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Date: 12-20-2018
Case Style:
DAVID SMITH, II vs STATE OF FLORIDA
Case Number: 17-1228
Judge: Jamie Rutland Grosshans
Court: DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT
Plaintiff's Attorney: Pamela Jo Bondi, Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General
Defendant's Attorney: Paula C. Coffman
Description:
The State charged Smith with the first-degree murder of a twenty-month-old child who was in his care on the afternoon that she died. During trial, the State sought to introduce a recording of a phone conversation between Smith and the child’s mother (“Mother”) that occurred on the day of the child’s death. Mother recorded this conversation using an app on her cell phone. Smith objected to the admission of the recording, arguing that Florida’s wiretap statute prohibited its admission. Finding that Smith had no expectation of privacy, the trial court overruled Smith’s objection, admitted the recording into evidence, and allowed the State to publish it to the jury. Although Mother’s statements could be understood, Smith’s words on the recording were completely unintelligible. As reflected in the trial transcript, the conversation was as follows: [Mother:] What you doing? [Smith:] (Unintelligible.) [Mother:] What? [Smith:] (Unintelligible.) [Mother:] Yes. [Smith:] (Unintelligible.) [Mother:] What? [Smith:] (Unintelligible.) [Mother:] Yeah. Pick her up. [Smith:] (Unintelligible.) [Mother:] Yo. 1 Smith also challenges the denial of his request for a special circumstantial evidence instruction. We conclude that the trial court did not abuse its discretion in declining to give the requested instruction. See Jackson v. State, 25 So. 3d 518, 531 (Fla. 2009).
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[Smith:] (Unintelligible.) [Mother:] What is she doing? [Smith:] (Unintelligible.) [Mother:] She’s still not waking up? [Smith:] (Unintelligible.) [Mother:] She’s still not waking up? [Smith:] (Unintelligible.) [Mother:] Put her in a cold shower, then. [Smith:] (Unintelligible.) [Mother:] Yeah? [Smith:] (Unintelligible.) [Mother:] Okay. Well, call 911. I’m on my way. [Smith:] (Unintelligible.) The State later introduced into evidence, with no objection from Smith, a video recording of a police interview with him in which he stated the following: [Detective:] You also know about her phone and the phone app; right? [Smith:] Yeah. [Detective:] It records every phone call? [Smith:] Yeah.
After deliberations, the jury found Smith guilty of first-degree murder as charged. II. Admissibility Under the Wiretap Statute Whether the Florida wiretap statute applies to a particular recording involves a matter of law and, therefore, is subject to de novo review. See McDade v. State, 154 So. 3d 292, 296–97 (Fla. 2014). Section 934.03(1), Florida Statutes (2016), generally prohibits the intentional interception of oral communications, which is defined as “any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation.” Id. § 934.02(2). When a protected oral communication has been intercepted, without consent and in violation of
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the wiretap statute, no part of the interception may be received into evidence in any court proceeding, including a criminal trial. See id. § 934.06. Here, Mother recorded her conversation with Smith. The record does not demonstrate that Smith gave Mother permission to record the conversation or that he had reason to know that she would record the call. Accordingly, Mother recorded the conversation in violation of the Florida wiretap statute. Thus, we hold that the trial court erred in admitting this recording. The State’s argument to the contrary does not persuade us. On appeal, the State contends that Smith admitted in the police interview that he knew Mother recorded phone conversations, and therefore, had implicitly consented to the recording. However, the dialogue relied on by the State does not indicate when Smith learned of Mother’s practice to record all cell phone conversations. Moreover, no other evidence eliminates the ambiguity. Thus, the record does not support the State’s argument. III. Harmless Error Analysis We next consider whether admission of the recording was harmless error. See State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986). As the Florida Supreme Court explained, the harmless error test “places the burden on the [S]tate, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict.” Id. Application of this test “requires an examination of the entire record by the appellate court including a close examination of the permissible evidence on which the jury could have legitimately relied, and in addition an even closer examination of the impermissible evidence which might have possibly influenced the jury
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verdict.” Id. Based on our examination of the entire record, we conclude that the admission of the recording constituted harmless error. A. Impermissible Evidence The recording was used primarily by the State to corroborate Mother’s extensive testimony regarding the content of the conversation. No intelligible statements of Smith were discernible in the recording, only the sound of his voice. Nor, during the recording, did Mother accuse Smith of any wrongdoing. In fact, the recording actually supported Smith’s theory of innocence. The defense attorney used this recording both in cross examination and in his closing argument to accuse Mother of being the perpetrator of the crime and support Smith’s theory of defense. B. Permissible Evidence The forensic evidence in this case was extensive and compelling. Three different medical professionals testified as to the child’s injuries, which included a blow to the left side of her head that could have, on its own, been lethal; tremendous blunt force impact to her torso that lacerated her liver and injured other organs; and recent injuries to her genital area. The medical professionals also testified that none of the injuries were consistent with a minor accident or fall and all of the injuries were acute at the time of her death, including a large visible hematoma on the side of the child’s head. The jury was provided with numerous autopsy photos depicting fresh bleeding across the brain, a torn liver, and broken ribs. A medical expert testified to the seriousness of these injuries and the immediate impact they would have had on the child’s ability to function normally, sit upright, ride in a car, maintain consciousness, or be carried without exhibiting extreme pain.
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Three lay witnesses testified that they did not notice anything abnormal about the child at the time Mother left for work, including two of Smith’s relatives who observed the child after Mother’s departure. They testified that the child was sitting upright in the back seat of the vehicle, her eyes were open, she seemed responsive, and she did not exhibit any signs of pain or discomfort. One of the witnesses saw Smith carry the child over his shoulder into the motel room where he was living. Surveillance video was also admitted that showed the conscious child walking to the car and later entering the motel room alone with Smith. Prior to the admission of the recording, Mother testified about the content of the phone conversation she had with Smith, noting that he sounded hysterical and indicated that he could not wake the child. The jury also heard from numerous other witnesses, including emergency personnel and law enforcement who testified that when they arrived on the scene the child was already cold and stiff, the room smelled strongly of chlorine, and the bedsheets had been removed. The child’s blood was found on items in the motel room, but no blood was found in the vehicle in which the child was a passenger earlier that afternoon. The only explanation that Smith initially gave to detectives for the child’s injuries was that he put the child in the shower and left momentarily, only to return and find her unconscious. He also testified that she had accidentally been hit by a door the day before.
Outcome: For the reasons given above, we conclude that there is no reasonable possibility that the admission of the recording contributed to the jury’s verdict and, therefore, its admission constituted a harmless error. Accordingly, we affirm the conviction and sentence in this matter.
AFFIRMED.
Plaintiff's Experts:
Defendant's Experts:
Comments: