Barber v. State

576 So. 2d 825, 1991 WL 35439
CourtDistrict Court of Appeal of Florida
DecidedMarch 13, 1991
Docket89-2348
StatusPublished
Cited by2 cases

This text of 576 So. 2d 825 (Barber v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Barber v. State, 576 So. 2d 825, 1991 WL 35439 (Fla. Ct. App. 1991).

Opinion

576 So.2d 825 (1991)

Wayne BARBER, Appellant,
v.
STATE of Florida, Appellee.

No. 89-2348.

District Court of Appeal of Florida, First District.

March 13, 1991.

Barbara M. Linthicum, Public Defender, Carl S. McGinnes, Asst. Public Defender, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen., Gypsy Bailey, Asst. Atty. Gen., Tallahassee, for appellee.

SMITH, Judge.

Appellant appeals his first degree murder conviction for the death of his wife, raising several errors. We agree with appellant that the trial court reversibly erred in refusing to allow the defense to introduce into evidence a taped recording of appellant's custodial interrogation. Appellant sought to introduce the tape and have it played to the jury for the purpose of demonstrating to the jury the incoherent nature of his speech, which was relevant to his defense of voluntary intoxication.

On the evening of June 23, 1988, appellant and his wife went to several bars, partying with friends. They had several drinks and champagne, and appellant also had some beer. They went to one bar where their son, Randy, worked. At one *826 point, appellant complained of a headache, and Randy gave him some Xanax. The Barbers went home in the early morning hours of June 24.

At approximately 3:30 A.M. on the morning of June 24, appellant shot and killed his wife. She was shot in the chest, under the chin, and once in the forehead. Shortly thereafter, appellant made several long distance telephone calls to his wife's relatives in New York, explaining to them what he had done. He intimated that he intended to kill himself as well, after he talked to their son, Randy. One of the relatives called the police.

The police went to the Barbers' home and were joined by appellant's son, Randy. Randy entered the home and obtained the gun from appellant. The body of appellant's wife was discovered in the bedroom. When appellant was placed in the police car to be taken to the police station, Officer Arrowood testified that he was talking fast, looking around, and acting incoherent. Appellant asked why he had to be locked up, and said he didn't do anything.

At the police station, at approximately 6:30 A.M., appellant gave a taped statement to Chief Investigator Don Vinson and Deputy Albert Ridge. The booking officer testified that when he booked appellant, appellant smelled strongly of alcohol, and that he vomited and appeared to be drunk. About 11:00 A.M. on June 24, appellant was given an intoxilizer test. The test showed a blood alcohol level of .04.

At the trial, the state presented the testimony of Joanne Barber's family members who had spoken to appellant on the telephone immediately after she was shot. The following colloquy occurred between the prosecutor and Linda Walters, Joanne Barber's sister:

Q. Did you ask him if he had been drinking?
A. Yes, I did.
Q. Okay. And what did he reply? How did he reply?
A. He got mad and said, no, I haven't. And then in a few seconds he said, yes, I only had a couple beers.
Q. Okay. Have you previously seen him under the influence of alcoholic beverages?
A. Yes, I have.
Q. Okay. And does he have a distinctive characteristic to his voice when he's been drinking some beer?
A. Yes, he does. When he's had a few too many to drink, he has a tendency to stutter.
Q. Okay. And during this phone conversation, did he stutter at all?
A. No, he did not.
Q. Okay. Was he coherent? Were you able to understand everything that he was saying?
A. Yes, I did.
Q. Did he appear to know what he was saying to you?
A. Yes, definitely. He didn't hesitate with one word he told me.

Similarly, Linda Walters' husband, Robert Walters, was asked:

Q. Does he have — Does he tend to stutter after he's been drinking?
A. Yes, he does.
Q. Okay. During this conversation, did he stutter?
A. No, he didn't. Very clear, very coherent.
Q. Did you have any trouble understanding him or anything like that?
A. No, not at all.
Q. Do you have an opinion as to whether he was intoxicated to the point where he didn't know what he was doing or something to that effect?
A. I would say he wasn't.
Q. Okay. Did you even think he had been drinking at all?
A. I — You know, if I thought he had and he sounded like that, I probably would have asked him. But I have no doubt.
Q. No doubt what?
A. That in my mind he hadn't been drinking the way he was talking.

Finally, the victim's mother testified:

Q. Okay. Just from your conversation with him, were you able to understand him?
*827 A. Yes, he was real —
Q. Was he stuttering or anything like that?
A. No. No, he was really very — just like I was — he was in the next room. He didn't stutter or slur his words or anything.

After the state rested, the state moved in limine to preclude appellant from introducing his tape-recorded statement to Investigator Vinson and Deputy Ridge. The state argued it was inadmissible hearsay. Appellant argued that he was not seeking to introduce the tape-recording to prove the truth of the statements contained therein, but was offering it to demonstrate to the jury the manner in which he was speaking so that the jurors could determine for themselves whether his slurred speech and incoherence demonstrated intoxication. But even if it was hearsay, appellant argued that the evidence was admissible under the state of mind exception to the hearsay rule. The trial court disagreed, commenting that "the reason that you're trying to introduce the statement that he made to this investigating officer is because you want to prove the truth of the matter that is stated; that is, that what he said was true."

Appellant testified that on the night preceding his wife's shooting, he had several drinks of liquor, champagne, and quite a few beers. He explained that he had taken some Xanax for a headache. The next thing he knew, he was getting into the van and being taken to jail. He couldn't recall talking to his lawyer at the jail or taking the intoxilizer test. He admitted having a problem with alcohol, drinking twelve or more beers daily. At the conclusion of appellant's testimony, defense counsel renewed his request to admit the transcript and tape of appellant's interview with Investigator Vinson, and the request was denied.

Dr. Doheny, a psychiatrist and an expert in forensic psychiatry, opined that appellant suffers from alcohol dependence. Appellant gave a history of experiencing blackouts where he had no memory of events that occurred while he was functioning. Dr. Doheny was asked to give his opinion about appellant's blood alcohol level at the time of the murder. He testified that assuming appellant had a .04 reading at 11:00 A.M. on June 24, and that appellant had consumed roughly the amount of alcohol related by him in his testimony, appellant's level of alcohol at the time of the homicide was .21.

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Related

Whitfield v. State
933 So. 2d 1245 (District Court of Appeal of Florida, 2006)
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680 So. 2d 514 (District Court of Appeal of Florida, 1996)

Cite This Page — Counsel Stack

Bluebook (online)
576 So. 2d 825, 1991 WL 35439, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barber-v-state-fladistctapp-1991.