Massey v. State

109 So. 3d 324, 2013 WL 1136404, 2013 Fla. App. LEXIS 4409
CourtDistrict Court of Appeal of Florida
DecidedMarch 20, 2013
DocketNo. 4D11-1750
StatusPublished
Cited by3 cases

This text of 109 So. 3d 324 (Massey 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
Massey v. State, 109 So. 3d 324, 2013 WL 1136404, 2013 Fla. App. LEXIS 4409 (Fla. Ct. App. 2013).

Opinion

GROSS, J.

Following a jury trial, Reginald Massey was convicted of possession of cocaine and possession of a firearm by a convicted felon. We reverse because the defense was precluded from placing into evidence certain non-hearsay statements of the lead detective and the State’s main witness.

The charges in this case arose from a traffic stop. A detective with the Okeechobee County Sheriffs Office came across a car with two men stopped at a stop sign. The detective recognized Massey as the passenger, whom the detective described as having a “very panicked look in his eye.” The detective then proceeded to follow the car and keep it in sight, during which he eventually witnessed the driver of the car run a stop sign.

The detective conducted a traffic stop and arrested the driver for driving without a valid license. He then searched the car but found “nothing illegal.” Another detective searched Massey and found no illegal narcotics or weapons, just a “large sum of cash.” Massey was released from the scene.

Another officer then told the detective that he found a gun and drugs about 100 yards from the location of the traffic stop, near where the detective had first encountered the car. When the detective asked the driver what had been thrown from the car, the driver stated that it was a “gun or drugs probably, I don’t know.” The State was unable to identify Massey’s fingerprints on the gun.

At trial, the driver of the car testified that it was Massey who threw something out of the window and that he did not know of anything illegal in the car.

[326]*326The driver’s jailhouse interview with the arresting detective is central to this appeal. After the arrest at the traffic stop, the driver remained in custody. Ten days after the arrest, the detective, who said he made no promises or threats, tape-recorded an interview with the driver. The detective did a majority of the talking during the interview, “going back over what [the driver] had told him.” To illustrate the one sidedness of the discussion, an excerpt is in the footnote below.1 After the interview, Massey was charged in this case and the driver was released from jail.

At trial, Massey sought to introduce the recorded jailhouse interview. Defense counsel argued that the jury should hear the “manner in which this statement was taken,” to support the defense theory that the driver was “basically going with whatever he [wa]s told or whatever w[ould] assist him in this case,” and that the driver was “following and saying what he ha[d] to say.” In support of this argument, defense counsel explained that the tape recording was not hearsay, since the defense was not seeking to admit it for the truth of the matters asserted in the statement, which placed the blame for the criminal conduct on Massey. The trial judge refused to allow the defense to offer the tape recording, reasoning that it was not im[327]*327peachment, that the driver’s statements were not inconsistent with his testimony at trial, and that it was “wholesale admission of a hearsay statement.”

I

Massey first argues that the trial court erred in allowing testimony that a search of Massey at the scene of the stop uncovered “a large sum of cash.” At trial, defense counsel’s objection was that such evidence was “irrelevant and prejudicial.” In response, the trial judge informed counsel that there was case law holding such evidence to be admissible and that he thought he could put his hands on it if counsel wanted. Defense counsel told the judge not to “worry about it” and said he would withdraw his objection.

Because Massey was charged only with possession of cocaine, as opposed to sale or trafficking, his objection to the introduction of evidence of a “large sum of cash” discovered during the search of his person at the traffic stop was well taken. See Buitrago v. State, 950 So.2d 531, 532 (Fla. 4th DCA 2007); Ferguson v. State, 697 So.2d 979, 980-81 (Fla. 4th DCA 1997). However, defense counsel did not obtain a ruling from the trial court and ultimately withdrew his objection, so the issue was not preserved for appellate review. See Carratelli v. State, 832 So.2d 850, 856 (Fla. 4th DCA 2002) (noting that “[a] plethora of Florida cases support the notion that a party must obtain a ruling from the trial court in order to preserve an issue for appellate review”); Rios v. State, 920 So.2d 789, 790 (Fla. 5th DCA 2006).

II

We agree with Massey that it was error to exclude the tape recording of the jailhouse interview of the driver because, as offered by the defense, the recording was non-hearsay admissible to contradict the driver’s trial testimony by showing that the driver was a parrot repeating the testimony spoon-fed to him by the detective.

Hearsay is “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.” § 90.801(l)(c), Fla. Stat. (2010). The Supreme Court has recognized that a statement may “be offered to prove a variety of things besides its truth.” Foster v. State, 778 So.2d 906, 914-15 (Fla.2000). If an out-of-court statement “ ‘is offered for some purpose other than its truth, the statement is not hearsay and is generally admissible if relevant to a material issue in the case.’ ” Jackson v. State, 25 So.3d 518, 530 (Fla.2009) (quoting Penalver v. State, 926 So.2d 1118, 1132 (Fla.2006)).

No aspect of the hearsay rule is as misunderstood as the second part of the definition of hearsay—that the out of court statement is “offered in evidence to prove the truth of the matter asserted”—which McCormick describes as a “complicated and confusing condition.” McCormick on Evidence § 246 (2d ed. 1972). To explain the rationale for this aspect of the hearsay definition, McCormick looks to the reasons that hearsay is inadmissible in evidence2, namely

the want of the normal safeguards of oath, confrontation and cross-examination for the credibility of the out-of-court declarant. W, a witness, reports on the stand that D, a declarant, has stated that X was driving a stolen car 60 miles an hour at a given time and place. If the proponent is trying with this evi[328]*328dence to prove those facts about X’s conduct we are vitally interested in the credibility of D, his opportunity and capacity to observe, his powers of memory, the accuracy of his reporting, and his tendency to he or tell the truth. The want of oath, confrontation and opportunity to cross-examine D may greatly diminish the value of his testimony; the “hearsay dangers” are present. But the same evidence of D’s declaration may be offered for quite different purposes, as for example, to show that D at the time he spoke, was conscious, or was able to speak English, or as evidence of the utterance by D of defamatory statements in an action for slander brought by X. Where offered for these purposes, the evidence would still be evidence of an out-of-court statement by D, but its value would not at all hinge upon D’s credibility. Hence, when declarations are offered for these purposes, the want of safeguards for his credibility is of no consequence. We are interested only in the question, did D speak these words, and for that we have the testimony of W, on the stand, fully supported by all the safeguards.

Id. (footnotes omitted).

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Bluebook (online)
109 So. 3d 324, 2013 WL 1136404, 2013 Fla. App. LEXIS 4409, Counsel Stack Legal Research, https://law.counselstack.com/opinion/massey-v-state-fladistctapp-2013.