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Roop v. State
Citations: 228 So. 3d 633; 2017 WL 4393245Docket: 2D15-1573
Court: District Court of Appeal of Florida; October 4, 2017; Florida; State Appellate Court
Original Court Document: View Document
Devin Gregory Roop appeals his convictions for throwing a deadly missile at an occupied vehicle and for criminal mischief. The appeal, filed under Case No. 2D15-1573, stems from a trial in the Circuit Court for Polk County overseen by Judges John K. Stargel and Kelly P. Butz. The primary issue on appeal concerns the trial court's admission of a 911 call recording in which the victim, Frank Yeater, identifies Mr. Roop as the perpetrator. Mr. Roop argues this statement constitutes inadmissible hearsay; however, the trial court admitted it under the excited utterance exception to the hearsay rule. The appellate court finds no abuse of discretion in this admission and concludes that any potential error was harmless. The incident occurred on January 5, 2014, when Mr. Yeater reported that Mr. Roop, leaning out of a black car, threw a metal pipe at his truck as they passed each other on a country road. Although Mr. Roop's stepfather testified that he had been at home all day, the jury sided with Mr. Yeater, who had known Mr. Roop for over a decade and had a history of conflict with him. Following the incident, Mr. Yeater called 911 within minutes, reporting the event and later discovering the metal pipe that struck his vehicle. Law enforcement documented the incident but could not obtain fingerprints from the pipe. The State subsequently charged Mr. Roop, and the jury ultimately convicted him. The appellate court affirms the trial court's decisions in all respects. The trial court addressed a motion from the State regarding the admissibility of a recording of Mr. Yeater's 911 call, where he identified Mr. Roop as his assailant. The State argued that Mr. Yeater’s statement qualified as an excited utterance due to the circumstances surrounding the call, despite Mr. Roop’s counsel contending that Mr. Yeater was not under stress at the time he called and that there was a time lapse that negated the spontaneous statement exception. After reviewing the recording, the trial court ruled the redacted version, which included Mr. Yeater's identification of Mr. Roop, admissible. During Mr. Yeater's testimony, he confirmed that he called 911 approximately two minutes after the incident, expressing fear for his safety. Mr. Roop's counsel objected to the recording's admission but did not further challenge Mr. Yeater's testimony regarding the call. The redacted recording was allowed in evidence, and Mr. Yeater's identification of Mr. Roop was presented to the jury. Following this, Mr. Roop’s stepfather, Russell Brown, Sr., was called as a witness. Mr. Roop's biological son is the stepbrother of Mr. Roop and was present during an incident involving Mr. Yeater five days prior to when a pipe was thrown at Mr. Yeater's car. Mr. Brown testified that Mr. Roop spent the day of the incident at his residence to celebrate Mr. Roop's mother’s birthday. During cross-examination, Mr. Brown acknowledged that he had not disclosed Mr. Roop's alibi until he was subpoenaed by the State at the end of 2014, despite being aware of Mr. Roop's prosecution for the pipe-throwing incident. Initially, Mr. Brown claimed he did not mention it to avoid involvement but later stated he did not realize the timing of the events. Mr. Brown also noted that while he discussed the case with Mr. Roop, he was not informed that the incident coincided with the celebration at his home. Mr. Roop did not testify, and the jury convicted him on both charges. The trial court denied Mr. Roop's motion for a new trial and sentenced him to concurrent fifteen-year terms for throwing a deadly missile and time served for criminal mischief. Mr. Roop appealed, arguing that the trial court improperly admitted a redacted recording of a 911 call identifying him, which he claimed was hearsay with no applicable exceptions. The State contended that the recording was admissible as an excited utterance. The court agreed with the State, affirming the trial court's discretion in admitting the statement under the excited utterance exception to hearsay rules, which requires that the statement relate to a startling event, be made shortly after the event, and while the declarant was under stress from the event. Proper foundation must be established for all three elements under Florida evidence rules. A trial court's decision regarding the foundation laid for a statement's admissibility is subject to appellate review for abuse of discretion. The court's determination of whether a statement qualifies as an excited utterance is a preliminary factual question, also reviewed for abuse of discretion. The appellate court is obligated to affirm the trial court's admission of the 911 identification of Mr. Roop by Mr. Yeater unless the decision was arbitrary or unreasonable. Although the trial court's procedure