old, but it cannot be said better and educates both the bench and bar to remain vigilant that all parties simply do their job.