GROVER L. LEBLANC, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Grover LeBlanc appeals his convictions for lewd assault in the presence of a minor and sexual battery upon minor children. The Florida appellate court reverses and remands for a new trial, finding that the trial court improperly admitted a prejudicial tape recording of an interview between the alleged victims and the boyfriend of their mother's because it constituted inadmissible hearsay that did not qualify as a prior consistent statement.
The tape recording was inadmissible hearsay that did not qualify under the prior consistent statement exception. The prior consistent statements were fatally defective because they were not made before a motive to fabricate existed; they were made to the very person accused of manipulating the children; they contained highly suggestive questioning; and the boyfriend's inflammatory accusations could not constitute his own prior consistent statements. The admission of this evidence constituted reversible error.
[1] A tape recording of an interview containing prejudicial hearsay statements by child victims and a third party, made prior to reporting alleged incidents to police, consti…
[2] Prior consistent statements offered to rebut a charge of improper influence, motive, or recent fabrication must have been made prior to the existence of a motive to fabri…
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Join FLexlaw to unlock all legal intelligence“the tape recording [made by the boyfriend of the child victims' mother] of an interview which the boyfriend had with two of the child victims in this case prior to reporting the alleged sexual incidents to the police, containing highly prejudicial statements by both the boyfriend and the child victims, constituted inadmissible hearsay evidence.”
Establishes the core holding that the tape recording was inadmissible hearsay
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Join FLexlaw to unlock all legal intelligenceLeBlanc was convicted of four counts of lewd assault in the presence of a minor under age 16 and six counts of sexual battery upon a minor under age 1…
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PER CURIAM.
This is an appeal by the defendant Grover L. LeBlanc from final judgments of conviction and sentences for (1) four counts of lewd assault in the presence of a minor child under the age of sixteen [§ 800.04, Fla.Stat. (1991) ] and (2) six counts of sexual battery upon a minor child under the age of twelve [§ 794.011(2), Fla.Stat. (1991)].
We reverse and remand for a new trial on the ground that the trial court improperly admitted certain highly prejudicial hearsay statements made by the child victims and the boyfriend of the child victims’ mother.
We conclude that the tape recording [made by the boyfriend of the child victims’ mother] of an interview which the boyfriend had with two of the child victims in this case prior to reporting the alleged sexual incidents to the police, containing highly prejudicial statements by both the boyfriend and the child victims, constituted inadmissible hearsay evidence.
Sections 90.801(1), 90.802, Fla.Stat. (1991); Reyes v. State, 580 So. 2d 309 (Fla. 3d DCA 1991).
Indeed, the state made no claim at trial and makes no claim on appeal that these statements were admissible under any recognized exception to the hearsay rule, including the child victim hearsay exception [§ 90.803(23), Fla.Stat. (1991)], which was expressly abandoned by the state below. Instead, the state contends that this tape recording is admissible as a non-hearsay, prior consistent statement of the child victims “offered to rebut an express or implied charge against [the child victims] of improper influence, motive, or recent fabrication.” Section 90.801(2)(b), Fla.Stat. (1991).
It is urged that “the entire defense [in this case] was that [the boyfriend] had improperly manipulated the children into making false accusations against [the defendant],” and that the tape recording allegedly refutes this charge. [State’s answer brief at 5]. The fatal flaw in this argument is that the prior consistent statements were not made, as required by law, prior to the time that a motive to fabricate existed; indeed, the statements were made to the very person who is accused by the defendant of manipulating the children into making the statements and, indeed, contain highly suggestive questioning.
Moreover, the boyfriend’s inflammatory accusations against the defendant, as contained in the tape recording, plainly cannot constitute a prior consistent statement on his part under Section 90.801(2).
This being so, the trial court committed error in admitting this inflammatory tape recording in evidence; moreover, this error, under the circumstances of the case, constitutes a reversible error. See, e.g., Keller v. State, 586 So. 2d 1258, 1260 (Fla. 5th DCA 1991); Lazarowicz v. State, 561 So. 2d 392, 393-95 (Fla. 3d DCA 1990); Preston v. State, 470 So. 2d 836, 837 (Fla. 2d DCA 1985). Finally, we find no other reversible error in this case and reject all other points on appeal raised by the defendant. The final judgments of conviction and sentences under review are reversed, and the cause is remanded to the trial court for a new trial in which the above-stated tape recording, and all testimony concerning such recording, shall be excluded from evidence.
Reversed and remanded.
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Servando Ortuno v. State, 54 So. 3d 1086 (Fla. 1st DCA 2011)…garden as when she testified at trial. Because the alleged victim’s prior consistent statements “were not made, as required by law, prior to the time that a motive to fabricate existed,” the trial court erred by admitting them. See LeBlanc v. State, 619 So. 2d 1021, 1022 (Fla. 3d DCA 1993). Nor do we believe the error was harmless. The State offered no corroborating evidence of, or eyewitness to, the charged criminal acts. Rather, the case turned entirely on the perceived truthfulness of K.C. and appellant. T…
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Balduino Cortes v. State, 670 So. 2d 119 (Fla. 3d DCA 1996)…trolled by Coluntino v. State, 620 So. 2d 244, 245 (Fla. 3d DCA 1993) (holding that a prior consistent statement is not admissible where the statement was made after the crime had terminated and victim already had a motive to lie); LeBlanc v. State, 619 So. 2d 1021, 1022 (Fla. 3d DCA 1993) (holding inadmissible prior consistent statements not made before the time that the witness’s motive to fabricate existed). The cases relied on by the State permit prior consistent statements to rebut defense contentions tha…
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Jackson Loren Keffer v. State, 687 So. 2d 256 (Fla. 2d DCA 1996)…n. Second, even if the victim’s motive to fabricate was to mislead her roommate about the extent of her involvement with Keffer, that motive undoubtedly existed prior to the time she made the statement to the police officers. As in LeBlanc v. State, 619 So. 2d 1021, 1022 (Fla. 3d DCA 1993), “[t]he fatal flaw in this argument is that the prior consistent statements were not made, as required by law, prior to the time that a motive to fabricate existed.” This error cannot be deemed harmless. It is apparent that…
Authorities Cited
- Lazarowicz v. State, 561 So. 2d 392 (Fla. 3d DCA 1990)
- Preston v. State, 470 So. 2d 836 (Fla. 2d DCA 1985)
- Reyes v. State, 580 So. 2d 309 (Fla. 3d DCA 1991)
- Keller v. State, 586 So. 2d 1258 (Fla. 5th DCA 1991)