Author Topic: Witness #8 (DeeDee)  (Read 282742 times)

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Offline TalkLeft

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Re: Witness #8 (DeeDee)
« Reply #270 on: August 19, 2012, 04:11:55 PM »
Yes, because the only reason for having her testify is for the truth of what Martin was saying. If the circumstances indicated Martin wasn't telling her what was really occurring, her testimony wouldn't matter no matter how accurately she related Martin's false tales. The premise behind the spontaneous statement exception is that someone narrating an exciting event as it occurs is unlikely to have the time for reflection, so they probably aren't making it up. In Florida, the spontaneous statement exception is not quite as broad as it may appear from the text of the statute. The Florida supreme court said in State v. Juno that a spontaneous statement must be made in response to "an event startling enough to cause nervous excitement." Notice how de la Rionda emphasizes Martin's state of mind. I think he may have had the spontaneous statement exception in mind.

I agree that the lack of trustworthiness pertains to Trayvon's statements to DeeDee, not Dee Dee's recitation of them. But, a spontaneous statement and excited utterance and state of mind are all separate and distinct exceptions to the hearsay rule. I don't think they are  interchangeable.

In Florida, there is a distinction between a spontaneous statement and an excited utterance.  They can overlap, but they are not the same. A spontaneous statement need not be the product of a startling event. An excited utterance does need to relate to a startling event. The admissibility factors for each are different. Only a spontaneous statement, not an excited utterance, will be excluded if there are indications of lack of trustworthiness.

The hearsay exceptions are here.

Quote
1) SPONTANEOUS STATEMENT.—A spontaneous statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter, except when such statement is made under circumstances that indicate its lack of trustworthiness.

(2) EXCITED UTTERANCE.—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

If it is a spontaneous statement, i.e., a statement Trayvon made to DeeDee about what was happening at the time it was happening, and circumstances indicate Martin's statements to Dee Dee lack trustworthiness, it will be excluded. The excited utterance exception does not have a lack of trustworthiness factor.

A third exception applies to statements made by Trayvon to DeeDee that show Trayvon's state of mind. Like spontaneous statements, and unlike excited utterances,  lack of trustworthiness can result in the exclusion of the statement.

Quote
3) THEN-EXISTING MENTAL, EMOTIONAL, OR PHYSICAL CONDITION.—
(a) A statement of the declarant’s then-existing state of mind, emotion, or physical sensation, including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health, when such evidence is offered to:

1. Prove the declarant’s state of mind, emotion, or physical sensation at that time or at any other time when such state is an issue in the action.

2. Prove or explain acts of subsequent conduct of the declarant.

(b) However, this subsection does not make admissible:

1. An after-the-fact statement of memory or belief to prove the fact remembered or believed, unless such statement relates to the execution, revocation, identification, or terms of the declarant’s will.
2. A statement made under circumstances that indicate its lack of trustworthiness.

The delcarant, as MJW says, is  Trayvon, not DeeDee. Dee Dee would be the witness  who is testifying about what the declarant (Trayvon) said to her.

Offline unitron

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Re: Witness #8 (DeeDee)
« Reply #271 on: August 19, 2012, 05:59:02 PM »
So both are contemporaneous but the excited utterance requires an unexpected stimulus?

Offline TalkLeft

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Re: Witness #8 (DeeDee)
« Reply #272 on: August 19, 2012, 06:16:42 PM »
So both are contemporaneous but the excited utterance requires an unexpected stimulus?

According to the Juno case that MJW cited,

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The two exceptions differ mainly in the amount of time that may lapse between the event and the statement describing the event. Under Section 90.803(2) it is not necessary that there be contemporaneity between the event and the statement. As long as the excited state of mind is present when the statement is made, the statement is admissible if it meets the other requirements of Section 90.803(2). This excited state may exist a substantial length of time after the event. Factors that the trial judge can consider in determining whether the necessary state of stress or excitement is present are the age of the declarant, the physical and mental condition of the declarant, the characteristics of the event and the subject matter of the statements. Whether the necessary state of mind is present is a preliminary fact for the court to determine pursuant to Section 90.104.

 If a person involved in an automobile accident is rendered unconscious, a statement made a number of days after the accident when he or she regains consciousness can be admitted as an excited utterance if it was made while the person was excited about the accident.

