Appellant, XXXXXXXXXX, the Defendant in the lower tribunal, will be referred to herein as “the Defendant” or by name. Appellee, the State of Florida, will be referred to as “the State.”
The Record on Appeal is comprised, in total, of seven (7) original volumes; one (1) supplemental volume and two (2) second supplemental volumes. References to the original three (3) document volumes will be cited using the abbreviation “R” followed by the appropriate volume and page number(s). References to the four (4) trial transcript volumes will be cited using the abbreviation “TR” followed by the appropriate volume and page number(s). References to the two (2) second supplemental volumes of the record will be cited using the abbreviation “SUPP” followed by the appropriate volume and page number(s). Exhibits will be cited using the abbreviation “Ex” followed by the appropriate exhibit number. The first supplemental record volume is not cited in this brief.
STATEMENT OF THE CASE AND OF THE FACTS
This is an appeal from a final criminal judgment and sentence. XXXXXXXXXX was charged with the murder of XXXXXXXXXX. The case proceeded to trial. The State was permitted, over defense objection, to introduce hearsay text messages which implicated XXXXXXXXXX. The issue on appeal is whether the trial court erred in allowing the State to admit the text messages based on three separate hearsay exceptions. The three hearsay exceptions relied upon by the trial court and the State were: a) business records; b) spontaneous statements and c) coconspirator statements.
B. Nature of the Case
This is a direct appeal of a final criminal judgment and sentence of the Circuit Court of the Second Judicial Circuit in and for Leon County, Florida, Case Number: 2009-CF-1709, rendered against Mr. XXXXXXXXXX, Appellant, Defendant below, on August 10, 2010. (RII: 317-327); (SUPPII: 649).
C. Course of Proceedings Below and Statement of the Facts
XXXXXXXXXX was indicted for several criminal offenses including the first degree murder of XXXXXXXXXX. (RI: 9-11). XXXXXXXXXX pleaded not guilty and was later appointed a conflict attorney. (RI: 20); (RI: 73). XXXXXXXXXX eventually filed a speedy trial demand. (RII: 262).
The State filed a Notice of Intent to Introduce Business Record. The notice indicated that the State intended to introduce business records from nine (9) different cellular telephone accounts. (RII: 276-278). The State also filed a Notice of Intent to Introduce Summary which revealed the State’s intent to introduce a summary of the cellular telephone information. (RII: 279).
The case proceeded to trial. During jury selection the State asked the prospective jurors about their familiarity with text messages as well as the process of sending and receiving text messages. (SUPPI: 561-562).
The trial began two days after jury selection. (TRI: 1). While there were three additional co-defendants who were charged with participating in the crime, XXXXXXXXXX was tried alone. During opening statements the State argued that text messages would constitute an important part of the evidence against XXXXXXXXXX. (TRI: 33; 36). The State proffered its theory of the offense during opening statement. (TRI: 33-37). The State proffered that the testimony of XXXXXXXXXX was going to tie all of its other evidence together. (TRI: 34). The State proffered that victim XXXXXXXXXX was introduced to female co-defendants XXXXXXXXXX and XXXXXXXXXX. The State proffered that the following day, XXXXXXXXXX and XXXXXXXXXX drove to XXXXXXXXXX’ house accompanied by Defendant XXXXXXXXXX and another co-defendant named XXXXXXXXXX. (TRI: 35). The State proffered that the foursome had earlier spoken with another witness about XXXXXXXXXX’ wealth. (TRI: 35). The State proffered that text messages were exchanged between XXXXXXXXXX (who was outside of XXXXXXXXXX’ home) and co-defendants inside XXXXXXXXXX’ home. The State proffered that XXXXXXXXXX burst into XXXXXXXXXX’ home and shot XXXXXXXXXX with an AK-47. (TRI: 36).
The State called victim XXXXXXXXXX’ girlfriend and a law enforcement officer who eventually responded to XXXXXXXXXX’ home where the he was found dead. (TRI: 40; 60). The State called a crime scene detective who testified about shell casings and projectiles which were recovered from the home. (TRI: 78). The State called an Associate Medical Examiner who testified that XXXXXXXXXX died from a rifle wound to his back and chest. (TRI: 146; 159).
An evidentiary issue arose regarding statements made by non-testifying co-defendant XXXXXXXXXX. (TRI: 119-123). Witness XXXXXXXXXX, who had socialized with XXXXXXXXXX the day prior to the murder, was going to be called by the State. The State wanted to bring XXXXXXXXXX’s statements made the day prior to the murder into evidence through witness XXXXXXXXXX. (TRI: 119). The state argued that the statements should come into evidence based on the coconspirator exception to the hearsay rule and also because the statements constituted a verbal act. (TRI: 119-120). The Court required the State proffer the testimony prior to putting the statements into evidence. (TRI: 123-124). XXXXXXXXXX was called for the purposes of a proffer. (TRI: 163). After hearing the proffer the Court ruled that there was not enough evidence of a conspiracy to allow XXXXXXXXXX’s statement into evidence through witness XXXXXXXXXX. (TRI: 173-175).
XXXXXXXXXX was called to testify before the jury. (TRI: 184). XXXXXXXXXX testified that she was friendly with XXXXXXXXXX and that she had introduced XXXXXXXXXX to co-defendants XXXXXXXXXX and XXXXXXXXXX. (TRI: 188). XXXXXXXXXX testified that XXXXXXXXXX and XXXXXXXXXX traveled with her and XXXXXXXXXX to XXXXXXXXXX’ house where they socialized. XXXXXXXXXX testified that, at different times, she XXXXXXXXXX and XXXXXXXXXX borrowed one of XXXXXXXXXX’ cars and left the house to pick up friends, ride around, or go to bars. (TRI: 190). XXXXXXXXXX testified that, the following day, she was socializing with the foursome at XXXXXXXXXX’s home and that the foursome left XXXXXXXXXX’s home abruptly. (TRI: 196).
The State called a DNA expert who did not locate any useable DNA in XXXXXXXXXX’ home. (TRII: 201). After the testimony of the DNA witness, before the trial broke for the evening, defense counsel informed the court that the State’s planned introduction of text messages could present an evidentiary issue. (TRII: 264-265). The Court instructed both sides to be prepared to argue the issue in the morning. (TRII: 266).
The following morning the parties argued the issue. (TRIII: 272-292). Defense counsel argued that the text message communications within the cellular telephone records constituted hearsay within hearsay. (TRII: 273). Defense counsel cited Van Zant v. State, 372 So. 2d 502 (Fla. 1st DCA 1979) in support of his argument. Defense counsel argued that the communications in the text messages were akin to email communication and that the business records exception could not be used to make the communications admissible when they would otherwise be inadmissible. (TRIII: 273-274). Defense counsel argued that, even though the text messages were kept within the course of the telephone company’s business, the information was outside of the knowledge of the persons recording the information and that therefore the messages were inadmissible. (TRIII: 275-276).
The Court inquired of defense counsel as to the difference between the text message communications and the telephone numbers contained in the phone records. (TRIII: 277). Defense counsel argued that there was no question about a number itself or the duration of a call which would be business record. The Court offered that a phone number was not a statement asserting a fact but instead constituted data. (TRIII: 279). Defense counsel conceded that the phone numbers could come into evidence under the business record exception. (TRIII: 279). Defense counsel again argued that the text messages were akin to email communications. (TRIII: 280).
The Court then asked the State how it could get around Thomas v. State, 933 So. 2d 105 (Fla 1st DCA 2008). The State later argued that the Thomas case was not directly on point and that this was an issue of first impression. (TRIII: 285).
The State argued that there was no distinction between the phone numbers recorded in the business records and the text messages. (TRIII: 282). The State conceded that there was no Florida authority which was exactly on point with respect to text messages. (TRIII: 283). The State argued that the only double hearsay issue would apply to a statement within a text message which relayed another statement. (TRIII: 284). The Court and the State agreed that there were no statements within statements contained in the text messages which the State sought to introduce. (TRIII: 286).
The State argued that the text messages which were contemporaneous with the alleged timeframe of the shooting were present sense impressions. (TRIII: 288). The State relied on the Arizona opinion in State v. Damper, 225 P. 3d 1148 (Ariz. 2010).
Defense counsel argued that, if the Court was going to admit the text messages under a separate hearsay exception, predicate should have to be laid. (TRIII: 290).
The Court stated that it was deeply troubled by the holding in Thomas v. State, 933 So. 2d 105 (Fla 1st DCA 2008). The Court held that it did not see any difference between a text message and a phone number. (TRIII: 291). The Court held that the entire body of information constituted a business record. Additionally the Court announced that it would require the State to lay hearsay exception foundations for each of the messages independently. (TRIII: 292). The Court commented that more guidance from the District Court would be helpful as to the issue.
