In PIERRE-CHARLES v. STATE, No. 2D09-2263 (Fla. 2d DCA Feb 11, 2011), the court addressed non-verbal conduct as hearsay. The Defendant was convicted of two counts of first-degree murder. At trial the State called the Defendant's brother as a witness. The prosecutor asked the brother whether he had nodded his head up and down when his father asked him whether the Defendant had committed the offenses. The brother admitted to nodding his head, but adamantly maintained that he did not mean that the Defendant had committed the murders. In closing argument, the prosecutor attempted to discuss the brother's head nod as substantive evidence.
The DCA held that § 90.801(1)(c) Florida Statutes (2009) defines hearsay as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." A "statement" for purposes of hearsay includes "[n]onverbal conduct of a person if it is intended by the person as an assertion." § 90.801(1)(a)(2). Hearsay includes an out-of-court statement of a witness who testifies at trial. Merely repeating a prior out-of-court statement in the courtroom does not convert a hearsay statement into non-hearsay.
When an individual who is asked a question nods his or her head up and down to indicate an affirmative response, and that conduct is intended to communicate a thought, it is included within the definition of hearsay. The reliability necessary for admission of such a non-verbal statement to evidence is lacking because the jury was not present to observe the demeanor of the witness when the statement was originally made and there was no opportunity for cross-examination at that time.
In this case, the brother's head nod was an out-of-court statement introduced by the State as an affirmative response to his father's question as to whether the Defendant committed the murders. The brother's head nod constituted hearsay in the form of a nonverbal assertion. Therefore the trial court erred in admitting the statement.
At one point, the State argued that the head nod served only as grounds for impeachment. However the brother admitted nodding his head, thereby obviating the need for impeachment. Prior inconsistent statements offered to impeach the credibility of a witness are not hearsay because they are not offered to prove the truth of the prior statement but rather to show why the witness is not trustworthy.
Moreover, the brother's head nod was not introduced to simply attack his credibility; the State wanted the jury to believe in the truthfulness of the brother's prior out-of-court statement. That purpose became apparent in closing arguments when the State referred to the brother's discussion with his father and used the head nod as substantive evidence of defendant's guilt. The DCA concluded that the State was using the prior statement almost entirely for its substantive effect on the fact finder.
[Editor's note: In my experience many trial judges do not want to acknowledge that an out-of-court statement by a witness who testifies at trial is hearsay. Here the Second District Court clearly and succinctly stated that often misunderstood principle of law: "Hearsay includes an out-of-court statement of a witness who testifies at trial, as well as an out-of-court statement by someone who is not a witness on the stand testifying to the statement", quoting Carter v. State, 951 So. 2d 939, 944 (Fla. 4th DCA 2007). "Merely repeating a statement in the courtroom does not convert a hearsay statement into non-hearsay", quoting Ehrhardt, Florida Evidence § 801.2, at 769-70 (2009 ed.). See slip opinion at 8.]
In BLACKMON v. STATE, No. 2D09-6009 (Fla. 2d DCA Feb. 9, 2011), the Defendant was convicted of carrying a concealed firearm. An officer attempted a traffic stop of a vehicle displaying a license tag that was registered to a different vehicle. When the vehicle stopped, the Defendant exited the vehicle and fled on foot through a dimly lit apartment complex. The officer pursued the Defendant on foot through a parking lot; the Defendant squeezed through a narrow opening in a fence.
Once the officer reached the fence, the Defendant turned and lifted a firearm towards the officer. The officer deployed his Taser and the Defendant fell to the ground, dropping the firearm. The officer did not provide any direct testimony that the Defendant was carrying the firearm in such a manner as to conceal the firearm from the ordinary sight of another person as provided by § 790.001(2) Florida Statutes (2008). Nor did the State present circumstantial evidence from which an inference of concealment could arise. The officer's testimony only established that he was unable to see a firearm in the Defendant's possession from his vantage point until the moment the firearm was pointed directly at him.
The DCA held that that testimony was insufficient to prove concealment because it remained consistent with a reasonable hypothesis that the firearm was within the ordinary sight of another person from a different viewpoint. Accordingly, because the State failed to prove concealment, The DCA reversed the conviction and sentence for carrying a concealed firearm.
