Evidence Exam Fall 2018

LAW 6330 (4 credits)

Professor Pedro A. Malavet
Fall 2018

Instructions

INSTRUCTIONS AT A GLANCE:

Exam is sixteen (16) pages long; twelve (12) True/False (40%) and one Essay (60%).
True/False is to be answered on the Scantron form not in ExamSoft.
Laptops must be on ExamSoft from the start of the exam.
Essay Length Limit: 18,000 characters all-inclusive, equivalent to ten (10) pages.
No abbreviations or acronyms of any kind, other than FRE and TOMA.
Use proper names. Do not substitute the names persons with generic labels like “appellant” or “defendant”.
No electronics other than ExamSoft laptops. Includes headphones of any kind.
Consult annotated Rule-book only during the exam.
Instructed result only. “Dissents” fail.
Four-hour time limit.
The Office of Student Affairs will hand out, proctor and collect the answers to this examination. You must follow all of their instructions.
Penalty for each minor rules violations, except length: 10% of part points.
Penalty for major violations is failure and referral for discipline.

Before the exam starts, you may read the instructions, AND COUNT TO MAKE SURE THAT YOU HAVE ALL SIXTEEN (16) PAGES, AND YOU SHOULD WRITE YOUR EXAM NUMBER ON EVERY PAGE. IF YOU WILL USE A LAPTOP DURING THE EXAM, YOU MUST LOG INTO EXAMSOFT AT THE START OF THE TEST. OTHERWISE, DO NOT GO BEYOND PAGE THREE (THE END OF THE INSTRUCTIONS) OR READ ANY OTHER PART OF THE EXAM BEFORE YOU ARE INSTRUCTED TO START.

EXAMSOFT USERS MUST LOG INTO THE SYSTEM AT THE START OF THE EXAMINATION AND REMAIN IN THE SOFTWARE’S ANSWER-ONLY ENVIRONMENT FOR THE ENTIRE TEST PERIOD.

SHARING THE EXAM PASSSWORD WITH ANYONE OUTSIDE THE EXAM ROOMS OR SHARING YOUR EXAM ID WITH ANYONE ELSE IS A SERIOUS BREACH AND WILL RESULT IN A FAILING GRADE.

COMPLETED EXAMS WILL BE COLLECTED BY THE OFFICE OF STUDENT AFFAIRS. IF YOU FINISH EARLY, PLEASE GO TO THE OFFICE OF STUDENT AFFAIRS TO TURN IN THE COMPLETED EXAM. THE OFFICE OF STUDENT AFFAIRS WILL SEND PERSONNEL TO THE EXAM ROOM TO COLLECT EXAMS AT THE END OF THE EXAMINATION PERIOD.

Open Rules. “Open-Rules” means that you may have with you during the examination your required 2018 Mueller & Kirkpatrick Federal Rules of Evidence supplement. No substitutions will be allowed. Your supplements may be annotated with handwritten notes, but shall not have any attachments other than tabs to mark the location of specific material (the tabs may have on them numbers and the short titles of the referenced material and nothing more). Only handwriting may cover the blank spaces and the original printing on the supplements. The use of stick-on labels or paper, white-out or any other method to eliminate any of the original printing is prohibited. Other than the addition of handwritten notes and tabs, the supplements shall be in their original condition, no material may be added nor may any material be removed in any way. The supplements must be in their original bound form at the start of and throughout the examination.

Honor/Conduct Code. You are bound by University Student Code of Conduct, the College of Law Honor Code and my rules. You certify compliance with all applicable rules by submitting your examination for grading. Violations of any applicable rule(s), should be reported to me or to pertinent authorities preferably before or during the examination. Serious violations of these rules shall result in a failing grade and in my referring the matter to the Honor Committee or to pertinent college or university conduct authorities. Less serious violations may result in a reduction in your final grade.

Read the Entire Exam. PLEASE READ THE ENTIRE EXAM BEFORE YOU BEGIN TO ANSWER ANY QUESTIONS. The exam consists of twelve (12) True or False questions (Part I), for forty percent (40%) of the exam grade; and one (1) essay problem, for sixty percent (60%) of the exam grade. Please take these weights into account when you design your answer schedule.

Limited Space. All students must answer the True/False section using the Scantron system administered by the Office of Student Affairs. You must answer the essay question in the space provided in the separate answer packet for handwriting or typing, or with your laptop using the ExamSoft template. Do not use bluebooks. While I encourage you to outline the answers before you start to write, do not include scratch paper or any additional material with your completed exam.

Handwriting the Essay Answer. You may opt to handwrite your essay answer using a packet printed for that purpose. You are limited to ONE packet as your writing limit. If you wish me to ignore any part of your answer, simply cross it out and I will ignore it. If you should run out of space because of cross-outs, you may use an equivalent amount of space on the back of the page in the answer packet. ExamSoft users would of course simply delete.

No Pencils. If you handwrite any part of your answer, you must do so using a permanent ink pen, subject to a 10% penalty. Does not apply to Scantron forms, of course.

Do Not Un-staple Pages. Do not take the exam apart (except that you may take the answer packet apart if you are using a typewriter). If you do, you MUST RE-STAPLE IT. You must also turn in every page of the examination, not just the ones that you use.

Scratch Paper. You may use blank scratch paper to outline your answers and take notes during the examination. Scratch paper will not be collected.

Electronic Exam Taking. You may take the examination electronically, using specialized software that ensures that you can only use your laptop to write your essay answer. All laptops must log-into the ExamSoft system at the start of the examination and remain in the ExamSoft answer only environment for the entire examination period. Only the essay section may be answered electronically. For the other sections, you must write your answer on the exam itself.

Essay Character Limit: 18,000. Answer space shall be limited to 1800 characters (including spaces and carriage returns) for each blank page in the examination. That is enough for 24 lines of double-spaced text in courier type, size 11 for each page. Since I provide 10 blank pages, the character limit is: 1800 x 10 = 18,000 characters. Each student is responsible for keeping track of answer length. The ExamSoft window constantly displays character count at the bottom of the screen. You may also use the length command to check character length. The penalty for exceeding the character limit will be a deduction from your essay score of a percentage equal to the percentage by which you exceeded the character limit. I will also not award points for discussion beyond the length limit.

NO OTHER ELECTRONIC DEVICE MAY BE USED DURING THE EXAM. Other than your laptop, you may not use any other electronic device during the exam. That includes, but is not limited to, cellphones, tablets, music players, headsets, smart-watches, etc.

Instructed Result. You must reach and fully justify the instructed result in order to earn any credit for your answer. “Dissents” fail.

Exam Review. Exam review will start after I post the feedback memorandum on the course website on Thursday, February 7, 2019. Instructions for the review process and the dates when I will be available for it will be included in the memorandum.

You must stop work four (4) hours after THE SIGNAL TO START. Completed examinations must be turned in to The office of student Affairs.

Exam Accommodation. If you have received an accommodation that requires variation from these instructions, you must follow the instructions provided by the Office of Student Affairs. Exam accommodations must be handled through the Office of Student Affairs in order to maintain the anonymity of the grading process as well as to ensure that university policies and resources are properly applied to each individual situation. While the Office of Student Affairs may consult with me as necessary and as they deem advisable, we must all ensure that accommodation policies are properly and fully applied while at the same time the anonymous grading of the exam mandated by Levin College of Law rules is maintained.

GOOD LUCK!

GENERAL INSTRUCTIONS FOR PART I

Select the best answer to the question presented. In this section, do not look for “perfect” answers, just the most correct one among the two alternatives available to you, in light of the question or statement presented, viewed in the context of the federal rules of evidence and related doctrines and caselaw as we discussed them in class. You are bound by the restyled version of the Federal Rules of Evidence that became effective December 1, 2011, as amended.No explanations are required or allowed. Your answer will either be correct or incorrect, there will be no partial credit for incorrect answers. Circle the appropriate word or letter that you select as your response.

Do not look for issues that are not relevant to answering the question. The question asked determines the issues raised, read it carefully and answer the question I asked, with the best possible response among the alternatives given.

Applicable Rules. Assume that the applicable rules of evidence are the Federal Rules of Evidence in the restyled form that became effective December 1, 2011, as amended, together with the applicable common law, statutory, and constitutional rules, doctrines, and caselaw as you studied them in your Fall 2018 Evidence course.

PART I: TRUE OR FALSE (40%)

In this section, you must select either “True” or “False.” The statement, as drafted, when read in the context of a Federal Trial, is either True or False.

Federal Rule of Evidence 801(c) reads: “ ‘Hearsay’ means a statement that: (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement.” When ruling that a statement is not offered to prove the truth of the matter asserted, courts always use one of the six nonhearsay non-truth use categories discussed in class, namely: (1) impeachment, (2) verbal acts (or parts of acts), (3) effect on listener or reader, (4) verbal markers or objects, (5) circumstantial evidence of state or mind, and (6) circumstantial evidence of memory or belief. Accordingly, judicial opinions would never instead use phrases such as “offered to provide context” or “offered for the limited purpose of explaining why a government investigation was undertaken” to explain their ruling that a statement is nonhearsay on a non-truth offer rationale under Rule 801(c).

True False
In a criminal prosecution for sexual assault, defendant Joseph is pursuing a consent defense. Joseph offers the testimony of witness Matthew that victim Mary “is sexually very active” and “known as an easy mark.” The prosecution objects to this testimony. The court should overrule the objection.

True False
During civil commitment proceedings against University of Michigan junior James Hurt, his parents, who are trying to institutionalize her in a psychiatric treatment facility, present testimony that she told several people the previous week: “I am Tebow, Tim Tebow, Heisman Trophy Winner.” Given the definition of hearsay of Federal Rule of Evidence 801(a), (b) and (c), this evidence is not hearsay.

True False
After certain evidence is found to be relevant, the rules allow it to be excluded when its probative value is substantially outweighed by a danger of confusing the issues.

True False
In a criminal appeal based on an evidentiary question, the court finds that the claimed error was not properly preserved for appeal by the defendant. The appellate court also finds that the trial court erred in admitting the now-challenged evidence against the defendant. Under the Federal Rules of Evidence, the appellate court does not have the authority to reverse the conviction.

True False
In a civil trial for damages resulting from an automobile collision, the defendant offers the testimony of an eyewitness who will identify the plaintiff, Juan Valdez, as the driver of the car that ran a red light at an intersection and caused the accident that led to this suit. The plaintiff objects. At the bench, so that the jurors cannot hear what is happening, the court rules that the evidence is relevant to the case and prejudicial for the plaintiff Juan Valdez because it makes it more likely than it would be without that evidence that Valdez’s conduct was the proximate cause of the accident. The court cannot exclude this evidence under Rule 403 based on this finding of prejudice.

True False
In a criminal prosecution for sexual assault, evidence of the defendant’s commission of any other sexual assault cannot be admitted to prove that on a particular occasion the defendant acted in accordance with the character or trait suggested by the other offense(s).

True False
The law of evidence generally proceeds on the basis that the jury will follow the court’s instructions where those instructions are clear and the circumstances are such that the jury can reasonably be expected to follow them.

True False
During a criminal trial for fraud, the state calls Robert James. He is defendant Mary Peppard’s ex-boyfriend and he answered the door at the time of her arrest. The state offers his testimony that when Peppard saw the police approaching, she first ran to the back door, then hid in a closet after discovering a uniformed police officer standing guard in the alley. Peppard objects, arguing that proof of her behavior at the time of arrest is irrelevant. In a sidebar conference, her lawyer points out that Peppard’s arrest was based on an outstanding failure to appear warrant, issued one year earlier on unrelated charges. The court is not allowed to admit this evidence to prove guilt of the crime charged.  

True False
Defendant, Dr. Buckaroo Banzai, famed law professor, neurosurgeon, particle physicist, and rock-star, is charged with criminal destruction of property. Dr. John Whorfin is called as a witness by the defense in this criminal trial, with the expectation that he will testify that he, not the defendant, destroyed the valuable, highly-modified Ford F-150, by setting it on fire. Dr. Whorfin is a resident of the New Jersey Hospital for the Criminally Insane at Grover’s Mill. Prior to this offer of testimony, in separate proceedings alleging that he had murdered a hospital orderly during an escape attempt, Whorfin was found to be criminally insane and incompetent to stand trial. Among certain other personal quirks, he has publicly stated that he is a red Lectroid from Planet Ten and that he must return to the Eighth Dimension to rescue his army, in order to conquer the universe, starting with Planet Ten. The government objects that Whorfin is incompetent to testify. The court may find Whorfin competent to testify.

True False
Following the loss in the SEC Championship Game, Georgia fan Bill drowns his sorrows at several Atlanta bars as he walks back to his car after the game. He then meets his pal John in the parking lot and gives him a ride back to their hotel in Buckhead. Later that night they are involved in an accident that seriously injures both John and Bill. John sues driver Bill to recover damages. During the defense case in chief Bill offers, as proof that John assumed the risk of an accident on account of an impaired driver, his testimony that “I told John before he got in the car that I really should not have had those three martinis half an hour ago.” Given the definition of hearsay of Rule 801(a), (b) and (c), this evidence is not hearsay.

True False
Jordan Belfort enters into a settlement of a civil action filed by the Attorney General for the State of Florida claiming that he violated state securities regulations when he defrauded investors while acting as their stockbroker. Belfort agrees to repay each investor 50% of their original investment and to refrain from doing business in the State of Florida for a period of no less than fifteen years. The state then agrees to dismiss its suit. During the negotiations, Mr. Belfort admits that he used the invested funds to cover personal expenses. The U.S. Government later indicts Mr. Belfort for securities fraud and is prosecuting him. At trial, the government seeks to introduce Belfort’s admission about using the funds for personal expenses. Under Federal Rule of Evidence 408 this evidence is not admissible because of the privilege created by that rule.

True False

PART II: ESSAY PROBLEM (60%)

GENERAL INSTRUCTIONS FOR PART II

Do not assume any facts not given to you. While you are expected to draw reasonable conclusions from the facts given, you should not assume facts. In this section of the exam, “missing facts” suggest three possibilities: (1) you need to read the question again, i.e., “it’s in there somewhere,” (2) I made a mistake and you may need to alert me to it (if you are convinced that this is what is going on, do not be afraid to ask the question), or (3) you need to indicate that you need to establish certain facts in order to provide a complete opinion. In this section of the exam, identifying missing facts that are necessary to a complete resolution of the issue may be precisely what you need to do in order to provide a proper response.
            Do not look for issues that are not relevant to completing the exercise as instructed. The instructions determine the pertinent issues and how they must be handled in a carefully-crafted essay. Read them carefully and write accordingly. Evidence is a broad and complex course, I have crafted the issues narrowly, do not waste your time covering issues that the fact-pattern and your instructions as to the mandated result do not require you to address or resolve. No credit will be awarded for discussion of matters not relevant to the resolution of the problem.
            Applicable Rules. Assume that the applicable rules of evidence are the Federal Rules of Evidence in their restyled form that became effective December 1, 2011, as amended, together with the applicable common law, statutory, and constitutional rules, doctrines, and caselaw as you studied them in your Fall 2018 Evidence course. Any additional sources of law will be expressly noted in the exam fact-pattern and accompanying statutory supplement, if any.
            Citations. Since this is an open-rule exam, citation should be made to the appropriate rule, especially the Federal Rules of Evidence, statutory or Constitutional provision, etc. Case citations will be judged on a “close-enough” basis. Please keep in mind that my annotated versions of the rules are helpful shorthand references.
     Instructed Result. You must reach and fully justify the instructed result in order to earn any credit for your answer. “Dissents” fail.
     Limited Space. Please keep in mind that you are bound by the character length limit in ExamSoft, and to the space provided in the hand- or typewriting packet.
     No Pencils. If you handwrite any part of your answer, you must do so using a permanent ink pen, subject to a 10% penalty.
     No Abbreviations or Acronyms. You may not use any abbreviations or acronyms other than FRE or TOMA in your essay. You must use the proper names of the persons mentioned in the fact-patter, you may not substitute titles such as “defendant” or “appellant” for the proper names. You may use just the last name to refer to teach person.

