AUSTIN EVANS, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Austin Evans appealed his conviction, arguing that the trial court improperly admitted hearsay from a 911 call, that the prosecutor engaged in improper jury selection tactics, and that the prosecutor's closing argument was unfair. The Florida District Court of Appeal affirmed the conviction but reversed the sentence to allow the trial court to determine whether Evans qualifies as a prison releasee reoffender.
The court affirmed that the victim's hearsay statement was properly admitted as an excited utterance under Florida law; the prosecutor's hypothetical questions during jury selection approached but did not cross the line of improper 'pre-trying,' so the trial judge did not abuse discretion in denying the motion to strike; and the prosecutor's closing argument was not improper and did not deprive Evans of a fair trial.
[1] A hearsay statement is admissible as an excited utterance if it relates to a startling event or condition and was made while the declarant was under the stress of excitem…
[2] Hypothetical questions posed to prospective jurors during jury selection may approach but not cross the line of improperly pre-trying a case, and the trial court's discre…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“A statement or excited utterance relating to a startling event or condition made while the declar-ant was under the stress of excitement caused by the event or condition.”
Definition of excited utterance exception to hearsay rule under Florida law, which justified admission of the 911 call
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceEvans was convicted of a crime involving a loaded gun. A victim made a 911 call reporting the incident, during which she expressed panic and checked a…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Excited Utterance Exception To Hearsay Rule cases and more on FLexlaw
FLETCHER, Judge.
Austin Evans seeks reversal of his conviction and, if unsuccessful in so doing, a remand to the trial court on a sentencing issue. We affirm the conviction, but reverse the sentence and remand for a determination of whether Evans qualifies for sentencing as a prison releasee reoffender. Evans contends that the trial court erred by allowing into evidence hearsay from a tape of the victim’s 911 telephone call. The State argues that the victim’s hearsay statement was properly admitted into evidence as an excited utterance as defined by section 90.803(2), Florida Statutes (2001).1 In this regard the trial court noted:
“I remember her [victim’s] testimony very well. I remember her as being in a controlled] panic. And she tried to check the gun to relieve herself of the anxiety that built up about this whole episode. It didn’t give her any relief to find that the thing was loaded. She was going to calm down — she was going to talk herself down, she found a way to calm down if only that gun was unloaded. She checkfed] the gun, found out it was loaded, and then she could not find much in the way of calm time to reflect in my opinion.”
T. 26.
We agree with the trial judge that the hearsay statement qualified for admission as an excited utterance.
Evans also contends that the prosecutor’s hypothetical questions during jury selection were an improper “pre-trying” of the case, thus the panel should have been set aside. We conclude, however, as did the trial judge, that the prosecutor approached the line of pre-trying the case, but did not cross it. The denial of Evan’s motion to strike the panel was not an abuse of the trial judge’s discretion. See Peri v. State, 426 So. 2d 1021 (Fla. 3d DCA)(latitude which is given parties in examining prospective jurors is subject to judge’s sound discretion), rev. denied, 436 So. 2d 100 (Fla.1983).
Evans also argues that the prosecutor’s closing argument was so improper as to deprive him of a fair trial. Our review indicates to the contrary.
We affirm Evans’ conviction. We do, however, set aside the sentence and remand the case to the trial court in light of the State’s concession that there remains a question as to Evans’ status, i.e., whether he qualifies for sentencing as a prison releasee reoffender. Affirmed in part; reversed in part; and remanded for resentencing.
. Section 90.803(2), Florida Statutes (2001) reads:
"(2) EXCITED UTTERANCE. — A statement or excited utterance relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.”