HAYWARD
v.
STATE
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Anthony Claitt appealed his battery conviction, challenging the trial court's admission of hearsay testimony from a neighbor reporting that the victim's eight-year-old daughter said the appellant was hurting her mother. The court affirmed, holding that the testimony was admissible as an excited utterance exception to the hearsay rule and that the point was not properly preserved for appeal due to counsel's failure to make a timely hearsay objection.
The court affirmed the admission of the hearsay testimony on two independent grounds: (1) the point was not properly preserved for appeal because trial counsel failed to object on hearsay grounds at the first opportunity and failed to make a motion to strike with a curative instruction; and (2) even if properly preserved, the testimony would have been admissible as an 'excited utterance' exception to the hearsay rule.
[1] To preserve an issue for appellate review, an objection must be timely, specific, and consistent with the argument raised on appeal.
[2] A statement made by a child immediately after witnessing a startling event, without time to contrive or reflect, and while still under the stress of the event, may be adm…
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Join FLexlaw to unlock all legal intelligence“the test regarding the time eclipsed is not a bright-line rule of hours and minutes”
Establishes that timing between startling event and statement is flexible under excited utterance exception
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Join FLexlaw to unlock all legal intelligenceDuring trial for battery, a witness testified that the eight-year-old daughter of the victim knocked on her door and made a statement. The child had w…
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Before POWELL, MCDONALD, and J. ADAMS, SR., J.J.
PER CURIAM.
FINAL ORDER AFFIRMING TRIAL COURT
Anthony Claitt appeals from his conviction for Battery after a jury trial, contending that the trial court erred by admitting hearsay testimony of a next door neighbor that the eight year old daughter of the victim knocked on her door and said “Tony (the Appellant), hurting my mommy”. We have read the Initial Brief of Appellant (the State did not appear and file an answer brief), read the entire transcript of the trial, and reviewed the filings in the record on appeal. We dispense with oral argument pursuant to Florida Rule of Appellate Procedure 9.320. After careful consideration, we affirm. Since Appellant’s trial counsel made no objection until the witness was asked to repeat her answer again1, and made no motion to strike and for a curative instruction, the point has not been properly preserved for appeal. See Padovano, Florida Appellate Practice (2011), Pp. 153-160.) Furthermore, even if Appellant’s counsel had made the proper objection and/or motions, the testimony would have been admissible as an “excited utterance” exception to the Hearsay Rule. The trial transcript demonstrates the following. The event surrounding the child’s statement was startling enough to cause the child to be excited. She saw the Appellant committing the battery on her mother. The statement was made without time to contrive or reflect. The child had run next door to the witness’ apartment, knocked on the door and when it opened several moments later, immediately made the statement. And the child made the statement under the stress of the startling event. The witness testified that Appellant was attempting to pull the child away and the child “was scared.” See § 90.803(2), Fla. Stat. (2009); Hayward v. State, 24 So. 3d 17 (Fla. 2009) (“‘[T]he test regarding the time eclipsed is not a bright-line rule of hours and minutes.’”); and see e.g. Floyd v. State, 18 So. 3d432, 445-446 (Fla. 2009) (7 year old child’s un-objected to hearsay statement to a neighbor after running from the scene that his grandfather (the defendant) shot his grandmother was admissible under the excited utterance exception).
AFFIRMED.
_/S/________________________
ROM W. POWELL Senior Judge
/S/
_/S/_________________________ ROGER J. MCDONALD JOHN H. ADAMS, SR. Circuit Judge Circuit Judge
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing order was furnished to Justin Bleakley, Assistant Public Defender, 435 N. Orange Avenue, Ste. 400, Orlando, Florida 32801; Lawson Lamar, State Attorney, 415 N. Orange Avenue, Orlando, Florida 32801; and Honorable W. Michael Miller, 425 N. Orange Avenue, Orlando, Florida 32801, by mail, this __24th__ day of __March_______________, 2011.
_/S/________________________________
Judicial Assistant