The State then called co-defendant XXXXXXXXXX as a witness. (TRIII: 296). XXXXXXXXXX testified that, the day before the murder, she and XXXXXXXXXX met the victim Mr. XXXXXXXXXX. XXXXXXXXXX testified that XXXXXXXXXX was not present. (TRIII: 298-303). XXXXXXXXXX testified that, on the night of the murder, she was “smoking weed” and playing video games at XXXXXXXXXX’s home. (TRIII: 339). XXXXXXXXXX testified that XXXXXXXXXX arrived at the home and told the occupants to put on their shoes in order to leave. (TRIII: 340). XXXXXXXXXX had been socializing with the others at the home but XXXXXXXXXX told XXXXXXXXXX she could not leave with them. (TRIII: 341). The foursome traveled to XXXXXXXXXX’ home in an automobile which XXXXXXXXXX drove. (TRIII: 342). XXXXXXXXXX testified that XXXXXXXXXX let her and XXXXXXXXXX into his home. XXXXXXXXXX and XXXXXXXXXX, according to XXXXXXXXXX, had driven away. (TRIII: 343). XXXXXXXXXX testified that she was in the living room of the home and XXXXXXXXXX placed a phone on a couch where she (XXXXXXXXXX) could see it. (TRIII: 347).
XXXXXXXXXX testified that XXXXXXXXXX entered the house with a rifle. (TRIII: 348). XXXXXXXXXX testified that she screamed. (TRIII: 348). XXXXXXXXXX testified that XXXXXXXXXX ran into a bedroom. (TRIII: 349). XXXXXXXXXX testified that XXXXXXXXXX fired the rifle through an interior door of the home. (TRIII: 350).
XXXXXXXXXX testified that the phone she had seen in XXXXXXXXXX’ home belonged to XXXXXXXXXX. (TRIII: 358). XXXXXXXXXX testified that she saw a text message on that phone which had come from XXXXXXXXXX’s phone. XXXXXXXXXX testified she believed XXXXXXXXXX’s phone to be in XXXXXXXXXX’s possession. (TRIII: 358-359). Defense counsel objected to the entry of the text message into evidence. The Court overruled defense counsel’s objection. (TRIII: 360). XXXXXXXXXX was refreshed and allowed to relay the contents of two text messages. (TRIII: 361). XXXXXXXXXX testified that the initial text message read: “Have XXXXXXXXXX take him to another room.” XXXXXXXXXX testified that the second text message said: “He’s talking to her now and it might take a little time.” (TRIII: 361). XXXXXXXXXX testified that, after the shooting, XXXXXXXXXX had said the foursome was supposed to rob XXXXXXXXXX. XXXXXXXXXX testified that she did not know robbery was the plan prior to entering XXXXXXXXXX’ home. (TRIII: 365).
Following XXXXXXXXXX’s direct examination the Court explained that the first text message was not hearsay because it was not offered to prove the truth of the matter asserted. The Court further found that both of the text messages fell within exceptions to the hearsay rule. (TRIII: 367). The Court alternatively found that the text messages were admissible as certified business records. (TRIII: 367).
Following XXXXXXXXXX’s testimony the Court expressed concern about the introduction of the remaining text messages. (TRIII: 380-381). The Court asked the State how the remaining text messages could come into evidence if they were not being entered through XXXXXXXXXX’s testimony. (TRIII: 381). Defense counsel argued that XXXXXXXXXX had testified to exchanging a single text message with an unknown person. (TIII: 386). Defense counsel argued that none of the telephones at issue belonged to XXXXXXXXXX and that XXXXXXXXXX had testified XXXXXXXXXX had his own telephone. (TRIII: 386). Defense counsel argued that written statements could not be considered excited utterances or spontaneous statements. (TRIII: 387). The Court indicated that it agreed with defense counsel as to excited utterances but not necessarily as to present sense impressions. (TRIII: 388). The State argued that the statements were present sense impressions, statements by coconspirators and not actually hearsay because they were business records. (TRIII: 396). Defense counsel argued that there was absolutely no evidence of a conspiracy after the testimony of Ms. XXXXXXXXXX. (TRIII: 396).
The Court found that the text messages were present sense impressions. The Court found that the records were admissible as business records. (TRIII: 397). The court further found that circumstantial evidence established a conspiracy and the text messages were admissible as coconspirator statements. (TRIII: 397).
