Carter v. State

951 So. 2d 939, 2007 WL 675354
CourtDistrict Court of Appeal of Florida
DecidedMarch 7, 2007
Docket4D05-2167
StatusPublished
Cited by12 cases

This text of 951 So. 2d 939 (Carter 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
Carter v. State, 951 So. 2d 939, 2007 WL 675354 (Fla. Ct. App. 2007).

Opinion

951 So.2d 939 (2007)

Terrell Angelo CARTER, Appellant,
v.
STATE of Florida, Appellee.

No. 4D05-2167.

District Court of Appeal of Florida, Fourth District.

March 7, 2007.
Rehearing Denied April 16, 2007.

*940 Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and David M. Schultz, Assistant Attorney General, West Palm Beach, for appellee.

TAYLOR, J.

Terrell Angelo Carter was tried by jury and convicted of carjacking, aggravated assault, and fleeing or attempting to elude with reckless driving. He appeals his judgment of conviction, arguing that the trial court erred in overruling his hearsay and lack of foundation objections to admission of a police report that contained the victim's affidavit, which recounted the incident. We reverse for a new trial.

Sean Burke moved to Florida in October 2003 from Long Island, New York with his parents. On February 7, 2004, about four months after he moved here, Burke was driving around downtown West Palm Beach to become familiar with the area. He was driving his mother's 2003 Saturn. Around 6 p.m., he stopped at a gas station on the corner of Palm Beach Lakes Boulevard and Dixie Highway to phone a friend in New York from a pay phone.

Burke testified that appellant approached him, complaining of stomach pain, and asked Burke if he would give him a ride around the block to his house. He said he lived near a mall. Believing that appellant was in pain, Burke agreed, even though he had never picked up a stranger before.

Appellant got into Burke's front passenger seat and gave directions as they rode. They headed west on Palm Beach Lakes Boulevard toward I-95. Appellant told Burke to make a right-hand turn about a mile up the road. After Burke made the right turn, appellant directed him to make another right turn. They ended up in a deserted park area. At that point, Burke started to get suspicious. He detected a change in appellant's voice and became scared. Appellant suddenly reached over with his left hand and threw the car into park. He then pulled out what appeared to be an ice pick. As soon as appellant threw the car in park, Burke removed his seat belt and bolted from the car. By the time he saw the tip of the ice pick, he was already out of the car.

Burke testified that he went to the nearest corner to flag somebody down for help. *941 An off-duty police officer came along and called the West Palm Beach police for him. Officer Darren Jenne responded to the call. Burke told the officer what happened. Two days later, Burke positively identified appellant from a photo lineup and gave the officer a sworn taped statement concerning the carjacking.

During the defense cross-examination of Burke, Burke denied that he went with appellant to buy cocaine. He acknowledged that his parents were very strict about drug use and that they would be upset if they found out that he had anything to do with drugs.

Officer Jenne testified that he responded to the call regarding a carjacking. Based on the information reported by Burke, the officer prepared a police report titled "West Palm Beach Department Stolen Vehicle/Vessel Affidavit." The officer filled out the top portion of the form, furnishing the date, time, and location of the car theft, a description of the stolen vehicle, and general information about the victim. In a space provided near the bottom of the form, Burke indicated by check mark his intention to prosecute the offender, and wrote, in narrative form, the following account of events surrounding the theft:

I was at the Amoco gas station on Palm Beach Lakes when a black male came up to me and asked me for a ride. We then drove west on Palm Beach Lakes when he said turn right here. After making the right he threw my car into park and pulled out an ice pick. I jumped out of my mother's car and ran to the nearest corner. Then a deputy called 911. I want him arrested.

Two days later, while on road patrol, Officer Jenne spotted appellant driving the vehicle described by Burke. The officer arrested appellant after pursuing him by car and on foot.

During the direct examination of Office Jenne, the state questioned the officer about the police report he prepared after speaking to Burke on the evening of the incident. Officer Jenne testified that he and Burke filled out the report together. He said that such reports are generated and kept in the normal course of business at the West Palm Beach Police Department. When the state moved to admit the report into evidence, appellant objected on the grounds of "relevancy, foundation and hearsay." The trial court overruled the objection without discussion and admitted the report as State's Exhibit 2.

Appellant testified to a dramatically different version of events. He said that on the evening of this incident, he was leaning on the phone booth at the gas station waiting for his friend to come pick him up so that he could go to Boynton Beach to his girlfriend's house to get some more money for crack cocaine. Appellant explained that he is addicted to crack cocaine and that the effects of crack cocaine last only two to five minutes before wearing off. He met Burke when Burke stopped to use the phone. According to appellant, he and Burke went to 13th Street to buy some crack. Burke had ten dollars and appellant had twenty-four dollars, so they bought ten dollars' worth of crack for Burke and twenty dollars' worth for appellant. They then smoked the crack. Afterwards, they went to the McDonalds on Palm Beach Lakes Boulevard. Then they went to Gaines Park and smoked more crack. Burke was trying to sell a bottle of champagne and a calling card that had four hundred minutes on it. They used the minutes to call appellant's friend to tell her not to come pick him up.

Appellant said that Burke, who is white, did not want to ride back through the black neighborhood, so Burke asked him to give him his two remaining crack cocaine *942 rocks while appellant used his car to go get more cocaine. Appellant testified that he lives in a crack-infested neighborhood and can get crack on credit or sometimes for free. Appellant went to buy more cocaine, but when he came back, Burke was nowhere to be found. Appellant testified that he left Burke in a middle-class neighborhood. He said that if he had pulled an ice pick on Burke, as he testified, Burke would have run to the nearest house, not to an intersection. Appellant admitted to having nine convictions for felonies or crimes involving dishonesty.

The jury returned a verdict finding appellant guilty of carjacking, aggravated assault, and fleeing or attempting to elude with reckless driving. He was sentenced to life imprisonment as a habitual felony offender with a minimum mandatory penalty of thirty years on the carjacking charge. He also received a ten-year sentence on the aggravated assault count as a habitual felony offender, with a minimum mandatory of five years as a prison releasee reoffender. He received a thirty year sentence on the fleeing or eluding count, as a habitual felony offender.

The sole issue on appeal concerns the admission into evidence of Officer Jenne's police report, which contained the victim's sworn statement concerning the incident. Appellant argues that the trial court abused its discretion and erred in overruling his hearsay and foundation objections to admission of the report. He contends that the state did not establish any basis or lay a predicate for admitting the document as a business record.

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Cite This Page — Counsel Stack

Bluebook (online)
951 So. 2d 939, 2007 WL 675354, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carter-v-state-fladistctapp-2007.