Carter v. State

226 So. 3d 268, 2017 WL 1496270, 2017 Fla. App. LEXIS 5786
District Court of Appeal of Florida·Decided April 26, 2017·No. No. 4D15-3132·Published·Cited by 3 cases

Opinions

Gross, J.

Appellant was convicted of sexual activity with a child and battery of a child. We write primarily to explain why the rule of completeness did not compel admission of his exculpatory post-arrest station house statement after the state introduced a tape of a controlled phone call between the victim and appellant.

Appellant was romantically involved with the victim’s mother. He moved in with the mother and her family when the victim was 10 or 11. When she was 17, the victim disclosed to a school counselor that, for five years, she had been sexually abused by appellant.

The controlled call

Law enforcement was contacted and a detective arranged to record a controlled call between the victim and appellant. The recording was played for the jury during [270]*270the detective’s testimony. Pertinent parts of the call are set forth below.

Victim: I just can’t get over what has happened between me and you. And I don’t know how to get over it.
Appellant: Well, me and you—what are you talking about, like last night or the night before?
Victim: No, like having sex.
Appellant: Well, why don’t we talk about this tonight, you can’t just make it through today?
Victim: ... I can’t stop thinking about it and I can’t calm down. And I don’t have my medicine—
Appellant: Well, you left this morning fine. What—what are you—what is going on that you can’t—I just—
Victim: Because this one girl was talking about her [redacted]. And then it just triggered me. And I can’t stop thinking about it. Like I don’t—I don’t know, I can’t stop thinking about it. I can’t get over it. I just—I just want to know why. Is it because I’m not your kid, like—
Appellant: No, [Victim] and I really can’t talk to you on the phone. And I feel bad. Let me go—I’ll tell you (unintelligible) know I need to run over to your school. And I’ll come over there and we’ll talk.
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... you also have to understand and take some responsibility on your own too. It’s like you’re hitting me with this stuff, and it’s like—you act like you have no clue.
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Victim: Is it my fault why you had sex with me?
Appellant: No, [Victim] quit punishing yourself.
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[Victim says she think she might be pregnant]
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Victim: Did you always wear a condom though?
Appellant: [Victim] can we talk about this later? I feel like you’re setting me up because you start talking on the phone because somebody is listening or recording you.
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Victim: But I don’t want to tell the police.
Appellant: Well, don’t tell the police. If you tell the police, [Victim] everything is over. Your brother and sister, whatever would have come of them for sure is done. Your mother can’t afford them, nothing like that. I’m done. I’m going to go to prison for the rest of my life. And then where are you going?
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Victim: ... I just want to know why you had sex with me. That’s [unintelligible] reason. I’m always thinking about it. I always blame myself. And I feel so disgusting about myself. And I feel like I did something wrong.
Appellant: You didn’t do anything wrong, [Victim], other than—the only thing I know of that I can tell you where you went—where you went wrong on your part is, is you wanted to do something, okay, and you wouldn’t take no for an answer. You insisted on it.
And then now that you’ve gotten older you’re like what the f* * *, now I feel dirty and stuff like that. And it’s like, well, from the time that that happened up until now, why didn’t you do this years ago?

Appellant was arrested the same day the call took place. During station house questioning by a detective, appellant contends that “he denied having sexual rela[271]*271tions or contact with [the victim] sixteen times.”

The rule of completeness did not require admission of appellant’s station house statements along with the controlled call

Appellant argues that, under the rule of completeness, his statement to the police, made later the samé day as the controlled call, should have been admitted right after the recorded telephone conversation with the victim. .

The rule of completeness does not apply here because appellant’s exculpatory statements to the detective do not clarify or shed light on his statements made to an entirely different listener, the victim in the controlled call. The rule has been applied to different parts of the same statement; at its most extreme, it has been applied to related statements to the same person.

Typically at trial, a defendant’s statement during police interrogation is hearsay; it is a statement “other than one made by the [defendant] while testifying at the trial ,.. offered in evidence to prove the truth of the matter asserted.” § 90.801(l)(c), Fla. Stat. (2014). When offered by the state, a defendant’s out-of-court statement falls under the admission exception to the rule against hearsay—it is offered “against” the defendant and is his own statement. § 90.803(18)(a), Fla. Stat. (2014). A defendant’s attempt to offer his own statement claming innocence during police questioning usually runs afoul of the rule against hearsay. The admission exception does not apply because the defendant is not offering it “against” a party, but to buttress his own case. See Calloway v. State, 210 So.3d 1160, 1183 (Fla. 2017) (“Self-serving hearsay statements are generally inadmissible.”). This application of the rule against hearsay often requires a defendant to take the witness stand if he wants to tell his story, where he is subject to cross-examination.'

■ Appellant sought to admit his prior statements under the rule of completeness, codified at section 90.108(1), Florida Statutes (2014), which provides in pertinent part:

When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require him or her at that time to introduce any other part or any other writing or recorded statement that in fairness ought to be considered contemporaneously.

(Emphasis added).

The purpose of the statute is to “avoid the potential for creating misleading impressions by taking statements out of context.” Larzelere v. State, 676 So.2d 394, 401 (Fla. 1996). As the Florida Supreme Court has explained,

Fairness is clearly the focus of this rule. Thus, when a party introduces part of a statement, confession, or admission, the opposing.party is ordinarily entitled to bring out the remainder of the statement. This rule is not absolute, and the correct standard is whether, in the interest of fairness, the remaining portions of the statements should have been contemporaneously provided to the jury.

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Carter v. State, 226 So. 3d 268, 2017 WL 1496270, 2017 Fla. App. LEXIS 5786 (Fla. Ct. App. 2017).

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