Raymond v. State

Court of Appeal of Florida, Fifth District
Appeal from the Circuit Court for Citrus County, Richard A. Howard, Judge.

Facts and Procedural History on Appeal

Christopher M. Raymond appeals his conviction following a jury trial for attempted second-degree murder by discharging a firearm. Raymond was convicted under sections 784.04(2), 777.04(1), 775.087(1), 775.087(2)(a)1., and 775.087(2)(a)2., Florida Statutes (2017). However, the correct statute regarding second-degree murder is section 782.04(2), not section 784.04(2), which has been renumbered to section 784.021 and pertains to aggravated assault. See, e.g., Williams v. State, 244 So. 3d 1200, 1203-04 (Fla. 1st DCA 2018) (discussing second-degree murder conviction pursuant to section 782.04(2)).

The State alleged that Raymond attempted to kill his mother, Nicole Raymond, by firing a shotgun over her head when she was in her bedroom. Mrs. Raymond did not testify at the trial. To prove its case, the State heavily relied on the 911 phone call Mrs. Raymond made after the shooting as well as her statements to the responding officers. The State also presented inculpatory statements Raymond made to officers and photographic evidence of the shooting.

Casey Biuk, a 911 communications officer with the Citrus County Sheriff’s call center, testified that on the night of the incident, she answered a call from Mrs. Raymond, who sounded distraught. Mrs. Raymond was crying and relayed that her son had just shot at her in her bedroom. Mrs. Raymond told Officer Biuk that “he’s going to kill me . . . hurry . . . please hurry.” The State played a recording of Mrs. Raymond’s call for the jury.
The State Attorney wanted jurors to signal if they did not understand something on the recording. The defense objected that “the recording should speak for itself.” The prosecutor responded: “Well, it doesn’t need to be translated. [But] [b]ecause she’s whispering, some of it can be hard to understand.” The court ruled that the recording would have to speak for itself. [Tr. 35].
Officer Biuk explained that after gathering some basic information, she sends a dispatch message that is visible on the computer screens in the deputies’ patrol vehicles. The arrest affidavit for the case, which is part of the case file, indicates that Citrus County Deputy Christopher Knight was dispatched to the scene at 1:58 a.m. and arrived there a few minutes thereafter at the same time as two other deputies who were in a separate patrol car. The recording of the 911 call, which is approximately fifteen (15) minutes long, is transcribed in the trial transcript. It indicates that Mrs. Raymond was on the line with officer Biuk when the responding deputies arrived at her home, whereupon Officer Biuk asked Mrs. Raymond to meet the deputies who were waiting outside her house.

