GEORGE BLOUNT, JR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 1st DCA | 2014-10-31
No. 1D13-2579
VAN NORTWICK, WETHERELL, and MAKAR, JJ., concur.
152 So. 3d 29 Florida District Court of Appeal, First District (2014) Positive Treatment
Cited by 2 cases

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Synopsis

George Blount was convicted of attempted second-degree murder for a bar shooting and sentenced to 15 years. On appeal, he challenged the admission of the victim's deposition under the past recollection recorded hearsay exception, but the court affirmed, finding sufficient foundation under the correct legal standard established in Polite II.


Holding

The court affirmed the admission of the victim's deposition. The victim's testimony was sufficient to establish the necessary foundation under Polite II because he testified that: (1) he then had insufficient memory of the events, (2) he once had knowledge of these events, (3) he described the events in his deposition when they were fresh in his mind, and (4) he told the truth in his deposition about the events that he remembered at that time.


Headnotes

[1] The admission of past recollection recorded under section 90.803(5), Florida Statutes, requires the witness to indicate that the statement was made when the events were f…

[2] A witness's trial testimony establishing insufficient memory of events, prior knowledge of those events, and that the statement was made when the events were fresh in the…

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Key Quotes

“the admission of past recollection recorded under section 90.803(5) requires the witness to indicate that the statement was made at a time when the events were fresh in his or her mind and also attest to the accuracy of the memorandum or record.”

Establishes the correct legal standard from Polite II for admitting past recollection recorded evidence

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Facts & Procedural History

Appellant was convicted of attempted second-degree murder as a principal for a shooting that occurred during a fight at a bar and was sentenced to 15 …

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Opinion of the Court
PER CURIAM.

PER CURIAM.

Appellant was convicted of attempted second-degree murder as a principal for a shooting that occurred during a fight at a bar. He was sentenced to 15 years in prison. This is his direct appeal.

Appellant raises one narrow issue: whether the trial court erred in admitting the victim’s deposition under the past recollection recorded exception to the hearsay rule in section 90.803(5), Florida Statutes (2012),1 because the State did not establish the foundation necessary to meet the exception. We affirm.

At trial, Appellant objected to the admission of the deppsition based upon a lack of foundation; he did not object on any other ground. The trial court overruled the objection and admitted the deposition based upon the totality of the circumstances test embraced by the court in Polite v. State, 41 So.3d 935 (Fla. 5th DCA 2010) (Polite I). The State concedes that the trial court’s reasoning was erroneous because in Polite v. State, 116 So.3d 270 (Fla.2013) (Polite II), the Florida Supreme Court quashed Polite I and rejected the totality of the circumstances test. Nevertheless, the State argues that we should affirm the trial court’s ruling under the “tipsy coachman” doctrine because the foundation presented below was sufficient under Polite II. Appellant responds that the foundation was not sufficient under Polite II. We agree with the State.

In Polite II, the Court held that “the admission of past recollection recorded under section 90.803(5) requires the witness to indicate that the statement was made at a time when the events were fresh in his or her mind and also attest to the accuracy of the memorandum or record.” 116 So.3d at 278; see also id. at 279 (stating that the witness “must testify that the recorded statement accurately reflects the witness’s knowledge”). Here, unlike several recent cases in which we reversed and remanded for a new trial when the trial court admitted statements under section 90.803(5) based on the totality of circumstances test in Polite I, 2 the victim’s trial testimony established that he then had an insufficient memory of the events surrounding the shooting, that he once had knowledge of these events, that he described the events in his deposition when they were still fresh in his mind, and that he told the truth in his deposition about the events that he remembered at that time. This testimony is sufficient under Polite II to establish the necessary foundation to admit the victim’s deposition under section 90.803(5).

Appellant’s reliance on Kimbrough v. State, 846 So.2d 540 (Fla. 4th DCA 2003), is misplaced. That case involved a declar-ant who “conveniently forgot making the statement” at issue, id. at 542, and the basis of the appellate court’s decision reversing the admission of the declarant’s statement under section 90.803(5) was that the declarant himself “could not testify either that the statement was his or that it was accurate.” Id. at 544. Here, the victim specifically testified that he remembered giving his deposition and he also *31attested to the truthfulness of what he said in his deposition. Accordingly, Kim-brough is distinguishable.

In sum, for the reasons stated above, we affirm Appellant’s judgment and sentence.

AFFIRMED.

VAN NORTWICK, WETHERELL, and MAKAR, JJ., concur.


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Citator

Cited By

  • Schluck v. State, 329 So. 3d 231 (Fla. 1st DCA 2021)
    …n appeal or review is a waiver of the point.”). While the State appeared to abandon the public record exception in the post-trial proceedings, that does not foreclose this Court from affirming under the tipsy coachman doctrine.6 See Blount v. State, 152 So. 3d 29, 30 (Fla. 1st DCA 2014) (affirming criminal conviction under tipsy coachman doctrine); Taylor v. State, 146 So. 3d 113, 115 (Fla. 5th DCA 2014) (affirming criminal conviction and admission of statements as excited utterances under the tipsy coachman…
  • Roberts v. State (Fla. 1st DCA 2019)
    …nt. Young later gave the caveat that her statement was truthful, except when she said that Roberts had a shotgun on the night of the robbery. Young’s testimony laid a sufficient foundation for the admission of her past statement. Blount v. State, 152 So. 3d 29 (Fla. 1st DCA 2014). Admission of a past recorded recollection of a witness is proper when the witness’s trial testimony shows: the witness does not remember the events surrounding the shooting, the witness once had this knowledge, the witness desc…

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