The Court ruled that the State’s law enforcement witness could not read the text messages to the jury but that the messages could be introduced as an exhibit. (TRIII: 401-402). The State also posted the text messages on a board and created a summary of those messages. (TRIII: 402). The Court limited the text messages to be introduced to those which the State represented had occurred contemporaneous with the shooting. (TRIII: 406). The Court noted that defense counsel had preserved his objections to the text messages being hearsay. (TRIII: 411-412).
The State then admitted Exhibits 27A-D into evidence. (TRIII: 412). Exhibit 27 is a composite list print-out of twelve (12) text messages. (Ex: 27). The messages appear to constitute conversation from inside XXXXXXXXXX’ home to someone outside of XXXXXXXXXX’ home. (Ex: 27). The messages read as follows:
Zanda\n MAD DOG
His wife here\n MAD DOG
He got a gun like a 22 or some hand gun\n MAD DOG
Is it on him?\nFree muh sis p body
He put it in the room some where\n MAD DOG
Ok well have XXXXXXXXXX to take him n anuther room\n Free muh sis p body
He talking to her now and SHIT. Mite take a lil time\n MAD DOG
Ok\nFree muh sis p body
Is da front door open,.? If so get him n da front and we commin\nFree muh sis p body
Ok\nFree muh sis p body
Its not open. Wait a min\n MAD DOG
Its open\n MAD DOG
The State then called a criminal intelligence analyst from the Leon County Sheriffs Office. (TRIII: 413). The State called several other law enforcement officers and then rested. (TRIV: 484; 491; 496; 501).
Defense counsel moved for a judgment of acquittal as to the robbery charge. (TRIV: 505). The State admitted that there was no direct evidence that anything was taken from XXXXXXXXXX’ home. (TRIV: 509). The Court granted the motion for judgment of acquittal as to robbery and amended the charge to attempted robbery. (TRIV: 510). The defense rested. (TRIV: 514).
The State made its initial closing argument. (TRIV: 548). The State repeatedly argued the jury should consider the text messages as evidence of XXXXXXXXXX’s guilt. (TRIV: 552; 556; 559; 564). Defense counsel gave his closing argument. (TRIV: 568-596). The State made its rebuttal closing argument and again argued that the text messages were important evidence indicating XXXXXXXXXX’s guilt. (TRIV: 599; 603).
The jury returned guilty verdicts as to all charges; murder in the first degree, attempted robbery and burglary of a dwelling with person assaulted with a firearm. (TRIV: 616). At a separate proceeding XXXXXXXXXX was sentenced to life in prison. (SUPPII: 649). A timely Notice of Appeal was filed. (RIII: 415). This appeal follows.
SUMMARY OF THE ARGUMENT
Ground I – The trial court’s three-pronged justification notwithstanding, the text messages entered into evidence at XXXXXXXXXX’s trial were inadmissible hearsay. These text messages constituted unfounded, nebulous evidence upon which the State relied in order to obtain a conviction. The trial court’s ruling resulted in unsworn, out-of-court statements being introduced against XXXXXXXXXX in a context where he could not cross-examine the speaker. The admission of these statements was contrary to the Florida Evidence Code and warrants reversal.
THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN RULING THE DISPUTED TEXT MESSAGES WERE ADMISSIBLE. XXXXXXXXXX WAS HARMED WHEN THE INADMISSIBLE TEXT MESSAGES WERE ENTERED INTO EVIDENCE AT HIS TRIAL.
standard of review
An appellate court reviews a trial court’s decision to admit evidence for abuse of discretion. Ray v. State, 755 So. 2d 604, 610 (Fla. 2000) (citing Alston v. State, 723 So. 2d 148 (Fla. 1998)). However, the trial court’s discretion is limited and circumscribed by the rules of evidence. Johnston v. State, 863 So. 2d 271, 278 (Fla. 2003) (citing Nardone v. State, 798 So. 2d 870, 874 (Fla. 4th DCA 2001)). A trial court’s erroneous interpretation of the rules and case law is subject to de novo review. Pantoja v. State, ___ So. 3d ___, 36 Fla. L. Weekly S91 (Fla. 3/3/2011).
general hearsay rule
Hearsay is defined as 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. Fla. Stat. § 90.801(1)(c). Except as provided in Florida Statutes, hearsay is inadmissible. Fla. Stat. § 90.802.
