Helms v. State

271 So.3d 1030

Jeffrey A. HELMS, Appellant,

v.STATE of Florida, Appellee.

No. 4D17-3811

District Court of Appeal of Florida, Fourth District.

[May 15, 2019]

Carey Haughwout, Public Defender, and Paul Edward Petillo, Assistant Public Defender, West Palm Beach, for appellant.

Ashley B. Moody, Attorney General, Tallahassee, and Jessenia J. Concepcion, Assistant Attorney General, West Palm Beach, for appellee.

Warner, J.

Jeffrey Helms appeals his conviction for robbery with a firearm, for which he was sentenced to life in prison as a prison releasee reoffender. He argues that the trial court erred in allowing the investigating detective to testify that appellant's girlfriend advised the detective of his cell phone number, as this was improper hearsay. He also argues that the trial court erred in sentencing him as a PRR, as he was neither committed to nor released from the Department of Corrections within three years of the robbery. We agree on both issues and reverse. We affirm as to the remaining issues without further discussion.

In February 2016, a man wearing a red button-down shirt, khaki pants, and sunglasses entered a Walgreens in Jupiter at about 8 p.m., and he robbed the store's cashier at gunpoint. The store's surveillance video, admitted at trial, shows the white male wearing a black baseball cap with a drawing of a white face on it. He approaches the female cashier while he is speaking on a cell phone, and she retrieves cigarettes from behind the store's counter. He fumbles in his pocket, and then the cashier hands him money out of the cash register's drawer. The store's outdoor surveillance footage shows the suspect walking towards the store from outside of the parking lot, and about two minutes later, running out of the store towards the same area.

About three weeks later, the cashier participated in a photo lineup with the investigating detective, and she identified appellant as the robber. The lineup contained six pictures of white males with earrings, but only appellant was wearing a red, collared shirt like the robber. The cashier identified appellant as the perpetrator in the robbery.

Appellant was charged with robbery with a firearm. Prior to trial, he moved to suppress the cashier's identification. Although the trial court found that the lineup was unnecessarily suggestive, it ruled that there was no risk of irreparable misidentification because the cashier was certain of her identification.

In 2017, the case proceeded to jury trial. The cashier testified and explained the incident. She considered herself to have a photographic memory and remembered faces. She described the perpetrator as wearing a red shirt and sunglasses. She stated that her employer instructed employees to concentrate on faces of perpetrators. The cashier also testified regarding the lineup. She identified appellant's picture in the lineup based on her memory, and she did not rely solely on the red shirt to identify him. She testified that he possessed a firearm during the robbery.

During cross-examination, contrary to her earlier testimony, the cashier testified that she had training on how to handle robberies, and the training video instructed her to avoid eye contact with the robber. She saw appellant's eyes only one time when he quickly was turning his head. After the incident, she told the detective that appellant's eyes were blue, but at trial, she said they were bluish green. Also, in her deposition, she testified that she couldn't notice his hair, but right after the robbery, she told the detective that his hair looked dirty blonde. At trial, she stated it was brownish black. Appellant was the only man wearing a red shirt in the photo array, and that fact stuck out in her mind and was "a big deciding factor for" her. In viewing the photo lineup, she looked at the suspects' faces, necks, and shirts to decide, but their faces looked the same. After the lineup, she asked the detective if she got the right guy, and the detective responded in the affirmative.

Appellant's girlfriend also testified at trial. Appellant occasionally stayed overnight at her house in Port St. Lucie. Sometime after the robbery, the girlfriend met with the investigating detective, but she did not remember giving either her or appellant's cell phone number to the detective. She did not remember appellant's phone number.