Under  Section 90.803(2) the statement must only "relate" to the event causing the excitement; Section 90.803(1) is limited to statements which "describe or explain" the event.

Offline DebFrmHell

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Re: Witness #8 (DeeDee)
« Reply #273 on: August 19, 2012, 08:51:38 PM »
I have read and reread DD's statement.

If they discredit her, the things that match to Zimmerman's statement will be discredited also, right?

Offline Lousy1

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Re: Witness #8 (DeeDee)
« Reply #274 on: August 19, 2012, 09:35:44 PM »
I have pondered the same question. IPerhaps this is all a bit premature until DeeDee is subject to adverserial examination. If I had to guess, she will be forced to admit she was coached which may of may not descredit all of her testimony.


Offline MJW

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Re: Witness #8 (DeeDee)
« Reply #275 on: August 19, 2012, 11:27:04 PM »
Earlier, I said State v. Juno. I meant State v. Jano. Juno's a movie.

Offline MJW

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Re: Witness #8 (DeeDee)
« Reply #276 on: August 20, 2012, 12:28:13 AM »
I now discover to my surprise that the "excited state" requirement for spontaneous statements was overturned in Deparvine v. State, 995 So. 2d 351 (Fla. 2008):
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As noted, in Hutchinson, this Court stated, "Both the excited utterance and the spontaneous statement exceptions require the declarant to be laboring under the influence of a startling event at the time that the statement is made." 882 So.2d at 951. In Lyles v. State, 412 So.2d 458 (Fla. 2d DCA 1982), the Second District held, "In order for the spontaneous statement exception to the hearsay rule to be applicable, there must be some occurrence startling enough to produce nervous excitement and render the utterance spontaneous and unreflecting." Id. at 460. In State v. Skolar, 692 So.2d 309 (Fla. 5th DCA 1997), the Fifth District held a 911 call inadmissible because it was "not made as the result of a startling or stressful event, and it therefore cannot qualify under § 90.803 as either a spontaneous statement or an excited utterance." Id. at 311. However, because we now conclude that this view requiring a startling event in order for the spontaneous exception to apply is contrary to the underlying principles embodied in section 90.803(1), we now reject this view.

Offline annoyedbeyond

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Re: Witness #8 (DeeDee)
« Reply #277 on: August 20, 2012, 04:58:24 AM »
I have pondered the same question. IPerhaps this is all a bit premature until DeeDee is subject to adverserial examination. If I had to guess, she will be forced to admit she was coached which may of may not descredit all of her testimony.

If she was coached and if she admits it (yes, I think she was) then the portion of her testimony that matches GZ's should be okay--since it does match. It's some of the other stuff that the jury may or may not wish to ignore.

O'Mara may want her on the stand just to buttress some of GZ's version as well as to show the jury the coaching?


Offline FromBelow

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Re: Witness #8 (DeeDee)
« Reply #278 on: August 20, 2012, 05:38:29 AM »
If she was coached and if she admits it (yes, I think she was) then the portion of her testimony that matches GZ's should be okay--since it does match. It's some of the other stuff that the jury may or may not wish to ignore.

O'Mara may want her on the stand just to buttress some of GZ's version as well as to show the jury the coaching?

If it's show she was coached I can't imagine any of her testimony or statements being given credibility by anyone. Also, if it was coaching from the State I think the s**t is going to hit the fan.

Offline DebFrmHell

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Re: Witness #8 (DeeDee)
« Reply #279 on: August 20, 2012, 07:24:39 AM »
If it's show she was coached I can't imagine any of her testimony or statements being given credibility by anyone. Also, if it was coaching from the State I think the s**t is going to hit the fan.

I don't know that the State had much to do with her coaching but that interview was leading the witness at its finest.  Since it is just a sworn statement, I don't think that it carries the same weight as it would if made during a trial.

I think that may all be Crump although I am wondering if he told de la Rionda what kind of scope to maintain when asking questions of her.  We know that Crump was there at the interview before it started.  We know that the state needed certain answers to insure getting its Probable Cause.

I do wonder why, after all of the hard work in searching for Dee Dee, did Crump settle for just a phone interview?  That defies reason to me.  I would think that they would do a face-to-face since she is the last person to have talked to Trayvon Martin.

