          DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                            FOURTH DISTRICT

                            RONALD SMITH,
                              Appellant,

                                    v.

                         STATE OF FLORIDA,
                              Appellee.

                             No. 4D12-3636

                            [January 6, 2016]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Jeffrey R. Levenson, Judge; L.T. Case No. 06-
2007023026CF10A.

   Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public
Defender, West Palm Beach, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Nancy Jack,
Assistant Attorney General, West Palm Beach, for appellee.

MAY, J.

  The defendant appeals his conviction and sentence for first degree
murder with a deadly weapon. He raises four issues. We find no merit in
any of them and affirm. We write only to address the hearsay issue raised.

   The grand jury indicted the defendant for first degree murder with a
deadly weapon. The first trial resulted in a mistrial. The second trial
resulted in the defendant’s conviction.

   The evidence established that the defendant and victim lived together
from 2002 until her death in December 2007. In November 2007, the
defendant fired a gun at the victim. The victim’s neighbor confirmed the
shooting and that she also heard the defendant say he was going to kill
the victim. The defendant was arrested for domestic violence for this
incident, but the victim waived prosecution.

  The next month, and two days before the murder, the victim called her
daughter and told her that she and the defendant had been in an
argument. The defendant had moved the victim’s car and kept her car
keys so she could not leave. The police arrived, but no one was arrested
for this incident.

   The next day, the daughter learned about a knife incident where the
neighbor overheard the victim tell the defendant to take a knife away from
her throat. The daughter took the victim to get a restraining order. As far
as she knew, the victim filled out the paperwork.

   The victim stayed with the daughter that night, but spent most of the
evening on the phone with the defendant, who called her fifty-six times
from 10:00 p.m. to 6:30 a.m. The defendant was angry and accused the
daughter and her boyfriend of lying about the victim being at their house.
He believed the victim was with another man.

   The next morning, the victim left the daughter’s house for work at 6:00
a.m. The victim’s boss called the daughter around 8:00 or 9:00 a.m., and
told her that the victim did not arrive at work. The daughter drove by the
victim’s house, saw the defendant’s truck parked on the lawn, but did not
see the victim’s car. She assumed the victim and the defendant were
together somewhere and kept driving.

   The daughter then received a call from the neighbor. As a result, she
called her aunt, who agreed to look for the victim’s car. The daughter
returned to the victim’s house with her boyfriend. When she got to the
front door, she saw speckles of blood around the door handle and a sheet
hung over the front door. She called 911.

   She tried gaining entry into the home, but could not. The neighbor
came out and the aunt arrived. The aunt told the daughter that she had
just gotten off the phone with the defendant, who told her that he hurt the
victim. He told her “it’s serious this time,” and he had to turn himself in.

   The daughter called 911 a second time and told the operator exactly
what the defendant had said to the aunt. Then, the aunt called 911 and
requested help. The daughter’s second 911 call is the subject of the
hearsay issue raised by the defendant. When the police arrived, the
daughter told them she thought the victim was dead inside the house.

   The neighbor testified that prior to the daughter’s arrival that morning,
the victim came home in her work uniform. The victim and the defendant
went inside their home. About fifteen minutes later, the defendant left the
house and drove away in the victim’s car. The neighbor knocked on their
front door and every window of the house, but the victim did not answer.

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She felt something was not right. She never saw the victim alive again.

    The defendant called the neighbor and said he had done something
bad. When the neighbor asked if he killed his wife, he hung up the phone.
He called her back and said he was going to wait at Church’s Chicken on
Broward Boulevard. The neighbor told the daughter about the call. Thirty
minutes later, the defendant called the neighbor back and admitted he
killed the victim by stabbing her.

   A sergeant directed the SWAT team to enter the house around noon.
He found the victim dead in the kitchen; she had been stabbed to death.
The police found two cut phone lines. The defendant called another
detective to turn himself in. The detective met the defendant at Church’s
Chicken and arrested him. The defendant told the detective he had been
up for four days. The defendant stated, “Man, my baby dead.” The
defendant admitted his involvement in the victim’s death.