Deputy Knight, the responding officer, testified that when he entered the residence, Mrs. Raymond was alone in her bedroom, crying hysterically and shaking uncontrollably. Upon Deputy Knight’s questioning, Mrs. Raymond detailed the evening’s events that led to Raymond firing the weapon. Deputy Knight observed a spent shotgun shell at the foot of the bed as well as evidence on the pillow and wall consistent with the firing of a shotgun.
Deputy Knight testified at trial that “When I very first made contact with the victim, she was highly upset, she looked scared, she was crying hysterically and shaking her hands uncontrollably.” The prosecutor then asked “And when you first got on scene, did she tell you what happened?”. The testimony is then interrupted while the court addresses the defense hearsay and confrontation objections by overruling them. Deputy Knight then continued: “The very first thing she told me [was] that her ears were ringing due to a shotgun blast.” [Tr. 52]. Deputy Knight then testified:

She stated that at approximately 1:00 o’clock in the morning she was lying in bed watching TV, and she heard the front door to her residence sound like it was being opened. So she got out of bed, walked into the living room, and that's when she seen her son, the defendant, Mr. Christopher Raymond, sitting on the couch.
After that she told him that he needed to be quiet because she was trying to go to sleep. At which time she walked back into her bedroom and continued watching TV.
Once she walked into her bedroom and continued watching TV, she stated her son had followed her into her bedroom, sat down at the end of her bed and was drinking a beer. She told him to leave. At which time he set his beer can on top of the night stand or the TV stand and walked out of the bedroom door, closing it behind him.
After that she --she told me that about 30 seconds later the front-- or her bedroom door had opened and her son was standing at the foot of her bed holding a shotgun directly at her face. She told me before she could say anything, he pulled the trigger and a round went off directly above her head.
She stated at that time she pleaded for him not to do this, that she loved him. And that’s when he racked [opened the action of] the shotgun [and expelled the spent shell] and ran out of the house with the gun.
[The Assistant State Attorney then asks: “did you see any evidence that was consistent with what she told you happened?” and the Deputy responds:]
I did. As soon as I walked in the bedroom, I immediately noticed a purple shotgun shell casing sitting at the foot of the bed on the ground. While I was looking around the room, I noticed that her pillow, the top corner of it was shredded or torn. And behind that was a two-inch circular hole in the wall that was consistent with a shotgun round.
[Tr. 53-54, most questions have been edited out for ease of reading].

Deputy Fernandez, who also responded to the scene, testified that upon making contact with Mrs. Raymond, she stated that she had just been shot at by her son and that he fled to his grandmother’s house nearby. Deputy Fernandez subsequently approached Raymond at his grandmother’s house and testified that as Raymond was exiting the house, he stated, “The devil is going to give her hers . . . she’s going to get hers.” The deputies recovered a [single shot, single barrel, 16-gauge Stevens] shotgun from the grandmother’s house and a hooded sweatshirt containing four unspent shotgun shells consistent with the shell recovered from Mrs. Raymond’s bedroom.
Deputy Fernandez testified on direct:

A. When I arrived on the scene, uh, I was met with an elderly lady. Uh, she was in complete shock and confusion, uh, shaken, upset. And she had told us that she had been shot at by her son.
Q. Now when you say she was --was shaken and upset, describe for the jury exactly what it was about her or about her demeanor that led you to believe that.
A. Uh, she was very loud, uh, very nervous, you could hear the crack in her voice. She was upset, she wascrying hysterically. Uh, she was pretty much defenseless and in shock.
[Tr. 66.]

Defense counsel then renewed their hearsay and confrontation clause objections regarding Mrs. Raymond’s statements. The court overruled them, and Deputy Fernandez went to testify that the victim told them her son was probably at his Grandmother’s house nearby. Deputy Fernandez and a colleague then went to find the defendant.

The State’s last witness, Detective Ricci, testified regarding an interview of Raymond conducted upon his arrest. During the interview, Raymond stated that on the night of the shooting, he had been drinking alcohol in the home, then entered his mother’s bedroom, fired a shot, and left the residence. Raymond offered no explanation for his actions but expressed remorse for what he had done. The jury heard a recording of the interview.
The list of exhibits admitted at trial, as numbered for the record and certified by the court clerk were: (1) CD recording of 911 call; (2) photos of the crime scene (showing the damaged pillow, headboard, and the hole in the wall as well as related debris as described in the testimony); (3) one (1) spent purple 16-gauge shotgun shell; (4) photo of a shotgun: (5) a 16-gauge shotgun; (6) four (4) purple 16-gauge shotgun live rounds; (7) CD recording of interview of the defendant.

