Harmon v. State
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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
JANUARY TERM 2003
ANTHONY K. HARMON,
Appellant,
CASE NO. 5D01-3236
v.
STATE OF FLORIDA,
Appellee.
___________________________________/
Opinion filed June 13, 2003
Appeal from the Circuit Court
for Seminole County,
O. H. Eaton, Jr., Judge.
James B. Gibson, Public Defender,
and Allison Havens, Assistant Public
Defender, Daytona Beach, for Appellant.
Charles J. Crist, Jr., Attorney General,
Tallahassee, and Pamela J. Koller, Assistant
Attorney General, Daytona Beach, for Appellee.
ORFINGER, J.
Anthony K. Harmon appeals his judgment and sentence for burglary with an assault or
battery. He contends the trial court improperly excluded certain testimony that supported his
defense. We disagree and affirm.
Harmon was convicted of burglarizing Blane Morse’s motel room. Morse, who worked
for a Minnesota tree trimming company, was staying in a motel while working on a project in
Florida. Morse testified that he had left the motel room door ajar to accommodate his
roommate who did not have a key. He awoke to find Harmon, whom he did not know, hitting
and choking him while screaming about money. Morse said that he struggled with Harmon
until two co-workers pushed the door to his room open. Morse told the co-workers to grab
Harmon because Harmon had taken his wallet, but Harmon eluded them. Morse also noticed
that his green duffel bag and address book were missing. Morse denied giving his address
book to Harmon as collateral for drugs, and was unsure how four empty beer bottles came to
be in his room.
One of Morse’s co-workers testified that he heard a commotion and went to Morse's
room. Harmon, whose shirt was ripped, was walking out of Morse’s room as the co-worker
approached. Morse was sitting on the edge of the bed, saying that Harmon had taken his
wallet. A short time later, the police found Harmon nearby hiding in a large pipe. The police
found Morse's address book and a motel room key among Harmon's possessions. The key
opened another room at the same motel in which the police found Morse's duffle bag. Despite
a search, Morse's wallet was not recovered.
During a proffer conducted outside the jury’s presence, the co-worker testified that
Harmon, who was angry as he left the room, said "he's [Morse] got my money." The court
excluded the statement, concluding that it was irrelevant, inadmissible hearsay.
Harmon testified that he had been selling crack cocaine to Morse on credit. According
to Harmon, Morse did not have any money so he "fronted" the crack to him, and took the duffle
bag as collateral. On the evening of the incident, Harmon went to Morse's room to get paid.
According to Harmon, while at the motel room, Morse offered Harmon more of his
possessions as additional collateral in lieu of payment. Harmon declined at first, but after he
and Morse had a couple of beers, Harmon agreed to take Morse's address book as
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additional collateral. When Morse asked for more crack, Harmon refused, and Morse then
hit him over the eye with an object, drawing blood. After the fight, Harmon walked out the door,
passing the two co-workers.
Harmon contends that his statement, "he's got my money" was admissible as an
exception to the hearsay rule. Section 90.803(2), Florida Statutes (2001), allows the
admission of "[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." To
be admissible under this hearsay exception:
1) The declarant must have experienced or witnessed an event startling enough
to cause nervous excitement;
2) The statement must have been made while under the stress of the excitement
caused by the startling event; and
3) The statement must have been made before there was time to contrive or
misrepresent.
See State v. Jano, 524 So. 2d 660, 661 (Fla. 1988).
We conclude that Harmon's statement meets the requirements of section 90.803(2).
First, he made the statement as he emerged from a bloody fight, an event startling enough to
cause nervous excitement. See Pope v. State, 679 So. 2d 710, 713 (Fla. 1996); Pedrosa v.
State, 781 So. 2d 470 (Fla. 3d DCA 2001). Second, Harmon was still under the stress of the
excitement caused by the fight. The fight had ended only moments earlier, and the co-worker
testified that Harmon was angry or excited when he made the statement. See Alexander v.
State, 627 So. 2d 35 (Fla. 1st DCA 1993). Finally, the statement was made as Harmon
retreated from the fight, a period of time too short to find that there was time to contrive the
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story. See id. Simply because the statement may be self-serving is not a sufficient basis to
exclude it. Stiles v. State, 672 So. 2d 850 (Fla. 4th DCA 1996); Alexander. But our
conclusion that Harmon’s statement was an excited utterance, standing alone, does not render
the statement admissible, unless the statement is otherwise relevant. In determining whether
the decision not to admit the proffered statement was an abuse of discretion, we must look
at what evidence the judge had available to him at the time the ruling was made.