   The victim had black and blue eyes and five other injuries from a
knife—four wounds in the front and one in the back. The victim had no
defensive wounds. The medical examiner concluded the cause of death
was multiple stab wounds and the manner of death was a homicide.

    The defendant testified that he and the victim had been in a
relationship since 1978. According to him, the victim sometimes acted
aggressively and would “go off in space,” not acting like herself. Other
times she was suicidal. The victim had psychotic episodes and her family
or the police would take her away for treatment. She would get better and
then return home.

   He admitted to using crack cocaine from October through December
2007. He did not know if the victim used crack cocaine and he never used
it with her. They had previously used powder cocaine together in the
beginning of their relationship. Drug use affected their relationship and
he was trying to seek help through drug rehab.

   The defendant admitted to the domestic violence incident and his arrest
the month before the victim’s death. He told the police that the victim had
approached him aggressively and he pushed her back, but denied having
discharged a gun. He also denied putting a knife to the victim’s throat,
contrary to the neighbor’s testimony.

   He recalled the incident where he moved the victim’s car. He testified
that the victim had just returned from being Baker Acted and he took her
car keys because he and the daughter agreed the victim should not drive.

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On one occasion, after the victim had slept at the daughter’s house, the
victim slashed his truck’s tires and came at him with a knife. He shut the
door and locked her out.

   On the morning of the victim’s death, the victim came by their house
before work to talk to him about drug treatment. They went into the house
and the defendant went to use the restroom. On his way to the kitchen,
he noticed the keys to the house were not in the door.

   The victim was worried that if she went to treatment she might lose her
job. The defendant told her that if she did not get treatment, he would not
come back to her. According to the defendant, the victim “lost it” and came
at him with a knife. He tried to disarm her, and they tussled with the
knife. He grabbed the handle of the knife and jabbed it back on her head
trying to get her to drop it; the handle hit the victim.

    He retrieved the knife from her and asked for the keys. The victim
lunged at him and out of instinct he stabbed her in the back in self-
defense. When he found the victim unresponsive, he walked around the
house, then left. He did not call the police or the paramedics because he
was afraid the police would not believe him because he was a four-time ex-
felon. He admitted to serving prison time for two counts of attempted
murder. He did not find out that the victim tried to get a restraining order
against him until about one month after the incident.

   The jury found the defendant guilty of first degree murder with a deadly
weapon. The court sentenced the defendant to life imprisonment without
parole. From his conviction and sentence, the defendant now appeals.

    The issue we address is the admissibility of two statements. The first
is the daughter’s statement, made during her second call to 911, on the
morning of the murder. On that 911 tape, the daughter told the dispatcher
that the defendant had told the aunt “it was serious this time” and he’s
going to “turn himself in.” The second is the aunt’s statement to the
daughter about what the defendant had told the aunt.

   The daughter’s statement on the 911 tape was the subject of a pre-trial
hearing where defense counsel sought to have the recording excluded as
double hearsay. At that same hearing, the State played a tape of the aunt
calling 911 immediately after the daughter called 911 for the second time.
During the aunt’s 911 call, she identified herself as the victim’s sister-in-
law. She repeated multiple times, “Could you please get somebody.”

   The trial court concluded that the aunt’s statement to the daughter,

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about what the defendant had told the aunt, was an excited utterance
because the aunt’s statements were all made around the same time and
the aunt was under the stress and excitement of the defendant’s admission
to her and the event. The court also found it could hear the inflections in
the aunt’s voice during the aunt’s 911 call. The defendant’s statements to
the aunt were admissions.

   At the same pre-trial hearing, the aunt admitted she arrived at the
house before the victim’s body was discovered. But, she denied seeing
blood on the front door, denied seeing a sheet over the front door, and
denied that the defendant called her while she was with the daughter at
the front door. She even denied calling 911. The State played the
daughter’s and the aunt’s 911 tapes to impeach her.

   The aunt then admitted she was in front of the house when the
daughter made her first 911 call. She again denied that the defendant
called her while she was with the daughter. The aunt confirmed it was her
voice on the 911 tape, but she did not remember making the call. She
claimed that the only reason she called 911 was because the daughter was
hysterical. She later admitted the defendant called her and told her “it’s
bad this time.”

