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Carter v. State

Florida Court of Appeals, Fourth District

June 21, 2017

DAVID WAYNE CARTER, Appellant,
v.
STATE OF FLORIDA, Appellee.

         Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Meenu Sasser, Judge; L.T. Case No. 13-CF-012770-AMB.

          Antony P. Ryan, Regional Counsel, and Richard G. Bartmon, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, Fourth District, West Palm Beach, for appellant.

          Pamela Jo Bondi, Attorney General, Tallahassee, and Allen R. Geesey, Assistant Attorney General, West Palm Beach, for appellee.

          ON MOTION FOR REHEARING

          Gross, J.

         We deny the motion for rehearing, but write to distinguish a recent Florida Supreme Court case and to further discuss the application of section 90.108(1), Florida Statutes (2015).

         One day after our panel opinion issued, the Florida Supreme Court released Tundidor v. State, No. SC14-2276 (Fla. Apr. 27, 2017), where it approved a trial court's ruling allowing the introduction of a witness's deposition testimony contemporaneously with that same witness's testimony from an earlier, separate Arthur hearing. The court explained the rule of completeness "is not limited to situations where statements are taken out of context, " and that the plain language of section 90.108 allows a party to seek the introduction of other statements when "fairness" requires that those statements be considered contemporaneously with other statements. Id. at *7.

          Appellant relies on Tundidor to argue that his post-arrest exculpatory statement to a detective should have been introduced contemporaneously with the controlled call between appellant and the victim.

         We reaffirm our holding that because appellant's post-arrest statement neither explained nor clarified the controlled call, the introduction of the controlled call, when viewed in isolation, did not create a misleading impression. Fairness thus did not require the contemporaneous introduction of the post-arrest exculpatory statement.

Florida's rule of completeness, originally enacted in 1976, provides:
When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require him or her at that time to introduce any other part or any other writing or recorded statement that in fairness ought to be considered contemporaneously.

§ 90.108(1), Fla. Stat. (2015). The federal rule is similar. See Fed. R. Evid. 106 ("If a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part--or any other writing or recorded statement--that in fairness ought to be considered at the same time.").[1]

         Under the section 90.108(1) rule of completeness, "once a party 'opens the door' by introducing part of a statement, the opposing party is entitled to contemporaneously bring out the remainder of the statement in the interest of fairness." Larzelere v. State, 676 So.2d 394, 401-02 (Fla. 1996).

         The origins of the rule go back to the sixteenth century and the focus was on different parts of the same writing or statement. See Barbara E. Bergman & Nancy Hollander, Wharton's Criminal Evidence § 4:10 (15th ed. 1997). Lord Chief Justice Charles Abbott recognized the danger in admitting only a portion of a conversation in evidence, explaining "one part taken by itself may bear a very different construction and have a very different tendency to what would be produced if the whole were heard, for one part of a conversation will frequently serve to qualify and to explain the other." Id. (quoting Thomson v. Austen, 2 Dowl. & R. 358, 361 (1823)).

         A "classic example of the possibilities of distortion" when a portion of a statement is omitted is where one mentions only the last phrase of the bible quote, "The fool hath said in his heart, there is no God." McCormick on Evidence § 56 (Kenneth S. Broun, et al. eds., 6th ed. 2006) (citing 7 John H. Wigmore, Evidence in Trials at Common Law § 2094 (Chadbourn rev. 1978)). Quoting the Bible as saying "there is no God, " would "be a misleading half-truth because it divorces the quotation from its context." Id. Thus, the purpose of the rule of completeness "is to ensure that a ...


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