in admitting the recording raised concerns, specifically regarding the lack of a formal hearing outside the jury's presence and failure to explicitly rely on the excited utterance exception, the appellate court interprets the ruling as implicitly applying this exception. This interpretation is supported by the absence of objection from Mr. Roop regarding the procedure and the State's presentation of evidence relevant to the excited utterance elements. The trial court's consideration of the excited utterance exception aligns with the factual elements necessary for admissibility, particularly concerning the potential for reflective thought. The criteria for an excited utterance were met: the event was startling (a passenger threw a metal pipe at Mr. Yeater’s truck), and there was insufficient time for Mr. Yeater to contrive or misrepresent his identification before calling 911. Courts refrain from rigid time-based rules when evaluating the admissibility of statements made after a startling event, focusing instead on whether there was sufficient time for the declarant to engage in reflective thought. Key factors in this assessment include the nature of the event, the time elapsed before the statement, the declarant's mental state, and the context of the statement. In a relevant case, Mr. Yeater's testimony and his 911 call demonstrated that after being struck by a metal pipe, he quickly identified Mr. Roop as the assailant within two minutes while feeling frightened and anxious due to prior conflicts with Roop. The circumstances indicated that Yeater's identification was impulsive rather than fabricated, satisfying the criteria for an excited utterance. Florida courts have previously upheld excited utterance exceptions in similar situations, where emotional responses were provoked by stressful events, even when longer intervals existed. In Werley v. State, the court ruled that statements made by a domestic battery victim over an hour after the incident were admissible as excited utterances. Similarly, in Edwards v. State, a witness's statement made ten minutes post-accident was deemed admissible. Rivera also upheld the admissibility of a battery victim's statements made fifteen minutes after the incident. The trial court's admission of a 911 call aligns with these precedents, and no abuse of discretion was found regarding whether Mr. Yeater had enough time to fabricate or misrepresent his statements. The dissent argued that Mr. Yeater's testimony indicated he had time for reflective thought, thus necessitating the State to prove he did not reflectively think before making his statement. This argument was dismissed on procedural grounds, as it was not raised by the appellant, Mr. Roop, and appellate courts typically do not reverse on unargued grounds. Substantively, it was determined that the dissent's interpretation of Mr. Yeater's testimony—that he acknowledged having time to reflect—was not the only reasonable interpretation. The trial judge noted Mr. Yeater's fear and uncertainty after the incident, which supported the admission of the 911 recording despite objections. The trial court's ability to observe Mr. Yeater during his testimony allows for a credible assessment of the facts related to his 911 call. The appellate court expresses reluctance to overturn the trial court's judgment regarding these facts. Mr. Yeater's two-minute delay in calling 911, following an incident where a pipe was thrown at his truck, can be reasonably interpreted as a reaction driven by fear rather than conscious deliberation. This decision to call 911 shortly after the event aligns with typical responses of crime victims under stress. The dissenting opinion’s alternative interpretation does not meet the standard for overturning a trial court's discretion. Furthermore, defense counsel's reference to Mr. Yeater's deposition testimony is considered misplaced since it was not presented to the trial judge and is not part of the appellate record. Although there are arguments about the nature of Mr. Yeater's testimony and the calmness of the 911 call, the appellate court finds no abuse of discretion in admitting the recording. Even if there had been an error regarding the admission of the recording, it would not be deemed harmful as it did not have a reasonable possibility of affecting the verdict. Mr. Yeater's identification of Mr. Roop could be considered in two respects regarding the factfinding process: as substantive evidence of Mr. Roop's guilt and as a prior consistent statement that could enhance Mr. Yeater's credibility. The first interpretation is dismissed, as Mr. Yeater's identification was merely cumulative of his trial testimony. Relevant case law indicates that the admission of hearsay that duplicates already admitted evidence is considered harmless error. The 911 recording did not add any significant value to the identification since Mr. Yeater had already identified Mr. Roop during trial. The second interpretation, regarding the credibility-enhancing effect of the 911 