The evidence established that Raymond fired one shot, at close range, from a shotgun. Unlike a single projectile fired from a rifle, a shotgun shell is loaded with multiple projectiles which spread after being fired. Despite his close proximity, not one projectile struck Mrs. Raymond. The physical evidence reflected that Raymond opened the shotgun and expelled the shell, leaving it at the scene. The evidence also established that Raymond possessed four additional unspent shells but had made no effort to reload and fire a second shot, notwithstanding the State’s theory that Raymond attempted to kill his mother. The defense emphasized the lack of injury to Mrs. Raymond and that Christopher Raymond had made no effort to reload in their closing arguments.

On appeal, Raymond raises two issues …: the trial court erred in admitting Mrs. Raymond’s 911 call with Officer Biuk and the testimony of Deputies Knight and Fernandez regarding statements made by Mrs. Raymond to them over his attorney’s hearsay and Confrontation Clause objections. In overruling the defense objections, the trial court accepted the state’s argument that the statements by Mrs. Raymond to the 911 operator and to the responding deputies were “excited utterances” and that they were not barred by the Confrontation Clause.

Statutory Provisions

Fla. Statute 777.04(1)
777.04 Attempts, solicitation, and conspiracy.—
(1) A person who attempts to commit an offense prohibited by law and in such attempt does any act toward the commission of such offense, but fails in the perpetration or is intercepted or prevented in the execution thereof, commits the offense of criminal attempt, ranked for purposes of sentencing as provided in subsection (4). Criminal attempt includes the act of an adult who, with intent to commit an offense prohibited by law, allures, seduces, coaxes, or induces a child under the age of 12 to engage in an offense prohibited by law.

Fla. Statute 775.087(1); Fla. Statute 775.087(2)(a)1; Fla. Statute 775.087(2)(a)2.

775.087 Possession or use of weapon; aggravated battery; felony reclassification; minimum sentence.—
(1) Unless otherwise provided by law, whenever a person is charged with a felony, except a felony in which the use of a weapon or firearm is an essential element, and during the commission of such felony the defendant carries, displays, uses, threatens to use, or attempts to use any weapon or firearm, or during the commission of such felony the defendant commits an aggravated battery, the felony for which the person is charged shall be reclassified as follows:
(a) In the case of a felony of the first degree, to a life felony.
(b) In the case of a felony of the second degree, to a felony of the first degree.
(c) In the case of a felony of the third degree, to a felony of the second degree.
For purposes of sentencing under chapter 921 and determining incentive gain-time eligibility under chapter 944, a felony offense which is reclassified under this section is ranked one level above the ranking under s. 921.0022 or s. 921.0023 of the felony offense committed.
(2)(a)1. Any person who is convicted of a felony or an attempt to commit a felony, regardless of whether the use of a weapon is an element of the felony, and the conviction was for:
a. Murder;
b. Sexual battery;
c. Robbery;
d. Burglary;
e. Arson;
f. Aggravated battery;
g. Kidnapping;
h. Escape;
i. Aircraft piracy;
j. Aggravated child abuse;
k. Aggravated abuse of an elderly person or disabled adult;
l. Unlawful throwing, placing, or discharging of a destructive device or bomb;
m. Carjacking;
n. Home-invasion robbery;
o. Aggravated stalking;
p. Trafficking in cannabis, trafficking in cocaine, capital importation of cocaine, trafficking in illegal drugs, capital importation of illegal drugs, trafficking in phencyclidine, capital importation of phencyclidine, trafficking in methaqualone, capital importation of methaqualone, trafficking in amphetamine, capital importation of amphetamine, trafficking in flunitrazepam, trafficking in gamma-hydroxybutyric acid (GHB), trafficking in 1,4-Butanediol, trafficking in Phenethylamines, or other violation of s. 893.135(1); or
q. Possession of a firearm by a felon
and during the commission of the offense, such person actually possessed a “firearm” or “destructive device” as those terms are defined in s. 790.001, shall be sentenced to a minimum term of imprisonment of 10 years, except that a person who is convicted for possession of a firearm by a felon or burglary of a conveyance shall be sentenced to a minimum term of imprisonment of 3 years if such person possessed a “firearm” or “destructive device” during the commission of the offense. However, if an offender who is convicted of the offense of possession of a firearm by a felon has a previous conviction of committing or attempting to commit a felony listed in s. 775.084(1)(b)1. and actually possessed a firearm or destructive device during the commission of the prior felony, the offender shall be sentenced to a minimum term of imprisonment of 10 years.
2. Any person who is convicted of a felony or an attempt to commit a felony listed in sub-subparagraphs (a)1.a.-p., regardless of whether the use of a weapon is an element of the felony, and during the course of the commission of the felony such person discharged a “firearm” or “destructive device” as defined in s. 790.001 shall be sentenced to a minimum term of imprisonment of 20 years.

