Third District Court of Appeal
State of Florida
Opinion filed February 24, 2021.
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No. 3D19-2179
Lower Tribunal No. 18-201-A-K
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The State of Florida,
Appellant,
vs.
Hernan Francisco Marin,
Appellee.
An Appeal from the Circuit Court for Monroe County, Mark H. Jones,
Judge.
Ashley Moody, Attorney General, and Brian H. Zack, Assistant
Attorney General, for appellant.
The Upson Law Group, P.L., and Keith W. Upson (Naples), for
appellee.
Before EMAS, C.J., and GORDO and BOKOR, JJ.
ON MOTION FOR REHEARING
GORDO, J.
We deny Appellee’s Motion for Rehearing, withdraw our prior opinion
filed December 9, 2020, and substitute this opinion in its stead.
The State appeals the trial court’s order granting Hernan Marin’s
motion to exclude the audio-video recording of a controlled call with the
victim in the underlying case. We have jurisdiction. See Fla. R. App. P.
9.140(c)(1)(B); see also State v. Palmore,
495 So. 2d 1170, 1170–71 (Fla.
1986) (stating that “a pretrial ruling exclud[ing] a tape recording based on the
intelligibility and audibility of the tape” is reviewable under Rule
9.140(c)(1)(B)); State v. Kleinfeld,
587 So. 2d 592, 593 (Fla. 4th DCA 1991)
(“Our supreme court has squarely upheld the state’s right to non-final review
of orders suppressing admissions.” (citations omitted)). 1 The State argues
the trial court abused its discretion in excluding the recording in its entirety
because it contains audible portions discussing the crimes charged. 2 We
agree, reverse and remand for further proceedings.
1
The State asks this Court, in the alternative, to treat its appeal as a petition
for writ of certiorari. Although we recognize that other courts have done so,
see, e.g., State v. Morgan,
171 So. 3d 210, 212–13 (Fla. 2d DCA 2015),
here, we exercise jurisdiction under Florida Rule of Appellate Procedure
9.140(c)(1)(B).
2
We do not address the relevance of the audible portions of the audio-video
recording. As the trial court’s order makes clear, the only issue addressed
at the hearing was the audibility of the recording; the trial court has not yet
considered the recording’s relevance. Thus, we do not comment on the
2
FACTUAL AND PROCEDURAL BACKGROUND
The State charged Marin with one count of aggravated assault with a
deadly weapon without intent to kill and one count of felony battery or
domestic battery by strangulation. On February 27, 2018, Lieutenant David
Smith, who was investigating the alleged crimes, and Detective Wendy
Negron met with the victim to conduct a controlled call with Marin. The
controlled call was audio and video recorded on Lieutenant Smith’s body-
worn camera.
On October 27, 2019, Marin filed a motion seeking to exclude the
recording of the controlled call on several grounds, including that it was
mostly inaudible. The trial court held an evidentiary hearing regarding the
call’s admissibility, where it addressed only “whether the tape was sufficiently
audible to be admitted into evidence at all.” At the hearing, the trial court
heard the recording but declined to admit a copy of the call transcript in
evidence because it wanted to decide the audibility of the tape “without the
influence of a written transcript.” The entire hearing, including the playing of
the controlled call recording, was transcribed by a court reporter. 3
relevance of the recording, which is to be litigated upon remand for further
proceedings.
3
On appeal, the State filed an email correspondence from the court reporter
in which she states that she “transcribed the audio of the controlled call that
3
During Lieutenant Smith’s testimony, the State played the recording.
He was able to hear Marin’s statements pertaining to the crimes in question
and explain the contents of the conversation between Marin and the victim.
During cross-examination, Lieutenant Smith acknowledged that some of
Marin’s responses were inaudible.
On the record, the trial court observed that the recording “may be
audible” but stated it was struggling to determine whether the recording
contained relevant statements. 4 Later, in its written order, the trial court
reached the opposite conclusion, finding the recording was largely
“inaudible, unintelligible, and ultimately meaningless.” The trial court granted
the motion and excluded the recording in its entirety.
STANDARD OF REVIEW
“A trial court has wide discretion concerning the admissibility of
evidence, and a ruling on admissibility will not be disturbed unless there has
been an abuse of discretion.” Irving v. State,
627 So. 2d 92, 94 (Fla. 3d DCA
1993) (citing Jent v. State,
408 So. 2d 1024, 1029 (Fla. 1981)). The trial
court’s determination that the tape is audible, however, is a factual
was played in court based on what [she] heard in court, not based on any
transcript.”
4
The trial court stated, “It may be audible . . . But, as I was listening to this,
it was really hard for me to link it up to the crimes alleged herein.”
4
determination subject to the competent, substantial evidence standard.
McCoy v. State,
853 So. 2d 396, 403–04 (Fla. 2003).
LEGAL ANALYSIS
“The general rule regarding admissibility of partially inaudible tape
recordings is that such recordings are admissible unless the inaudible and
unintelligible portions are so substantial as to deprive the remainder of
relevance.” Commerford v. State,
728 So. 2d 796, 798 (Fla. 4th DCA 1999)
(citing Odom v. State,
403 So. 2d 936, 940 (Fla. 1981)). “Partial inaudibility
or unintelligibility is not a ground for excluding a recording if the audible parts
are relevant, authenticated, and otherwise properly admissible.”
Id. (citing
Wilson v. State,
680 So. 2d 592, 594 (Fla. 3d DCA 1996)).
The State’s evidence at the hearing demonstrated that the recording is
largely audible. First, Lieutenant Smith testified regarding what he heard in
open court. Second, the transcript of the proceedings contains a
transcription of the majority of the recorded call, based on what was played
in court. This demonstrates that the recording is, at minimum, sufficiently
audible to be mostly transcribed just from hearing it played in a court
proceeding. The recording, therefore, is not so “inaudible and [un]intelligible
. . . as to deprive the audible portions of relevance.” Martinez v. State,
761
So. 2d 1074, 1083 (Fla. 2000) (citations omitted). Thus, the trial court’s
5
finding that the recording was inaudible was not supported by competent,
substantial evidence, and it was an abuse of discretion to exclude the
recording in its entirety on that basis.
Reversed and remanded.
6
