Petit v. State

92 So. 3d 906, 2012 WL 3021941, 2012 Fla. App. LEXIS 12118
CourtDistrict Court of Appeal of Florida
DecidedJuly 25, 2012
DocketNo. 4D09-4253
StatusPublished
Cited by4 cases

This text of 92 So. 3d 906 (Petit 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
Petit v. State, 92 So. 3d 906, 2012 WL 3021941, 2012 Fla. App. LEXIS 12118 (Fla. Ct. App. 2012).

Opinion

On Motion for Clarification

CIKLIN, J.

We grant the motion for clarification, withdraw our previous opinion and substitute the following in its place.

Introduction

Lukens Petit appeals his convictions for one count of felony murder, three counts of attempted felony murder, and one count of armed robbery. Petit received a life sentence for the felony murder and thirty years for each of the remaining convictions, all to be served concurrently. While ultimately we affirm the convictions, we write to discuss the Confrontation Clause arguments raised by Petit. As for all other arguments Petit raises, we find them to lack merit and do not discuss them further.

Background

On July 14, 2007, armed gunmen robbed a carwash in Pompano Beach. After the suspects fled in a vehicle, two of the victims pursued them onto southbound 1-95 until the suspects took the Hollywood Boulevard exit. By this point, the suspects were being chased by police cars. The suspects ran through an intersection and crashed into a vehicle containing three individuals, all of whom were seriously injured. One of the individuals inside the suspects’ vehicle was killed in the accident as well.

After Petit was arrested for his involvement in the robbery and automobile collision, Edder Joseph, the owner of a carwash and one of the robbery victims, testified at Petit’s bond • hearing.1 He said that he and his employee, Rubin Saint Remy, were at the carwash when a vehicle pulled in very fast; five men wearing homemade ski masks and holding guns, including at least one shotgun, got out of the vehicle and ordered everyone on the ground. The five men took Joseph’s'money, identification, and jewelry, got back into the vehicle, and fled the scene; Joseph and Saint Remy quickly entered one of the vehicles at the car-wash and pursued the suspects onto and down 1-95.

Joseph’s testimony at the bond hearing was read into the evidence at Petit’s trial because Joseph refused to testify. Sometime after the robbery, Joseph was the victim of a shooting, which he survived. Joseph then started living with various relatives and friends to elude authorities and anyone else. Petit objected to Joseph’s bond hearing testimony being admitted at trial, arguing that it violated the Confrontation Clause as understood in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). The trial court overruled the objection, finding that the state demonstrated that Joseph was unavailable.

At the trial, audio recordings of four 911 calls were admitted into evidence and played for the jury. The first call came from an individual reporting the robbery. The second was a call back from the 911 operator after the first call was disconnected. The third call originated from Saint Remy as he and Joseph pursued the suspects on 1-95, and the fourth call was [910]*910initiated when the third call was disconnected and a 911 operator called back. Petit objected to all of these calls being admitted, arguing that they were Confrontation Clause violations under Crawford as well. The trial court found all of the calls to be nontestimonial because they were part of an ongoing emergency and admitted them.

Bond Hearing Testimony

Petit argues on appeal that Joseph’s statements at the bond hearing were im-permissibly admitted because they violated his Sixth Amendment2 right to confront witnesses as explicated in Crawford. More specifically, Petit argues (1) the state did not prove Joseph’s unavailability, and (2) there was no meaningful opportunity for cross-examination at the bond hearing.

In State v. Belvin, 986 So.2d 516 (Fla.2008), our supreme court summarized the Crawford holding of the United States Supreme Court:

[I]n Crawford, the Supreme Court ... held the admission of a hearsay statement made by a declarant who does not testify at trial violates the Sixth Amendment if (1) the statement is testimonial, (2) the declarant is unavailable, and (3) the defendant lacked a prior opportunity for cross-examination of the declarant. The Court emphasized that if “testimonial” evidence is at issue, “the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.” Crawford, 541 U.S. at 68, 124 S.Ct. 1854. “Only [testimonial statements] cause the declarant to be a ‘witness’ within the meaning of the Confrontation Clause.” Davis v. Washington, 547 U.S. 813, 821, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006). “It is the testimonial character of the statement that separates it from other hearsay that, while subject to traditional limitations upon hearsay evidence, is not subject to the Confrontation Clause.” Id.

Id. at 520. The state concedes that Joseph’s statements at the bond hearing were testimonial, and we find no reason to question this concession. Therefore, the relevant inquiry regarding Joseph’s bond hearing testimony is whether the state proved Joseph’s unavailability and whether Petit had an opportunity for cross-examination.

“The trial court’s determination that a witness is ‘unavailable’ for confrontation purposes involves a mixed question of law and fact which this court reviews de novo, giving deference to the basic, primary or historical facts as found by the trial court.” Essex v. State, 958 So.2d 431, 432 (Fla. 4th DCA 2007) (citation and quotation marks omitted). Further, whether the bond hearing provided an opportunity for cross-examination for Confrontation Clause purposes is a purely legal question and should therefore be reviewed by this court de novo. See, e.g., Cromartie v. State, 70 So.3d 559, 563 (Fla.2011) (“The issue in this case is a pure question of law and therefore the standard of review is de novo.”).

As to the required analysis concerning unavailability in the instant case, the facts are uncontested. We must determine whether these facts could permit the trial court to find that the declarant, Joseph, was unavailable for Crawford purposes.

An investigator for the state attorney’s office testified that he was the individual responsible for locating Joseph. The investigator testified first about his interaction with Joseph back in March of 2009, [911]*911approximately six months before Petit’s trial. The investigator testified that Joseph was “scared to death” of testifying because “he had been shot several times because of just becoming involved with the police and he felt that testifying would be even worse.” According to the investigator, Joseph did not cooperate or agree to come to court. He said that he reached out to Joseph’s wife to try to locate Joseph the day before the trial. The investigator said that Joseph’s wife put Joseph on the phone at one point. Joseph told the investigator he was still frightened of testifying, that he thought this case was over because of a co-defendant’s trial, and that he lost his vision and had trouble walking as a result of being shot. Joseph said he was not living with his wife but was living with different relatives and friends to keep his location unknown. The investigator said that Joseph refused to testify and never disclosed his location.

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Cite This Page — Counsel Stack

Bluebook (online)
92 So. 3d 906, 2012 WL 3021941, 2012 Fla. App. LEXIS 12118, Counsel Stack Legal Research, https://law.counselstack.com/opinion/petit-v-state-fladistctapp-2012.