DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
JEROME THURSTON,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D19-1191
[October 28, 2020]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Ernest A. Kollra, Judge; L.T. Case No. 18003824CF10A.
Carey Haughwout, Public Defender, and Stacey Kime, Assistant Public
Defender, West Palm Beach, for appellant.
Ashley Moody, Attorney General, Tallahassee, and Jeanine
Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
LEVINE, C.J.
Appellant appeals his convictions for burglary of a dwelling, aggravated
battery, and aggravated assault, raising several issues on appeal. We
affirm on all issues and write only to address two issues. Appellant claims
that the trial court erred in admitting an out-of-court statement that
identified appellant by his given name. Appellant claims that this
statement is hearsay. We disagree. We find the trial court properly
admitted the statements as they were not hearsay because they were not
both inculpatory and further not introduced for the truth of the matter
asserted. Appellant also argues the trial court erred in denying a motion
for mistrial and new trial based on statements the prosecutor made during
a recess. While the prosecutor’s statements were unprofessional and
inappropriate, they are not a basis for reversal.
On the evening of March 15, 2018, the victim was asleep on the couch
when he awoke to an intruder pulling on his pants. The intruder struck
the victim in the face with a firearm. The intruder then stood over the
victim so that they were face-to-face for at least sixty seconds. The victim
locked eyes with the intruder and got a good look at him. The intruder
wore a gray hoodie tied around his face with a black “skully” cap, black
gloves, and dark colored jeans and was about 6’4” or 6’5” and 240 to 250
pounds. The victim kicked and fought the intruder.
The victim’s father, who was in another room, heard the commotion
and peeked around the corner. The father saw the intruder. The intruder
fired shots at the victim and his father, striking the victim twice.
Earlier on the same day of the criminal offense, the victim had seen
that same intruder at a local market with a man called “Muff.” When the
intruder entered the victim’s home, he was wearing the same clothes the
victim had seen him in earlier that day. The day after the crime, the victim
went to Muff and asked him for the name of the person he had been talking
to at the market the previous day. At trial, over objections based on
Confrontation Clause and hearsay, the victim testified that Muff told him
appellant’s name, Jerome Thurston. The victim then called the detectives
and gave them appellant’s name. Muff did not testify at trial.
The victim identified appellant in a photo lineup with “a hundred
percent” certainty based on appellant’s eyes. The victim also identified
appellant in a surveillance video and in court.
After a brief recess following the defense’s cross-examination of the
victim, defense counsel advised the court that the defense’s intern heard
the prosecutor make an improper comment. The intern then testified that
she overheard the prosecutor say, in appellant’s presence, that “the
defense needs to go back to law school because literally impeaching a
witness was first year 101. Sorry that I know the law.” Appellant did not
testify whether he heard the statement. Defense counsel moved for a
mistrial. The trial court found the comment “[a] hundred percent
unprofessional,” but denied the motion for mistrial because the jury had
not heard it. The court cautioned the parties not to make statements
about opposing counsel.
The jury found appellant guilty as charged. Following the verdict,
defense counsel moved for a new trial on several grounds, including the
prosecutor’s disparagement of defense counsel. The trial court denied the
motion. This appeal follows.
Appellant argues that the trial court erred in admitting testimony, over
hearsay and Confrontation Clause objections, from the victim that Muff
identified appellant by first and last name.
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A trial court’s decision on the admissibility of evidence is reviewed for
an abuse of discretion, as limited by the rules of evidence. Helms v. State,
271 So. 3d 1030, 1033 (Fla. 4th DCA 2019). “However, whether evidence
falls under the statutory definition of hearsay or is admissible under an
exception to the hearsay rule are questions of law reviewed de novo.”
Id.
A trial court’s admission of evidence over a Confrontation Clause objection
is also reviewed de novo. McWatters v. State,
36 So. 3d 613, 637 (Fla.
2010).