Hearsay testimony is inadmissible for many reasons. Initially, the declarant is not testifying under oath. Secondly, the declarant is not in court for the jury to observe his or her demeanor. Thirdly, and most importantly, the declarant is not subject to cross-examination on order to test the truth of the statement. Banks v. State, 790 So. 2d 1094, 1097 (Fla. 2001).
business records exception
One of the exceptions to the hearsay rule upon which the trial court relied in admitting the text messages was the business record exception. Florida Statute § 90.803(6) allows for the admissibility of business records when such records are created by an individual who is an agent of the business.
XXXXXXXXXX submits that the text messages at the trial below were not properly excepted from the hearsay rule because the individual supplying the information (the texter) was not acting within the course of the business (the cellular service provider).
The contents of the text messages were not admissible as a business record under Fla. Stat. § 90.803(6) because the text messages were not placed within the provider’s records by an agent of the business.Brooks v. State, 918 So. 2d 181 (Fla. 2005); Reichenberg v. Davis, 846 So. 2d 1233, 1234 (Fla. 5th DCA 2003); Neeley v. State, 883 So. 2d 861 (Fla. 1st DCA 2004); Quinn v. State, 662 So. 2d 947 (Fla. 5th DCA 1995).
Where the initial supplier of the communication is not acting within the course of the business, the information in the record cannot qualify for the business records exception. Van Zant v. State, 372 So. 2d 502, 503 (Fla. 1st DCA 1979); Thomas v. State, 993 So. 2d 105 (Fla 1st DCA 2008).
The first justification behind the business records exception is that the information is relied upon by a business in the conduct of its daily affairs. The second justification behind the business records exception is the notion that the records are customarily checked for correctness during the course of regular business activities. Neither of these two justifications exist when a business memorializes a statement of an individual who is not acting within the course of the business and where the “business record” sought to be introduced is not checked for correctness or otherwise used by a business in the conduct of its daily affairs.
Hearsay statements of persons operating outside the course of the business’ operation can not be carried in front of a jury using the business record exception merely because a business entity happened to record those statements. This has been established by the Florida Supreme Court as to Department of Revenue records which contained hearsay statements. Brooks v. State, 918 So. 2d 181, 193 (Fla. 2005)(“…the second prong of the [§90.803(6)(a)] predicate requires the information to have been supplied by an individual who does have personal knowledge of the information and who was acting in the course of a regularly conducted business activity.)(emphasis supplied).
The District Court of Appeal, Fifth District has reached the same conclusion as to Department of Children and Families records which contained hearsay statements. Reichenberg v. Davis, 846 So. 2d 1233, 1234 (Fla. 5th DCA 2003)(“…witness’s statements, even though contained within the business records, do not fall within the exception, because they were not based upon the personal knowledge of an agent of the ‘business.’”).
This court has settled on the same holding when faced with hospital records which contained hearsay statements. In Neeley v. State, 883 So. 2d 861 (Fla. 1st DCA 2004), this court held that the statements in a disputed hospital record were inadmissible where the speaker was under no business duty to record the statement.
The District Court of Appeal, Fourth District has recently reached an identical conclusion. M.S. v. Department of Children and Families, 6 So. 3d 102 (Fla. 4th DCA 2009)(Records of Maryland Child Protective Services activity were inadmissible as business records since the records contained mostly hearsay statements from unknown persons.).
At XXXXXXXXXX’s trial, the State never established who actually sent the text messages which were introduced. It was undisputed that the individual who sent the texts was not an agent of the cellular provider. (TRII: 274; 275-276; 358-359; 381; 388). Witness XXXXXXXXXX testified, on direct examination, to sending one text message. (TRIII: 361). XXXXXXXXXX testified on cross as to receiving one text and sending one text. (TRIII: 373). The remainder of the text messages were apparently created by other individuals who may (or may not) have been related to the account holder associated with the phone line. (TRII: 274; 358-359; 381; 388). Following XXXXXXXXXX’s testimony, the trial court recognized there was scant evidence that XXXXXXXXXX had sent any of the texts: “Somebody outside used the phone is all we know at this point.” (TRIII: 381-352). The cellular telephone accounts at issue were apparently held in the name of a non-witness. (TRIII: 389). The State later argued that non-testifying codefendant XXXXXXXXXX had sent the other text messages from within the house. (TRIII: 393-394).