Harmon’s counsel had reserved his right to make an opening statement. As a result,
at the time the judge made his ruling, he had before him only the testimony of Morse, the
alleged victim, and Morse’s co-worker to whom the statement was allegedly made. The
testimony of those two witnesses tended to show that Harmon had robbed Morse and did not
support the defense Harmon would offer later. The judge had no way of knowing that
Harmon’s defense would be that he had been invited into Morse’s hotel room and was
defending himself against Morse’s unprovoked attack.
Had the statement been offered during the defendant’s case, after he had set forth his
version of the incident, we would agree that the statement would have been admissible
because it might support his contention that Morse owed him money for drugs and became
enraged when he would not extend him further credit. But when we carefully examine the
evidence the trial judge had before him when he made the ruling, we fail to see how the
proffered statement could be viewed as relevant. The judge had no way of knowing what
defense, if any, would be asserted later in the trial. Harmon should have sought to admit the
statement during the presentation of his case.
AFFIRMED.
4
SAWAYA, J., concurs.
THOMPSON, C.J., dissents with opinion.
5
5D01-3236
THOMPSON, C.J., dissenting.
I respectfully dissent. Because the majority opinion clearly states the applicable law regarding the
admissibility of the hearsay as an excited utterance, I agree with that analysis. However, I disagree with
my brethren when they write that the hearsay was irrelevant during the state's case in chief. Further, the
majority states that the hearsay would have been admissible in the defense case, not considering that
Harmon tried and failed to have it admitted at that point, too.
During the state's case, Morse's co-worker testified that he arrived at the room to find Harmon
leaving, and Morse sitting on the bed stating that Harmon had taken his wallet. The witness was not
allowed to testify about Harmon's reaction. On a proffer by the defense, the witness testified that as
Harmon left the room, he angrily stated, "he's got my money." In ruling the hearsay inadmissible, the trial
court stated:
Well, if what had just happened, as has been testified to happened, then
there certainly wasn’t any question but that something of a violent act
occurred, and if all this was an explanation as to why the violent act
occurred, I don’t think that’s - - In the first place, it doesn’t establish any
kind of defense.
The state alleged that Harmon committed not only a battery, but a burglary. The fact that Morse
may have had Harmon’s money is not a defense to the allegations, but it could be inferred from Harmon’s
statement that the parties had a prior, drug-related business relationship and that Harmon was in the room
for business purposes with Morse’s consent.1 If Harmon had Morse’s consent, he could not be guilty of
1
The record indicates that other evidence tended to support the assertion of a prior relationship:
Harmon testified that he was invited to Morse's room that evening to drink beer. Empty beer bottles were
found in Morse's motel room by police, and Morse could not explain at trial whose bottles they were or
how they got in his room. Harmon testified that Morse previously gave him a green duffle bag as collateral
burglary. Relevant evidence is evidence tending to prove or disprove a material fact, section 90.401,
Florida Statutes (2001), and the question of consent to enter is certainly material to a burglary charge. The
statement is relevant because it tends to prove Harmon's theory: (1) it gives rise to the inference that the
victim left his motel room door open not for his roommate, but for Harmon and an anxiously awaited special
room service; (2) it contradicts the victim’s testimony that he never laid eyes on Harmon before the
incident; and (3) it impeaches the victim’s credibility in general.
While the majority concludes that the hearsay was not relevant during the state’s case because the
defense theory had not been established by that time, the cross examination of the witnesses during the
state’s case made it clear that the defense’s position was that Harmon was in Morse's motel room with
Morse's permission and in connection with drug dealings between the two. The defense asked Morse
about whether he had received drugs from Harmon or had given Harmon collateral for drugs, and whether
he had left the door ajar for Harmon. The defense also asked Morse, since he had testified that no coworkers had been in his room drinking, about empty beer bottles police found in his room. Even if it were
true, as the majority states in support of its affirmance, that "The judge had no way of knowing that
Harmon's defense would be that he was defending himself from Morse's unprovoked attack," it was
obvious that the defense was attempting to show that Harmon had been invited to Morse's room for drugrelated business.
