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Florida Third DCA analyzes Florida law re permissible voir dire questions and admissibility of excited utterances and dying declarations

On July 5, 2018, in George v. State of Florida, No. 3D16-423, a criminal case, the Florida Third DCA considered several procedural and evidentiary issues that have a broader applicability to civil cases as well. The defendant was charged with first degree murder, but the police had been unable to recover the murder weapon. After his conviction, the defendant argued on appeal that the prosecution had erred during the voir dire of prospective jurors by asking the panel “[i]f the State proves to you beyond a reasonable doubt that a firearm was, in fact, used but we don’t have it to show to you would you still come back with a conviction?” The defendant argued on appeal that the prosecutor was thereby improperly asking the jurors to pre-judge the case. The Third DCA acknowledged that this was improper, citing Renney v. State, 543 So. 2d 420, 421 (Fla. 5th DCA 1989) (finding that it was improper for the prosecutor to ask the prospective jurors to commit to finding the defendant guilty if the State “prove[d] every element of the crime, but [did not] prove one particular fact”). However, the Third DCA concluded that the trial court did not abuse its discretion in denying a mistrial because the defense counsel objected at trial, was sustained, and no answers were given.

The defendant also argued on appeal that the trial court erred in allowing the prosecution to introduce testimony about the victim’s last words at the crime scene before he died. The Third DCA concluded that the statement was admissible as an excited utterance under Fla. Stat. Section 90.803(2), also quoting from Rogers v. State, 660 So. 2d 237, 240 (Fla. 1995): “[a]n excited utterance is admissible as an exception to the hearsay rule because the declarant does not have the reflective capacity necessary for conscious misrepresentation. Thus, statements made by someone who is excited are spontaneous and have sufficient guarantees of truthfulness.” The Third DCA also concluded the statement was admissible as a dying declaration under Fla. Stat. Section 90.804(2)(b), quoting from Hayward v. State, 24 So. 3d 17, 30 (Fla. 2009) that in order for the dying declaration exception to apply, “the deceased must have known and appreciated his condition as being that of an approach to certain and immediate death, although it is not necessary that the declarant make express utterances that he would never recover.”