                                       IN THE DISTRICT COURT OF APPEAL
                                       FIRST DISTRICT, STATE OF FLORIDA

RICHARD SUMMERALL,                     NOT FINAL UNTIL TIME EXPIRES TO
                                       FILE MOTION FOR REHEARING AND
      Appellant,                       DISPOSITION THEREOF IF FILED

v.                                     CASE NO. 1D14-1256

STATE OF FLORIDA,

      Appellee.

_____________________________/

Opinion filed July 14, 2015.

An appeal from the Circuit Court for Suwannee County.
David W. Fina, Judge.

Nancy A. Daniels, Public Defender, and Gail E. Anderson, Assistant Public
Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Lauren Brudnicki, Assistant Attorney
General, Tallahassee, for Appellee.




SWANSON, J.

      This is a direct criminal appeal from a judgment and sentence for burglary

with assault while armed and resisting an officer without violence. Appellant has

argued two points for reversal. We find merit in appellant’s argument under Point

II and reverse and remand for a new trial. As a result, we need not address Point I.
      Under Point II, appellant challenges the trial court’s decision to permit the

victim, Stacay Hawkins, to testify regarding the content of telephone calls she

participated in between herself and appellant’s mother. Just prior to the night of

the incident leading to appellant’s charges, Hawkins had ended a six-month

relationship with appellant. This left appellant infuriated. On the evening of

August 19, 2013, appellant arrived at Hawkins’ home and knocked on her front

door. Hawkins asked who was there, and when she learned it was appellant, she

asked him to wait while she got dressed. Instead, she called the police and ushered

her children into the back room. When she turned around, however, she saw her

seventeen-year-old son, Stacie, walking into the house through the front door with

appellant in tow. Appellant angrily demanded to know where the “other man” was

hiding in the house, and proceeded to search for him. When appellant’s search

proved fruitless, Hawkins demanded he leave and walked him to the door. As

Hawkins was about to close the door, her cell phone rang and appellant slapped it

out of her hand. Hawkins tried to close the door, but appellant prevented her from

doing so by placing his foot in the doorway. He told Hawkins he had something

for her. When he reached into his pocket, Hawkins saw the “silver part” of a gun.

She shouted that appellant had a gun and, with the assistance of her son, managed

to shut the door. Appellant was still standing on the front porch when the police

arrived.

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      During her testimony at appellant’s trial, Hawkins revealed that prior to

appellant’s arrival at her home, she received a telephone call from his mother,

Mary Summerall. When the prosecutor asked what Ms. Summerall said to her,

defense counsel objected on the basis of hearsay. The prosecutor responded that

Ms. Summerall’s statement was not being offered for the truth of the matter

asserted but for “the effect on the listener,” which she claimed was a “material

element.” The trial court overruled the objection and Hawkins was permitted to

testify that Ms. Summerall told her to call the police because appellant was in the

yard with a gun and had told her he was going to Hawkins’ house to put four

bullets in her head. Hawkins further testified that Ms. Summerall called a second

time, and, again, over defense objection, Hawkins was allowed to testify to what

she said. According to Hawkins, Ms. Summerall told her to call the police because

appellant was going to shoot her and was on his way over to her house.

      We agree with appellant’s argument that the testimony concerning Mary

Summerall’s calls constituted hearsay as defined in section 90.801(1)(c), Florida

Statutes. In Keen v. State, 775 So. 2d 263, 274 (Fla. 2000), the Florida Supreme

Court observed, “[w]hen the only possible relevance of an out-of-court statement is

directed to the truth of the matters stated by the declarant, the subject matter is

classic hearsay even though the proponent of such evidence seeks to clothe such

hearsay under a nonhearsay label.” See also Conley v. State, 620 So. 2d 180, 183-

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84 (Fla. 1993) (holding trial court erred in permitting a police officer to testify as

to the contents of a dispatch he heard over his radio to the effect that a man was

chasing a girl with a gun, emphasizing that “[r]egardless of the purpose for which

the State claims it offered the evidence, the State used the evidence to prove the

truth of the matter asserted”).∗

       We also agree with appellant that the state has failed to carry its burden of

proving the error was harmless beyond a reasonable doubt. The state argues the

error was harmless due to the “overwhelming evidence” against appellant. That is

not a correct statement of the law as concerns the harmless error analysis. The

Florida Supreme Court has cautioned that the harmless error test “is not a

sufficiency-of-the-evidence, a correct result, a not clearly wrong, a substantial

evidence, a more probable than not, a clear and convincing, or even an

overwhelming evidence test”; instead, the “focus is on the effect of the error on the

trier-of-fact.” State v. DiGuilio, 491 So. 2d 1129, 1139 (Fla. 1988). Applying that

test, we conclude it cannot be shown that the admission of Mary Summerall’s

statements did not have an effect on the jury.               Such statements were highly


∗
 Even were we to conclude that Ms. Summerall’s statements were not hearsay,
      the contents of the statement[s] were not relevant to establish a logical sequence
      of events, nor was the reason why officers arrived at the scene a material issue in
      the case. . . . . [T]he inherently prejudicial effect of admitting into evidence an
      out-of-court statement relating accusatory information to establish the logical
      sequence of events outweighs the probative value of such evidence. Such practice
      must be avoided.
Conley, 620 So. 2d at 183 (citations and internal quotation marks omitted).
                                               4
accusatory and could only have been viewed by the jury as such, and their

admission was “‘inherently prejudicial.’” Conley, 620 So. 2d at 183 (quoting State

v. Baird, 572 So. 2d 904, 907 (Fla. 1990)). For this reason, therefore, we hold the

trial court’s error was not harmless and appellant is entitled to a new trial.

      REVERSED and REMANDED for further proceedings consistent with this

opinion.

ROWE, J., CONCURS IN RESULT ONLY; WOLF, J., CONCURS WITH
OPINION.




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WOLF, J., Concurring.

      I concur in the result in this case. The victim’s testimony concerning the

mother’s statements of what appellant told her was predominantly being

introduced for the truth of the matter asserted: “he was going to put four bullets in

her head.” This testimony constituted inadmissible hearsay. See Kennedy v. State,

385 So. 2d 1020 (Fla. 5th DCA 1980) (holding that a statement of murder victim

that the defendant intended to kill the victim in the future constituted inadmissible

hearsay).

      The statements made shortly before the assault took place, however, are

relevant and material to demonstrate appellant’s intent to threaten to do violence to

the victim and whether the victim had a well-founded fear of violence. See

Castanon v. State, 39 Fla. L. Weekly D1600 (Fla. 4th DCA July 30, 2014) (holding

that threatening statements that the defendant made immediately after a burglary

were relevant to show his intent to commit an assault during the burglary).

Therefore, if the mother herself had testified as to the defendant’s statements which

she conveyed to the victim or if appellant had directly conveyed the threats to the

victim, the evidence would be admissible as an admission under section

90.803(18), Florida Statutes (2014). See Christopher v. State, 583 So. 2d 642 (Fla.

1991) (holding that testimony of defendant’s daughter that defendant had told her

that he and victim had fought was admissible as an admission).

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