The trial court properly admitted the testimony because it did not fall
within the definition of hearsay. See § 90.801(1)(c), Fla. Stat. (2018)
(“‘Hearsay’ is a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of
the matter asserted.”). The statement was not hearsay because it was not
offered to prove that Muff identified appellant by name. Rather, it was
offered to show how the victim learned the name of the person he had seen
with Muff the previous day at the market—the very same person whom the
victim identified as the assailant from later that same day. Because the
victim then passed this name on to the police, it also showed how the
police came to learn appellant’s name. A statement is not hearsay if it is
not offered to show the truth of the statement. See Jackson v. State,
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So. 3d 518, 530 (Fla. 2009) (finding witness’s testimony that he went to
the police because defendant had threatened to kill him was not hearsay
because it was not offered for the truth of the matter asserted). Clearly, in
this case, the statement was offered to show how the victim came to learn
the name of appellant, and how it came to be relayed to the police.
Appellant relies on cases that are distinguishable because they involve
circumstances where a hearsay statement actually implicated the
defendant in the charged crimes. See, e.g., Walker v. State,
77 So. 3d 890,
894 (Fla. 2d DCA 2012) (reversing where victim testified that he received
“information from the streets” about who potentially committed the
crimes); Saintilus v. State,
869 So. 2d 1280, 1282 (Fla. 4th DCA 2004)
(reversing where officer testified that “unnamed witnesses had identified
someone named Tutu as being involved in the robbery,” and “[a]nother
detective sought to establish that Tutu was in fact the defendant, based
on information he received from still other police officers”).
In this case, Muff did not make any accusatory statements about
appellant. Muff’s statement did not implicate appellant in any crime since
the victim simply asked Muff who had been with him at the market. Muff
did not identify appellant as the perpetrator of the crimes; rather, Muff
simply identified appellant as the person who had been with him earlier
that day. Appellant being with Muff at the market was not a crime. Thus,
3
no non-testifying declarant furnished evidence of appellant’s guilt. Cf.
State v. Baird,
572 So. 2d 904, 905 (Fla. 1990) (finding inadmissible as
hearsay a police officer’s testimony, during a racketeering trial, that he
had received information that the defendant “was a major gambler and
operating a major gambling operation”). Unlike in Baird, here there was
no out-of-court accusatory statement that appellant engaged in any
criminal activity.
Finally, there was no Confrontation Clause violation because the
Confrontation Clause “does not bar the use of testimonial statements for
purposes other than establishing the truth of the matter asserted.”
Crawford v. Washington,
541 U.S. 36, 59 n.9 (2004). Since the statement
by Muff to the victim was not offered for the truth of the matter asserted,
it would not be violative of the Confrontation Clause.
Appellant also contends that the trial court erred in denying his
motions for mistrial and new trial based on the prosecutor’s statements
during the recess that “the defense needs to go back to law school because
literally impeaching a witness was first year 101. Sorry that I know the
law.”
A trial court’s “denial of a motion for a mistrial, or motion for a new
trial, is reviewed for an abuse of discretion.” Pierre v. State,
88 So. 3d 354,
355 (Fla. 4th DCA 2012).
In order to grant a new trial, improper prosecutorial comments must
“deprive the defendant of a fair and impartial trial, materially contribute
to the conviction, be so harmful or fundamentally tainted as to require a
new trial, or be so inflammatory that they might have influenced the jury
to reach a more severe verdict than that it would have otherwise.”
Id. at
356 (citation omitted). A mistrial is appropriate where the error is “so
prejudicial as to vitiate the entire trial.”
Id. (citation omitted). “[T]he power
to declare a mistrial and discharge the jury should be exercised with great
care and caution and should be done only in cases of absolute necessity.”
Salvatore v. State,
366 So. 2d 745, 750 (Fla. 1978).
In the instant case, the trial court did not abuse its discretion in
denying the motions for mistrial and new trial. The comment, although
unprofessional, was not made in front of the jury. Thus, it cannot be said
that the comment deprived appellant of a fair trial, materially contributed
to his conviction, was so harmful as to require a new trial, or was so
inflammatory as to influence the jury. See Pierre,
88 So. 3d at 356.
Further, since appellant did not testify, we cannot say if the prosecutor’s
statement was heard by appellant or had any effect on the trial at all.
4
Although no reversible error occurred, comments that disparage the
integrity of counsel are improper and highly inappropriate. We remind
and caution all attorneys that they are held to a standard of conduct and
have an obligation to uphold the integrity of the justice system.
In conclusion, we find no abuse of discretion in admitting non-hearsay,
out-of-court statements and in denying the motions for mistrial and new
trial.
Affirmed.
CONNER and KLINGENSMITH, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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