call, raises concerns primarily due to the nature of the trial, which was heavily reliant on credibility determinations between Mr. Yeater and Mr. Brown, who provided Mr. Roop's alibi. Although the State emphasized the 911 recording during closing arguments, its impact is mitigated by two factors. First, Mr. Yeater's motive to fabricate his testimony was established prior to both the 911 call and the trial, suggesting that any credibility issues would apply to both instances of his statement. Hence, a jury would likely view both statements with skepticism. Second, Mr. Brown's alibi testimony was significantly undermined during cross-examination, further diminishing the likelihood that the 911 call had a substantial effect on the jury's assessment of credibility. Overall, the potential bolstering effect of the 911 call was minimal and did not significantly impact the trial outcome. In Rivera v. State, the court addressed the impact of a prosecutor's comments on a victim's credibility, determining that such remarks were harmless due to the highly incredible nature of the defendant's testimony. Mr. Brown, who regarded Mr. Roop as a son, acknowledged knowing about Roop's prosecution but failed to disclose facts supporting Roop's alibi for nearly a year. His explanations for this delay were inconsistent and lacked credibility. The court found it improbable that a jury would find his testimony credible, especially given the minor supporting effect of the 911 recording in question. Consequently, even if the admission of the 911 call constituted an error, it was deemed harmless beyond a reasonable doubt, leading to the affirmation of Roop's judgment and sentence. Judge Rothstein-Youakim dissented, arguing that the trial court erred by admitting the 911 call, which he believed did not meet hearsay exceptions and that the State failed to prove its admissibility. He contended that the error was not harmless, advocating for a reversal and a new trial. Background details reveal that Yeater had a longstanding acquaintance with Roop and his stepbrother, having known them for over ten years and shared school experiences. The incident in question occurred on New Year's Eve 2013, involving a confrontation between Yeater and Roop's stepbrother in Roop's presence, with authorities later being notified. Yeater reported that Roop threw an object from a car at his truck, which Roop allegedly knew belonged to Yeater. The object hit the driver's side door, and the car sped away. Yeater turned around, called 911 about two minutes later, and described the incident, stating that Roop was responsible. During the call, he narrated his search for the object, which he later identified as a metal pipe. A sheriff's deputy responded, documented the truck's damage, and collected the pipe, but no fingerprints linked Roop to the incident. The State sought to admit a redacted version of the 911 call, arguing Yeater's statements were admissible as spontaneous statements or excited utterances, despite his calm tone. Roop objected, claiming the State was attempting to bolster Yeater's testimony and referenced Yeater’s prior deposition indicating initial indifference to the incident. The trial court granted the State's motion without specifying the hearsay exception applied. At trial, Yeater confirmed the events as previously stated and acknowledged pulling over after the incident. Yeater initially intended to continue driving after an incident involving Roop, who threw a piece of metal rebar at Yeater's truck, but he later decided to turn around and report it. During his 911 call, Yeater expressed fear regarding Roop's intentions but maintained a calm demeanor. Despite Roop's hearsay objections, the State introduced the redacted 911 audio recording, which included Yeater's immediate identification of Roop as the perpetrator. Yeater described the incident, stating that he was looking for the rebar and noted the damage to his truck. On cross-examination, he admitted that he had contemplated letting the matter go but chose to contact the police after realizing the situation might escalate. Roop's stepfather, Russell Brown Sr., testified that Roop was with him on the day of the incident, which coincided with a family celebration, but acknowledged he hadn't informed authorities of Roop's whereabouts until prompted by defense counsel. The State argued that Yeater's testimony was credible and highlighted the lack of hesitation in his voice during the 911 call, suggesting he was truthful and not fabricating the incident. The State maintained that the 911 recording corroborated Yeater's account. The analysis notes that while prior consistent statements are generally inadmissible as hearsay, there are exceptions that could apply in this case. An excited utterance is a statement made during or immediately after a startling event while the declarant is under stress, satisfying three criteria: the event must be sufficiently startling, the statement must occur before the declarant has time to fabricate, and it must