Fla. Statute 784.04(2)
(2) The unlawful killing of a human being, when perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual, is murder in the second degree and constitutes a felony of the first degree, punishable by imprisonment for a term of years not exceeding life or as provided in s. 775.082, s. 775.083, or s. 775.084.

The court of appeals summarized important jury instructions thusly:

To establish the second element of attempted second-degree murder, the State was required to prove beyond a reasonable doubt that Raymond committed an act “imminently dangerous to another and demonstrating a depraved mind without regard for human life.” Fla. Std. Jury Instr. (Crim.) 6.4; § 782.04(2), Fla. Stat. (2017). An act is imminently dangerous if “a person of ordinary judgment would know [it] is reasonably certain to kill or do serious bodily injury to another, and [it] is done from ill will, hatred, spite, or an evil intent, and [it] is of such a nature that the act itself indicates an indifference to human life.” Fla. Std. Jury Instr. (Crim.) 6.4.

Instructions for the Answer

You are a law clerk to the Honorable Jay P. Cohen, Chief Judge of the Fifth District Court of Appeal. Judges Wallis and Eisnaugle are the remaining members of the panel. The court will reverse this conviction and order a new trial because the trial court committed constitutional error in admitting the statements made by the victim to the deputies who responded to her home. The panel has agreed to reject the claim that admission of the statements made during the 911 call on both hearsay and constitutional grounds. They agree that the testimony of Deputies Knight and Fernandez regarding statements made by Mrs. Raymond to them also fell within the excited utterances hearsay exception, but that it was constitutional error to admit them. Chief Judge Cohen assigns you to draft a memorandum detailing the panel’s decision, using the substantive law and instructions referenced above, and the Federal Rules of Evidence in their restyled form that became effective December 1, 2011, as amended, together with the applicable common law, statutory, and constitutional rules, doctrines, and caselaw as you studied them in your Fall 2018 Evidence course at his law school alma mater, the Levin College of Law.

You need only address the admissibility of the testimony by Deputies Knight and Fernandez because drafting the discussion regarding the 911 call will be assigned to a different clerk. The other evidence that was admitted at trial should be discussed in your memorandum only to the extent pertinent to the resolution of the issues assigned to you as instructed by the court.

Facts taken and modified for examination purposes from Raymond v. State, 2018 Fla. Appeals Lexis 15549 (November 2018). I used the court file to supplement the opinion with a more developed factual background. I reference the arrest affidavit, the clerk’s certified exhibit list and the trial transcript prepared for the appeal.

University of Florida

Levin College of Law

THE UNIVERSITY of FLORIDA