Jimmy R. Baity, Appellant,
State of Florida, Appellee.
final until disposition of any timely and authorized motion
under Fla. R. App. P. 9.330 or 9.331.
appeal from the Circuit Court for Leon County. Francis
Thomas, Public Defender, and Megan Long, Assistant Public
Defender, Tallahassee, for Appellant.
Moody, Attorney General, Tallahassee, and Mitchell A. Egber,
Assistant Attorney General, West Palm Beach, for Appellee.
Jimmy R. Baity, appeals his convictions and sentences for
aggravated stalking after court order, attempted first-degree
murder, and burglary of a conveyance with person assaulted.
He argues on appeal that the trial court erred in admitting
into evidence a voicemail for his wife, the victim, left by
his mother and in denying his motions for a continuance and a
mistrial. Finding no abuse of discretion in the trial
court's denial of Appellant's motions, we affirm as
to those issues without comment. As for the admission of the
voicemail, we conclude for the reasons that follow that the
trial court was correct in determining that it was admissible
as an excited utterance. We, therefore, affirm
Appellant's convictions and sentences.
Appellant's trial, the State called Maple Hamilton, his
mother. She testified about an early-morning phone call from
Appellant in which he told her that he might beat the victim.
"Shortly after" her conversation with Appellant,
Hamilton called the victim and left the following voicemail:
Laurie, you need to talk to me. You need to pick up this
phone and talk to me. Please do. I'm saving your life,
sweetheart. Please pick up the phone and talk to me . Do not
go to that house. Please do not go there. Please, Lord, pick
up the phone and talk to me. I'm trying to save you
again. Don't go to that house. Please don't go to
that house. I love you. Bye.
asked why she left the voicemail, Hamilton testified that she
was concerned that Appellant would violate his injunction by
having contact with the victim and that she went back to
sleep after leaving the voicemail. The victim described
Hamilton's demeanor on the voicemail as being scared.
When asked if Hamilton seemed upset, the victim replied,
"Yeah. So that's when I called her back." The
trial court overruled defense counsel's hearsay objection
to the voicemail, finding in part that the "State has
now laid a sufficient foundation for the excited
utterance." The jury found Appellant guilty as charged
on the three counts, and the trial court sentenced him to
concurrent terms of life and five years' imprisonment.
This appeal followed.
challenges the trial court's excited utterance ruling on
appeal. "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." § 90.801(1)(c), Fla. Stat.
(2017). Pursuant to section 90.803(2), Florida Statutes
(2017), an exception to hearsay includes a "statement or
excited utterance relating to a startling event or condition
made while the declarant was under the stress of excitement
caused by the event or condition." The following
elements must be met for the exception to apply: (1) there
must be 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 be made while the person is under the stress
or excitement caused by the event. Blandenburg v.
State, 890 So.2d 267, 269 (Fla. 1st DCA 2004). A trial
court's ruling on the admissibility of a statement as an
excited utterance is reviewed for an abuse of discretion.
Hudson v. State, 992 So.2d 96, 109 (Fla. 2008);
Williams v. State, 967 So.2d 735, 748 (Fla. 2007).
support of his argument, Appellant relies upon Ms.
Hamilton's testimony that she only called the victim
because she was concerned that he would violate his
injunction prohibiting contact with the victim and that she
went back to sleep after leaving the voicemail. The problem
with this reliance, however, is that the victim testified
that Hamilton's demeanor was scared. It was because
Hamilton seemed upset on the voicemail that the victim called
her back. The voicemail itself corroborates the victim's
characterization of Hamilton's demeanor. Moreover,
although Appellant argues that it was not established that
Hamilton left the voicemail before she had time to
misrepresent or contrive, Hamilton affirmatively responded
when asked if her call to the victim was made "shortly
after" her call with Appellant. Based upon such, the
trial court did not err in overruling Appellant's hearsay
objection. See, e.g., Roop v. State, 228
So.3d 633, 639-40 (Fla. 2d DCA 2017) (holding that the trial
court did not abuse its discretion in determining that the
excited utterance hearsay exception applied where the victim
stated to a 911 operator that someone threw a metal pipe at
his car and where there was no time to contrive or
mispresent); Taylor v. State, 146 So.3d 113, 115-16
(Fla. 5th DCA 2014) (holding that statements made
"minutes" after an event by the ex-girlfriend whose
armed ex-boyfriend, the appellant, walked in front of her car
while she was driving, yelled insults, and threatened to kill
her were admissible as excited utterances notwithstanding an
officer's testimony that the ex-girlfriend had calmed
down as she was talking to him).
we affirm Appellant's convictions and sentences.
and B.L. Thomas, JJ., concur; Wolf, ...