be made under stress from the event. The trial court admitted Yeater's 911 call as an excited utterance. However, since Yeater identified Roop as the perpetrator after developing a dislike for him and after the incident, the excited utterance exception may not apply. Statements made under excitement lack reflective capacity, ensuring reliability; if time for reflection has passed, the burden shifts to the proponent to prove that reflective thought did not occur. The dissent argues that Yeater had sufficient time for reflective thought, and thus, challenges the majority's acceptance of his statement as an excited utterance. The State bears the burden of establishing the statement's admissibility under this exception to the hearsay rule. Failure to establish a proper predicate can render otherwise admissible testimony hearsay, allowing for an objection based on hearsay to preserve the issue for appellate review. In the case referenced, Yeater's prior consistent statement was presumptively inadmissible as hearsay unless it qualified as an excited utterance or met another exception. For an excited utterance to be admissible, the proponent must satisfy three factual preconditions, as outlined in Florida Statutes. When Roop objected to the admission of the statement as an excited utterance, the State bore the burden to prove, by a preponderance of the evidence, the necessary factual circumstances supporting its admission. These include ensuring the statement was made before the declarant had time for reflective thought. The trial court's failure to make an explicit finding on this factual circumstance warrants a reversal, as the record does not support the conclusion that the statement was made impulsively. Yeater's testimony indicated a conscious decision-making process rather than impulsive behavior, contradicting the majority's interpretation. Previous cases cited by the majority either lacked evidence of reflective thought or did not provide clarity on what transpired between the event and the statement, further underscoring the need for careful consideration of the circumstances surrounding the declarant's statement. The identification made by Yeater could not be considered an excited utterance due to evidence indicating he had engaged in reflective thought prior to making the statement. This conclusion aligns with case law, such as Elysee v. State, which ruled that a victim's statement made after a period of reflection, even while visibly upset, is inadmissible as an excited utterance. Similarly, Hutchinson v. State emphasized that mere emotional state does not suffice for admissibility if sufficient time for reflection exists. The court noted that Yeater's testimony indicated ample opportunity for reflective thought before contacting the police, as he considered the implications of the situation. The state’s argument for the statement's admission was based solely on Yeater's emotional state, which proved insufficient. Consequently, the identification was deemed "completely hearsay" without falling under any exceptions. The analysis then shifted to whether the error in admitting this evidence was harmless beyond a reasonable doubt, as established in Geissler v. State, where the state must demonstrate harmlessness, particularly in a case lacking physical evidence and reliant on eyewitness testimony. The credibility of Yeater versus another witness became critical, with the potential impact of the improperly admitted statement highlighted in close cases. The majority opinion references the "tipsy coachman" doctrine, which allows an appellate court to affirm a trial court's decision if the outcome is correct, even if the reasoning is flawed, provided there is supportive evidence in the record. The author assesses the admissibility of a statement made by Yeater during a 911 call, concluding it does not qualify as a "spontaneous statement" under section 90.803(1) due to the presence of reflective thought and a lack of immediate connection between the event and Yeater's identification of Roop. The author cites case law indicating that statements made after a significant delay from the event are inadmissible if they allow for reflective thought. Furthermore, the pre-existing animosity between Yeater and Roop casts doubt on Yeater's credibility, suggesting that both his 911 call and trial testimony are equally suspect due to his motive to lie. The author argues that the State's reliance on Yeater’s immediate identification during closing arguments inadvertently increased the risk of harm, as it could mislead the jury regarding the credibility of Yeater's testimony. Additionally, the author contends that Brown's alibi testimony possessed sufficient credibility to warrant consideration. Consequently, the author believes there is a reasonable possibility that the erroneous admission of Yeater's identification during the 911 call influenced the jury's verdict, leading to a dissenting opinion on the need for a new trial due to the prejudicial impact of the hearsay evidence.