Because it was not established who created the text messages, the messages were inadmissible as business records. The indications in the record on appeal point to the messages being made by private individuals under no business duty to record the information. Therefore the messages were not properly introduced as business records pursuant to Fla. Stat. § 90.803(6).
The State may argue that the text messages were in fact recorded by an individual acting within the course of the cellular provider’s business; or that the text messages were recorded by the cellular provider and should therefore be entitled to business record deference. In that circumstance it should be noted that the actual text messages do not appear in the telephone records which were entered into evidence at XXXXXXXXXX’s trial. (Ex. Comp 27).
The text messages in XXXXXXXXXX’s trial were not properly admitted as spontaneous statements. Initially, there is a lack of record indication regarding the time relationship between the events described and the text messages themselves. Even if the temporal relationship were indicated, the messages of an unidentified speaker should have been excluded because they constituted nebulous evidence which lacked trustworthiness and could not be effectively challenged.
Florida Statute § 90.803(1) allows for the admissibility of a statement which describes or explains an event or condition made while the declarant was perceiving an event or immediately thereafter. In order for a statement to be admitted into evidence as a spontaneous statement the trial record must establish that the statement was made contemporaneous to the event or immediately thereafter. Hutchinson v. State, 882 So. 2d 943, 951-952 (Fla. 2004). The statute holds that the statement should be excluded when it lacks trustworthiness. Fla. Stat. § 90.803(1).
Where the record does not reveal the temporal relationship between the event and the statements, such statements should be excluded from evidence. This is so because the court is unable to find that the declarant did not first engage in reflective thought before making the statement. Hutchenson, 882 So. 2d at 951; Sunn v. Colonial Penn Ins. Co., 556 So. 2d 1156 (Fla. 3d DCA 1990).
The State bore the burden of establishing the appropriate timeframe in order to introduce statements as spontaneous statements under Fla. Stat. 90.803. State v. Jano, 524 So. 2d 660 (Fla. 1988). Where the record lacks evidence of a contemporaneous relationship between statement and event; statement should have been excluded. Cotton v. State, 763 So. 2d 437 (Fla. 4th DCA 2000).
Statements made by unidentified speakers generally indicate a lack of trustworthiness and should be closely scrutinized as such statements raise acute questions of reliability. Statements of unidentified speakers generally constitute nebulous evidence which can not be effectively challenged. Wal-Mart Stores, Inc. v. Jenkins, 739 So. 2d 171 (Fla. 5th DCA 1999).
At XXXXXXXXXX’s trial, the State failed to identify the texter who created the messages which were introduced. Witness XXXXXXXXXX testified, on direct examination, to sending one text message. (TRIII: 361). XXXXXXXXXX testified on cross as to receiving one text and sending one text. (TRIII: 373). The State also failed to identify the temporal relationship between the events and the sending/receiving of the text messages. (TRIII: 358-366). The State later argued that non-testifying codefendant XXXXXXXXXX had sent the other text messages from within the house. (TRIII: 393-394). XXXXXXXXXX did not testify and therefore was unable to clarify the timing relationship between the events and the text messages.
Judge Walker discussed the spontaneous statement exception as an option for allowing the text messages to come into evidence. (TRIII: 290-291). He agreed with defense counsel that the State would be required to lay an appropriate predicate before the statements were admitted. (TRIII: 291). Subsequently, the statements were admitted without the State ever asking witness XXXXXXXXXX about the temporal relationship between the events and the text messages. The statements were also admitted without witness XXXXXXXXXX testifying whatsoever. Judge Walker appears to have made his initial ruling while operating under the belief that XXXXXXXXXX or XXXXXXXXXX would testify for the State in order to lay the predicate. Judge Walker later seems to have been surprised when the State indicated XXXXXXXXXX’s testimony was finished and the State still wanted to admit the statements. (TRIII: 381).
The only temporal relationship in the record is an argument by the State that the text messages were sent within a span of one hour and ten minutes. (TRIII: 385). This court has previously held that twenty minutes allowed sufficient time for reflective thought and disallowed “spontaneous” statements due to the lack of the required temporal relationship. Merritt v. Crosby, 893 So. 2d 598 (Fla. 1st DCA 2004).
There is insufficient record support as to who sent the test messages or as to the messages’ temporal relationship with the events described. Because these two necessary pieces of information are lacking from the record, the trial court committed reversible error in ruling the text messages constituted spontaneous statements and allowed the State to admit them into evidence.
