JEANNETTE SMITH JOHNSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The Florida First District Court of Appeal reversed Jeannette Johnson's convictions for grand theft, exploitation of an aged person, and forgery because the trial court improperly admitted affidavits as evidence under the business records exception when they constituted inadmissible hearsay at a second level that was not properly covered by any hearsay exception.
The court reversed because the affidavits contained inadmissible hearsay at a second level that was not properly covered by any hearsay exception. Although the business records exception might apply to the affidavits themselves, the testimonial content within them required separate justification, and the excited utterance exception was not properly invoked at trial or adequately supported by the record.
[1] Affidavits signed by a witness prior to arrest, attesting to facts relevant to a criminal prosecution, constitute hearsay when offered into evidence.
[2] The business records exception to the hearsay rule does not automatically render admissible the testimonial assertions contained within those records.
Previewing 2 of 6 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“the appellant argues that even if the affidavits themselves were admissible as business records, the information in the affidavits also constitutes hearsay that must qualify under an exception to be admissible”
Establishes the core legal issue: that business records exception covers the document form but not necessarily the hearsay content within
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Join FLexlaw to unlock all legal intelligenceJohnson was charged with forging checks drawn on the account of elderly woman Bernice Booker and stealing the funds. Before trial, Booker suffered a s…
The full statement of facts, procedural history, and disposition for this case are member content.
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ALLEN, Judge.
The appellant challenges her convictions for grand theft, exploitation of an aged person or disabled adult, and four counts of forgery. Because the trial court admitted forgery affidavits into evidence in violation of the hearsay rule, we reverse.
All of the charges against the appellant grew out of the prosecution’s theory that the appellant had forged checks drawn on the account of an elderly woman named Bernice Booker, and that the appellant had stolen the funds received upon presentation of the forged instruments. Prior to trial Ms. Booker suffered a stroke and died. To prove that Ms. Booker’s name was written on her cheeks without her consent and that she did not receive the proceeds from the cheeks, the prosecution offered affidavits to this effect which Ms. Booker had signed prior to the appellant’s arrest. The defense raised the objection that the affidavits were hearsay, but the trial court ruled that the affidavits were admissible under the business records exception. See § 90.803(6), Fla. Stat. (1991).
On appeal, the appellant argues that even if the affidavits themselves were admissible as business records, the information in the affidavits also constitutes hearsay that must qualify under an exception to be admissible. The appellee concedes that this second level of hearsay exists, see Van Zant v. State, 372 So. 2d 502 (Fla.App.1979), but maintains that in this case it is covered by the excited utterance exception. See § 90.803(2), Fla. Stat. (1991). We reject this contention. The prosecution never argued at trial that the testimonial aspect of the affidavits was admissible under the excited utterance exception, and the trial court never so ruled. Furthermore, the trial testimony upon which the appellee now relies is insufficient to support a conclusion that the statements in the affidavits qualify as an excited utterance.
Finally, we are unable to declare beyond a reasonable doubt on the record before us that the erroneous admission of this evidence “did not affect the jury verdict.” State v. DiGuilio, 491 So. 2d 1129, 1138 (Fla.1986). Accordingly, we reverse the appellant’s convictions and remand for a new trial.
SMITH and DAVIS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- State v. DiGUILIO, 491 So. 2d 1129 (Fla. 1986)
- van Zant v. State, 372 So. 2d 502 (Fla. 1st DCA 1979)