Further, this statement should have been admitted during the state's case under the "rule of
completeness." Where the state has elicited testimony about part of a conversation, a defendant is entitled
for drugs, and Morse's green duffle bag was subsequently located in Harmon's motel room.
2
to cross-examine the witness about other relevant statements made during the conversation. Johnson v.
State, 653 So. 2d 1074 (Fla. 3d DCA 1995). The defense has the right to present the whole of the
conversation, Steinhorst v. State, 412 So. 2d 332, 338 (Fla. 1982), as a matter of fairness, Larzelere v.
State, 676 So. 2d 394, 402 (Fla. 1996). See also Sweet v State, 693 So. 2d 644, 645 (Fla. 4th DCA
1997) (holding that the defense may present the entire conversation where "it goes to the heart of the . .
. defense"); Eberhardt v. State, 550 So. 2d 102 (Fla. 1st DCA 1989) (holding that the rule of completeness
generally allows admission of the balance of the conversation as well as other related conversations that
in fairness are necessary for the jury to accurately perceive the whole context of what has transpired).
Alexander v. State, 627 So. 2d 35, 44 (Fla. 1st DCA 1993) is instructive:
[W]e conclude that the trial court erred in ruling that this testimony was
insufficiently related to the state's direct testimony from the witnesses to be
admitted on their cross-examination by the defendant during the state's
case. These statements by Appellant were part of his conduct at the time
of the commission of the alleged offense and thus are not merely hearsay
statements but amount to conduct in the nature of a verbal act. The state's
interrogation of these witnesses called for a description of what happened
when the shooting occurred and what Appellant had said immediately
prior to the shooting. Consequently, the court's ruling to exclude further
cross-examination as to Appellant's statements at and immediately after
the shooting prevented defense counsel from presenting the complete
picture of the circumstances of the shooting from the perspective of these
witnesses. We do not read the supreme court's opinion in Penn v. State,
574 So. 2d 1079 (Fla. 1991), to require, indeed, even to permit the
exclusion of this evidence under the circumstances shown.
Id. at 44. (emphasis added). The instant case is similar to Alexander in that the state elicited from Morse's
co-worker a description of what occurred in Morse's room. The co-worker testified that he saw Harmon
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leave as Morse sat on the bed stating that Harmon took his wallet. The exclusion of cross examination
about what else the state's witness observed during this time frame prevented Harmon's counsel from
presenting a complete picture of the circumstances from the perspective of the witness. As Alexander
explains, this exclusion is not required or even permitted.
The trial court also excluded the statement when Harmon testified during his case. The defense did
not call the co-worker to testify, but the court had already ruled his testimony irrelevant. Instead, the
defense unsuccessfully tried to bring out the hearsay through Harmon himself. Just before Harmon was
scheduled to testify, the state submitted a hastily drafted2 motion in limine to exclude testimony about any
potential penalties3 and any “self-serving” hearsay. During the proffer, Harmon testified that he had sold
drugs to Morse before and had been in Morse’s room at least three times before the altercation. He
testified that there was no burglary and that Morse struck him in the head after he refused to provide Morse
any more drugs without being paid. Thus, even if the court had been previously unaware of Harmon’s
defense -- that this was a drug deal gone awry - - the court was surely aware of it by the time Harmon
testified. The court erred in excluding the hearsay during Harmon's case because it was as relevant during
Harmon’s case as it was during the state’s case, although it clearly would have been better for Harmon if
the hearsay had come in through the co-worker, an apparently neutral observer.
It is true that the statement cuts both ways for Harmon in that Morse's owing him money could be
2
Evidently, the motion was from another case and adapted for Harmon's trial. The motion sought
the exclusion of hearsay testimony about a firearm by a Mr. Mollison. Neither a firearm nor a Mr. Mollison
was involved in this case.
3
As a Prison Releasee Reoffender, Harmon was facing life in prison.
4
viewed to provide Harmon a motive to enter uninvited. But, if the statement had been allowed, the jury
may have believed that Morse and Harmon had a relationship prior to the incident at issue, and if the jury
doubted the veracity of Morse, it might also believe that the state failed to prove beyond a reasonable
doubt that Harmon committed the crime of burglary (i.e., a non-consensual entry), a felony.4 For these
reasons, I cannot say the exclusion of Harmon's statement was harmless, and thus, I must dissent.
4
If the jury believed that much, it might also believe that Morse attacked Harmon, as the latter
testified.
5
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