Florida Statute § 90.803(18)(e) creates an exception to the general hearsay prohibition for a statement of a person who was a coconspirator of a defendant during the course and in the furtherance of a conspiracy. In order for a statement to be admissible under the coconspirator exception to the hearsay rule it must be established that both the person making the statement and the defendant were members of a conspiracy.Nelson v. State, 490 So. 2d 32, 35 (Fla. 1986). Existence of the conspiracy and the defendant’s participation in it must be established by evidence other than the statements themselves. Foster v. State, 679 So. 2d 747, 753 (Fla. 1996); Hudson v. State, 276 So. 2d 89, 90-91 (Fla. 4th DCA 1973).
For the purposes of coconspirator admission, the State first must establish that there existed an express or implied agreement to accomplish, by concerted action, some criminal or unlawful act. U.S. v. Gil, 604 F.2d 546, 549 (7th Cir. 1979). The trial judge is required to find that the offering party has proved the existence of a conspiracy by a preponderance of the evidence. Romani v. State, 542 So. 2d 984, 985 n.3 (Fla. 1989).
The rule recognizes the questionable reliability of some testimony regarding out-of-court statements of coconspirators and seeks to ensure that a defendant is convicted only on credible evidence. Romani v. State, 542 So. 2d 984, 986 (Fla. 1989). Mere presence at the scene of the offense is insufficient to establish a conspiracy as an offense or for purposes of Fla. Stat. §90.803(18)(e). Saint Louis v. State, 561 So. 2d 628 (Fla. 2d DCA 1990); Nelson v. State, 490 So. 2d 32 (Fla. 1986).
During her direct examination, witness XXXXXXXXXX made it clear that she had no idea that there was supposed to be a robbery prior to going into XXXXXXXXXX’ house. (TRIII: 365; 369). In fact XXXXXXXXXX specifically testified that she thought the group had traveled to XXXXXXXXXX’ house for an innocuous reason. (TRIII: 365-366). Judge Walker later described as “unequivocal” XXXXXXXXXX’s testimony that she had no knowledge of an impending robbery. (TRIII: 392-393).
Judge Walker pointed-out that in the coconspirator authority relied upon by the State, there existed unequivocal testimony that a criminal conspiracy was underfoot. (TRIII: 395). The trial court then relied on the substance of the text messages to determine that a conspiracy existed. (TRIII: 395).
Later in the trial the State admitted that there was no evidence that a robbery had taken place. The trial court granted defense counsel’s motion for judgment of acquittal as to the robbery charge. (TRIV: 505-510).
The evidence of a criminal conspiracy was insufficient as to XXXXXXXXXX, XXXXXXXXXX and/or XXXXXXXXXX. The State argued that Ms. XXXXXXXXXX created many of the text messages. (TRIII: 393-394). Yet XXXXXXXXXX was never called as a witness and her knowledge of a criminal conspiracy was never established. Because there was insufficient evidence of a conspiracy and because the trial court relied upon the statements themselves in finding the existence of a conspiracy, reversible error was committed. XXXXXXXXXX was subsequently harmed when the State relied on the improperly admitted text messages in opening statement and closing argument (initial and rebuttal).
WHEREFORE, the Appellant/Defendant respectfully requests this Honorable Court reverse his judgment and sentence and remand this cause to the Circuit Court with instructions that he be tried anew.
/s/ Luke Newman
Luke Newman, P.A.
908 Thomasville Road
Tallahassee, Florida 32303
Fla. Bar No. 0859281
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing has been furnished to the Office of the Attorney General, Criminal Appeals Division via email at firstname.lastname@example.org on this fifth (5th) day of April, 2011.
/s/ Luke Newman
Fla. Bar No.: 0859281
CERTIFICATE OF COMPLIANCE REGARDING FONT SIZE
Counsel for the Appellant hereby certifies, pursuant to Florida Rule of Appellate Procedure 9.210(a)(2), that the type used in this brief is Times New Roman 14 point proportionally spaced font.
/s/ Luke Newman _____________________________
Fla. Bar No.: 0859281
 The foursome consists of Defendant/Appellant XXXXXXXXXX; non-testifying co-defendants XXXXXXXXXX and XXXXXXXXXX; and testifying co-defendant XXXXXXXXXX.
 The Hutchinson opinion has been abrogated on other grounds by Deparvine v. State, 995 So. 2d 351 (Fla. 2008).