       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                            FOURTH DISTRICT

                         LEVARES CONYERS,
                             Appellant,

                                    v.

                         STATE OF FLORIDA,
                              Appellee.

                             No. 4D17-3790

                            [ July 17, 2019 ]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Barbara Anne McCarthy, Judge; L.T. Case No. 09-12338
CF10B.

  Carey Haughwout, Public Defender, and Mara C. Herbert, Assistant
Public Defender, West Palm Beach, for appellant.

   Ashley Moody, Attorney General, Tallahassee, and Mitchell A. Egber,
Assistant Attorney General, West Palm Beach, for appellee.

TAYLOR, J.

   Levares Conyers appeals his judgment of conviction and sentence for
trafficking by purchase of oxycodone. We reverse for a new trial because
the trial court erred in admitting hearsay testimony from a police officer
about highly prejudicial information he received from a non-testifying
confidential informant. Also, because the record indicates that the trial
court failed to make an independent determination of appellant’s
competency at the time of trial, we direct the trial court to conduct a
competency hearing before trial on remand.

    After a reverse sting operation, appellant was charged by amended
information with trafficking in oxycodone by possession (Count I),
trafficking in oxycodone by purchase (Count II), and trafficking in
morphine (Count IV). Counts III and V of the information alleged offenses
committed by a co-defendant. Before trial, the court found that there were
reasonable grounds to believe appellant was not competent to proceed to
trial and entered orders appointing experts to determine appellant’s
competency after. The record, however, does not show that the trial court
conducted a competency hearing or entered an order finding appellant
competent to proceed. 1

   At trial, the undercover officer who conducted the drug buy testified
that before the sting operation, a confidential informant told the officer
that a six-foot-tall, heavy-set black male known as Angel, who drove a two-
door red Ford F-150 pickup truck, was “interested in purchasing large
quantities of prescription pills in the City of Hollywood.” The officer
testified that the informant also gave him Angel’s phone number. With the
description and phone number provided by the informant, the officer
identified appellant as Angel and began his investigation.

    Appellant objected to the officer’s testimony and moved for a mistrial.
He argued that the officer’s testimony about the confidential informant’s
comments about appellant was hearsay and improperly suggested that
appellant had a propensity to purchase large amounts of opiates. The
State argued that the statements were not hearsay because they were not
offered for the truth of their content but were intended to show the effect
on the listener, i.e., the police officer, who then opened an investigation.
The trial court denied the motion. 2

    The jury found appellant not guilty of trafficking in oxycodone by
possession (Count I) and trafficking in morphine (Count IV) but found him
guilty of trafficking in oxycodone by purchase (Count II). The trial court
sentenced appellant to seven years in prison, with a mandatory minimum
of three years, to be followed by three years of drug offender probation.

   A trial court’s ruling on a motion for mistrial is reviewed on appeal for
an abuse of discretion. Salazar v. State, 991 So. 2d 364, 371 (Fla. 2008).
“A motion for mistrial should be granted only when it is necessary to
ensure that the defendant receives a fair trial.” Cole v. State, 701 So. 2d
845, 853 (Fla. 1997). Whether a statement is hearsay is a legal question
that is subject to de novo review. Padgett v. State, 73 So. 3d 902, 904 (Fla.
4th DCA 2011). Also, “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.” Browne v. State, 132 So. 3d 312, 316 (Fla. 4th
DCA 2014) (quoting Powell v. State, 99 So. 3d 570, 573 (Fla. 1st DCA

1 On appeal, the State concedes error on this issue and supports a remand for

the trial court to conduct a nunc pro tunc competency hearing.

2The court also denied motions for mistrial based on the use of the informant’s
out-of-court statements after the State’s opening argument and again during the
State’s closing argument.

                                      2
2012)).

   In State v. Baird, 572 So. 2d 904, 905 (Fla. 1990), the Florida Supreme
Court held that it was error 3 for the trial court to permit an investigator to
testify on direct examination that he had obtained information that the
defendant, on trial for racketeering and bookmaking, was a major gambler
operating a gambling business in the area. The court noted that at the
time of the elicited testimony, the investigator’s motive for investigating the
defendant was not a material fact in issue. Id. at 908. The court further
explained:

      [W]hen the only purpose for admitting testimony relating
      accusatory information received from an informant is to show
      a logical sequence of events leading up to an arrest, the need
      for the evidence is slight and the likelihood of misuse is great.
      In light of the inherently prejudicial effect of an out-of-court
      statement that the defendant engaged in the criminal activity
      for which he is being tried, we agree that when the only
      relevance of such a statement is to show a logical sequence of
      events leading up to an arrest, the better practice is to allow
      the officer to state that he acted upon a “tip” or “information
      received,” without going into the details of the accusatory
      information.

Id. (citing Harris v. State, 544 So. 2d 322, 324 (Fla. 4th DCA 1989)).

   In Saintilus v. State, 869 So. 2d 1280, 1281-82 (Fla. 4th DCA 2004), we
held that it was reversible error for the trial court to permit two detectives
to testify that during their investigation police obtained the alias of a
possible perpetrator of a shooting and that an officer identified the
defendant as the owner of the alias. Similarly, in Wilding v. State, 674 So.
2d 114, 118 (Fla. 1996), receded from on other grounds by Devoney v. State,
717 So. 2d 501 (Fla. 1998), the Florida Supreme Court held that it was
reversible error for the trial court to admit “testimony that the lead
detective in the murder investigation received an anonymous tip that
named [the defendant] in connection with the murder.”

   In this case, the trial court erred in allowing the officer to give inherently
prejudicial hearsay testimony regarding appellant’s alleged drug activity in

3  The Florida Supreme Court deemed the error harmless because the
investigator’s testimony would have been admissible on redirect, after the defense
had put the investigator’s motive at issue by attempting to establish during cross-
examination that the defendant had been targeted for prosecution. Id. at 908.

                                        3
the community. The State’s contention that this testimony was not
hearsay is simply wrong. Even if the informant’s statements were not
offered for their truth, they were irrelevant, because the police officer’s
reason for investigating appellant was immaterial. See Baird, 572 So. 2d
at 908. Moreover, the risk of unfair prejudice outweighed any probative
value. The error was not harmless, see State v. DiGuilio, 491 So. 2d 1129
(Fla. 1986). Accordingly, we reverse the judgment of conviction and
remand for a new trial.

   Because it appears that the trial court failed to conduct an independent
competency determination at the time of trial, we instruct the court to
conduct a hearing to determine appellant’s competency before retrial on
remand.

   Reversed and Remanded.

GROSS and CIKLIN, JJ., concur.

                           *         *        *

   Not final until disposition of timely filed motion for rehearing.




                                    4