   The defendant argues the trial court abused its discretion in admitting
the daughter’s statement during her second 911 call where she relayed the
information from her aunt regarding the aunt’s conversation with the
defendant. He argues the statement was inadmissible double hearsay
because the aunt’s statement to the daughter was not an excited
utterance.

   The State responds that because the 911 recording is not included in
the record, there is an inadequate record to review the issue. We disagree.

   On the merits, the State argues the aunt’s statement to the daughter
about what the defendant told her was admissible as an excited utterance,
which was established by the recording of the aunt’s phone call to 911.
During that call, it was apparent the aunt was under the influence of a
startling event. Alternatively, the State argues the aunt’s statement was
admissible as a spontaneous statement. Lastly, the State argues that if
the admission of the daughter’s statement was error, the error was
harmless because it was cumulative of other evidence as the defendant
admitted to multiple persons he was involved in the victim’s death.

   “The standard of review for admissibility of evidence is abuse of
discretion, limited by the rules of evidence. [W]hether evidence falls within

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the statutory definition of hearsay is a matter of law, subject to de novo
review.” Browne v. State, 132 So. 3d 312, 316 (Fla. 4th DCA 2014)
(alteration in original) (quoting Lucas v. State, 67 So. 3d 332, 335 (Fla. 4th
DCA 2011)). “Thus, ‘whether evidence is admissible in evidence under an
exception to the hearsay rule is a question of law . . . [subject to] the de
novo standard of review.’” Id. (alteration and omission in original) (quoting
Powell v. State, 99 So. 3d 570, 573 (Fla. 1st DCA 2012)).

   “‘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.” § 90.801(1)(c), Fla. Stat. (2012). “Except as provided
by statute, hearsay evidence is inadmissible.” Id. § 90.802.

    “An excited utterance, or ‘[a] statement . . . relating to a startling event
or condition made while the declarant [is] under the stress of excitement
caused by the event or condition,’ is a hearsay exception.” Thomas v. State,
125 So. 3d 928, 929 (Fla. 4th DCA 2013) (alterations and omission in
original) (quoting § 90.803(2), Fla. Stat. (2008)).           There are three
requirements for a statement to qualify as an excited utterance: “‘(1) there
must have been an event startling enough to cause nervous excitement;
(2) the statement must have been made before there was time to contrive
or misrepresent; and (3) the statement must have been made while the
person was under the stress of excitement caused by the startling event.’”
Id. at 929–30 (citation omitted).

   Here, the startling event which caused the aunt’s nervousness or
excitement was the suspicion that the victim was hurt and/or dead inside
the home. This startling event was evidenced by the aunt’s statements on
her 911 call that she saw blood on the door, that her sister-in-law was
hurt inside the house, and her repeated request for help. The startling
event was further corroborated by the daughter’s 911 calls, which were
made directly before the aunt’s call.

   Because the aunt’s statement to the daughter about what the
defendant told her was made immediately before the aunt called 911, it
was made before there was any time to contrive or misrepresent the facts.
This is evidenced by the 911 tapes themselves and the order in which
dispatch received the calls.

   The aunt’s statement to the daughter was made while she was under
the stress and excitement of the event. The trial court found the aunt’s
stress was apparent by the inflection in her voice during her 911 call. The
transcript of the aunt’s 911 call sufficiently shows she was excited as she
kept pleading with the dispatcher to send help.

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   The defendant highlights the aunt’s testimony where she denied
making the statement to the daughter. However, the record reflects the
aunt was not a credible witness because she testified inconsistent with the
content in the 911 tapes, most likely because the defendant is her brother.

    Because the aunt’s statement to the daughter was: (1) made under the
stress and excitement of the suspected death of the victim; (2) after the
defendant called the aunt admitting his involvement with the victim’s
death; and (3) was made close to the startling event, the trial court
correctly determined it was admissible as an excited utterance. See Barron
v. State, 990 So. 2d 1098, 1101 (Fla. 3d DCA 2007). We therefore affirm.

   Affirmed.

GROSS and CONNER, JJ., concur.

                           *         *        *

   Not final until disposition of timely filed motion for rehearing.




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