The investigating detective then testified that she met with appellant's girlfriend a few weeks after the robbery. Regarding the issue on appeal, the detective testified that the girlfriend provided her with appellant's phone number. Based on that information, the detective obtained a search warrant for the phone records that were linked to that number. Defense counsel unsuccessfully objected based on hearsay. At sidebar, counsel argued that the State did not lay the proper foundation to connect the phone number to appellant. He also argued that the girlfriend testified that she did not remember appellant's number, but she did not testify that she gave it to the police. Thus, defense counsel contended that there was no evidence indicating that it was appellant's phone number, and the records linked to the number were not authenticated because the subscriber's name was the name of appellant's mother.

The court found that although appellant's girlfriend either did not remember appellant's number or denied giving it to the detective, pursuant to section 90.614, Florida Statutes (2017), the detective could testify about the statement that was made by the girlfriend to the detective. If the statement was admissible and the phone number was linked to appellant, then the phone records also were admissible. The court admitted the phone records for that number, which included the phone's cell site location information.

Later in trial, before the State's cell phone expert testified about the phone records, defense counsel renewed his objections. He argued that the detective's testimony, i.e., that the girlfriend told the detective appellant's number, was a prior inconsistent statement; however, a prior inconsistent statement admitted under section 90.614 could not be used as substantive evidence if it was not a sworn statement that was given during a prior proceeding. The court overruled the objection, stating that the phone records were self-authenticating.

The cell phone expert then testified that based on the admitted phone records, appellant's cell phone registered off a tower in Jupiter around 7:48 p.m. on the night of the robbery. This was around the time the surveillance video at Walgreen's captured the incident. The expert explained that the cell phone would be in the geographical area of the cell towers sector, which in this case included the location of the Walgreen's. Calls from the phone then were picked up by towers south of Jupiter, showing the phone likely was travelling south, but it eventually moved north, being picked up by a tower in Port St. Lucie. The phone remained in that area until the following afternoon.

Finally, a man who was a neighbor of appellant's family for a few years testified that he saw surveillance photographs from the 2016 robbery. He saw appellant in 2014, and he was certain that appellant was the robber.

The State rested, and the defense unsuccessfully moved for judgment of acquittal. The defense did not present any witnesses. Following closing arguments, the jury asked twice to review the surveillance video of the interaction between the robber and the cashier. It also reviewed the cashier's testimony. After deliberations, the jury found appellant guilty of robbery, concluding that he actually possessed a firearm. The trial court sentenced appellant to life in prison as a PRR. This appeal followed.

Appellant argues that the trial court erred by allowing the investigating detective to testify that the girlfriend gave the detective appellant's phone number, as this was improper hearsay. He asserts that the error was harmful because it allowed the State to introduce evidence of appellant's purported cell phone records. We agree.

We review a trial court's decision on the admissibility of evidence for an abuse of discretion, as limited by the rules of evidence. Browne v. State , 132 So. 3d 312, 316 (Fla. 4th DCA 2014). 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.

The trial court relied on section 90.614, Florida Statutes (2017), in admitting into evidence the girlfriend's statement to the detective regarding appellant's phone number. The court allowed the State to use the statement to admit the phone records that were linked to that number; thus, the State used the statement as substantive evidence. The court erred because the statement could be used, if the State laid the proper foundation, for only impeachment purposes.

Section 90.614(2), Florida Statutes, provides in part:

Extrinsic evidence of a prior inconsistent statement by a witness is inadmissible unless the witness is first afforded an opportunity to explain or deny the prior statement and the opposing party is afforded an opportunity to interrogate the witness on it, or the interests of justice otherwise require. If a witness denies making or does not distinctly admit making the prior inconsistent statement, extrinsic evidence of such statement is admissible.

(emphasis added). If a prior inconsistent statement was made under oath, it may be admissible as substantive evidence. See § 90.801(2)(a), Fla. Stat. (2017) (providing that a statement is not hearsay if: the declarant testifies at trial; the declarant is subject to cross-examination regarding the statement; and the statement is, "[i]nconsistent with the declarant's testimony and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding or in a deposition"); see Castillo v. State , 217 So. 3d 1110, 1114-15 (Fla. 3d DCA 2017) (finding that...