Quote
BDLR: OK, OK. Alright. Now you previously, you were called by Mr. Crump, Mr. Benjamin
Crump that was here earlier,
and some attorneys called you up, right?
Dee Dee: Yeah.
BDLR: You remember talking to them on the phone?
Dee Dee: Yes.
BDLR: And did you attempt as best you could to tell them the truth too…about what happened?
Do you remember talking to them at all?
Dee Dee: Yeah.

Why I think she was coached if further up in the interview.  BdlR  wanted her to say that TM was being chased.
Quote
BDLR: On the phone. Did Trayvon ever expand on that? Did he ever say something else about
that , now he’s out like that…like, uh…whether the guy had gotten out of the car? Did he ever
describe, “Yeah, the guy, now he’s out of the car, he’s chasing me.” I know you said the guy, he
said the guy was following him. But did he ever say the guy got out of the car?
Dee Dee: You want that too?

He was anticipating the excited utterance, IMO, but didn't really seem to get that far since she didn't really expand the excited part for him, IMO:
Quote
BDLR: So, was Trayvon at that time…you could tell he was like, out of breath, like excited…
Dee Dee: Yeah. . .
BDLR: …like, like…
Dee Dee: Yeah.
BDLR: OK.


Offline annoyedbeyond

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Re: Witness #8 (DeeDee)
« Reply #280 on: August 20, 2012, 08:50:37 AM »
If it's show she was coached I can't imagine any of her testimony or statements being given credibility by anyone. Also, if it was coaching from the State I think the s**t is going to hit the fan.

Coaching from Crump during the time he had her before he made her available. Didn't aspects of her story change a little as new information came out? I think I remember that but who knows for sure anymore.


Offline turbo6

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Re: Witness #8 (DeeDee)
« Reply #281 on: August 20, 2012, 10:14:19 PM »
BDLR was definitely interested in an admittance of perhaps a confrontation prior to the 911 call, verbal or otherwise. He wasn't really pressing on minor stuff, but any indication of aggressiveness from GZ.

The part of her interview I found most compelling was when BDLR asked if Trayvon ever mentioned GZ was coming at him like he was going to hit him. DeeDee replies "Yeah, you could say that". It seems like she is about to elaborate more but then simply chalks it up to GZ being all crazy and stuff.

I think she later realized that perhaps saying that was implying Trayvon was prepping for a fight. BDLR seems to want to wrap up the interview and then she decides to express guilt and state he wasn't a "fighter".

Of course this brings us all back to square one, wondering how TM ended up away from his dad's house, tired and out of breath and still in close proximity to the T.


Offline TalkLeft

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Re: Witness #8 (DeeDee)
« Reply #282 on: August 20, 2012, 11:19:24 PM »
I now discover to my surprise that the "excited state" requirement for spontaneous statements was overturned in Deparvine v. State, 995 So. 2d 351 (Fla. 2008):

Thanks for letting us know. I deleted your earlier comment with pre-Deparvine rulings. Hope that's ok.

Offline DebFrmHell

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Re: Witness #8 (DeeDee)
« Reply #283 on: August 20, 2012, 11:52:37 PM »
Thanks for letting us know. I deleted your earlier comment with pre-Deparvine rulings. Hope that's ok.

So inquiring minds want to know what Bernie de la Rionda was fishing for when questioning Dee Dee and trying to get her to admit that TM  was excited?  How does that play out with the things she says he said...?  Is all of it admissible then?

Offline nomatter_nevermind

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Re: Witness #8 (DeeDee)
« Reply #284 on: August 21, 2012, 05:13:54 AM »
So inquiring minds want to know what Bernie de la Rionda was fishing for when questioning Dee Dee and trying to get her to admit that TM  was excited?   

He probably wants Excited Utterance in reserve, in case the judge does rule against Spontaneous Statement.

Quote
Is all of it admissible then?

On the hearsay, too early to say, and probably will be until the judge actually rules on it.

When O'Mara deposes Dee Dee, he may get something that will convince the judge that Spontaneous Statement doesn't apply.

I expect some of Dee Dee's opinions to be excluded. I mean like the headset falling, or Martin getting bumped as opposed to doing the bumping. She'll probably be restricted to describing the sounds she heard, leaving the jury, or the judge in an immunity hearing, to draw conclusions. See Fla. Stat. § 90.701.

I'm looking forward to hearing Dee Dee describe what grass sounds like.

 

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