In AL-HAKIM v. STATE, No. 2D09-3911 (Fla. 2d DCA Feb. 9, 2011), the Defendant was the family member of a defendant in a criminal case. The Defendant was held in direct criminal contempt following a disturbance in the courtroom at a hearing in the underlying case. At the hearing on the contempt, the court announced to the Defendant "I am going to find you in direct criminal contempt of court for creating a disturbance in my court this morning. Is there anything that you want to say before I sentence you, sir?" The Defendant contested whether he had acted in contempt. The judge sentenced the Defendant to thirty days in jail and signed a written judgment in open court. The record did not reflect that the court ever inquired of the need to appoint counsel for the Defendant. The written judgment did not recite the facts on which the finding of contempt was based. Several days later, after the Defendant had obtained the assistance of a lawyer, the judge reduced the sentence to time served.
The DCA held that a trial court has broad, discretionary power to impose a judgment of contempt, a power which existed at common law. However a proceeding for criminal contempt, which is punishable by up to twelve months imprisonment, is expressly within the scope of the Florida Rules of Criminal Procedure. Failure of a court to exercise contempt power in a manner that is consistent with those rules is fundamental error. Fla. R. Crim. P. 3.111(b) and 3.830 require determination by a court as to whether a defendant is indigent and therefore entitled to the appointment of counsel, require a defendant to be given an opportunity to respond before imposing a judgment of direct criminal contempt, and require a recital of the facts upon which such judgment was based. Failure to do so in this case warranted reversal.
In NASH v. STATE, No. 2D09-3825 (Fla. 2d DCA Feb. 11, 2011), on the morning of trial, the Defendant's court-appointed counsel informed the trial court that the Defendant wanted to discharge counsel and hire a private attorney. On inquiry by the court, the Defendant stated that he was not ready for trial, he had received conflicting trial dates, he had only recently received deposition transcripts, and he was not ready to proceed. The DCA reversed the denial of post-conviction relief by the trial court because the Defendant unequivocally requested his counsel's discharge and complained that he was unaware of his trial date. Under the rule in Nelson v. State, 274 So. 2d 256 (Fla. 4th DCA 1973), when a defendant seeks to discharge his court-appointed counsel before trial the trial court must ascertain whether the defendant is unequivocally requesting counsel's discharge and, if so, the reason for the request.
The trial court made no inquiry of the Defendant's counsel other than asking whether she was ready for trial. Without such an inquiry, the court could not, and did not, make the findings on the record which Nelson mandates. When the Defendant raised specific complaints regarding his counsel's performance, the court was obligated to inquire regarding the complaints. The DCA reversed the conviction and remanded the case for a new trial.
In FREEMAN v. STATE, No. 2D09-4008 (Fla. 2d DCA Feb. 11, 2011), the Defendant filed a motion for postconviction relief based on newly discovered evidence. The trial court ordered an evidentiary hearing.
At that hearing the trial court denied the Defendant's motion to discharge appointed counsel because it did not find that there was a conflict of interest, "professional negligence, unprofessional conduct, or general ineffectiveness." The hearing proceeded with appointed counsel representing the Defendant against his wishes. On appeal from denial for post-conviction relief, the Defendant argued that the postconviction court erred by failing to hold the hearing required by Faretta v. California, 422 U.S. 806 (1975), after he unequivocally stated that he wanted to discharge his court-appointed counsel and proceed pro se.
The DCA held that competent defendants have the constitutional right to refuse professional counsel and to represent themselves, or not, if they so choose. If the right to representation can be waived at trial, the DCA saw no reason why the statutory right to collateral counsel could not also be waived. The DCA held that a court can not deny a postconviction defendant his right to control his destiny to whatever extent remains. Here the postconviction court failed to hold a hearing to determine whether the Defendant's request to represent himself was knowing, intelligent, and voluntary, and whether the Defendant understood the consequences of waiving collateral counsel. Instead, the court only found no ineffectiveness on the part of appointed counsel, and then required the Defendant to proceed with unwanted court-appointed counsel because, in the court's opinion, it was in the Defendant's best interest. The Defendant had the constitutional right to waive counsel and represent himself unless his waiver was found, after a hearing, not to be knowing, intelligent, and voluntary. Unless and until such a finding was made, the Defendant's constitutional right to self-representation applied.
