Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D19-3153 _____________________________ TERRY LOPEZ BOLDRIDGE, Appellant, v. STATE OF FLORIDA, Appellee. _____________________________ On appeal from the Circuit Court for Okaloosa County. Michael A. Flowers, Judge. February 4, 2021 PER CURIAM. Terry Lopez Boldridge appeals his convictions for attempted second degree murder, improper exhibition of a firearm, and shooting into an occupied vehicle. He argues that the trial court erred in four respects. We affirm, but write to address his claim that the trial court admitted evidence of the victim’s conversation with the police in violation of the Confrontation Clause. Boldridge shot the victim multiple times while the victim was in his car outside of Boldridge’s apartment complex. The victim drove away after being shot. When the police arrived at the complex, they arrested Boldridge. One of the officers, Marlar, then drove down the street to where the victim was being helped by other officers. An officer asked, “Can you tell me what happened?” Marlar assured the victim that he was going to be okay and that he was not going to die. He then started asking the victim questions, including his name and where he lived. There was a pause in the conversation while other first responders worked on the victim, and then the victim began talking again. Marlar, apparently to distract the victim from his fear, asked about the house he was planning to buy. Instead of answering, the victim said what sounded like, “The guy said I told another lady that he was screwing a girl, her daughter. I didn’t.” The first responders continued to tell the victim that he would be okay and made small talk. Then Marlar asked, “You remember what the guy looked like, partner? What was he wearing, bud?” The victim replied that he was wearing a hoodie. Prior to trial, Boldridge argued that the bodycam footage reflecting the foregoing exchange was inadmissible as a Confrontation Clause violation because it was a testimonial statement. The court admitted the statements as excited utterances, concluding that Crawford * did not apply because Crawford did not involve an excited utterance. The court noted that the victim was “not being interrogated”; rather, he was making a statement “under the duress, stress, anxiety, all of the things contemplated in [the excited utterance exception to hearsay].” The victim did not testify, and Boldridge never had an opportunity to cross-examine him. Boldridge did not deny shooting the victim; instead, he claimed that he had acted in self-defense. In his police interview, he mentioned being angry that the victim had told a woman that her missing daughter had been with him. He said that the victim had hit him and asked him where “the money” was. He also said that when the victim went to his car, he reached for something, and that was when Boldridge shot him. And when asked whether he thought he had taken it too far, Boldridge admitted, “Yeah, I did. I shouldn’t have never shot at him again, you know what I’m saying? I ain’t going to say the first time was, you know, but the dude tried to do something to me and came in my house, you know * Crawford v. Washington, 541 U.S. 36, 68 (2004). 2 what I’m saying?” Video of this interview was also admitted at trial. Boldridge correctly argues that admission of evidence of the victim’s conversation with the police violated his Sixth Amendment right to be confronted with the witnesses against him. However, we find that the improper admission of evidence was harmless. The Confrontation Clause prohibits admission of out-of-court testimonial evidence unless the witness is unavailable and the defendant has previously had an opportunity to cross-examine him. Crawford, 541 U.S. at 68. Here, the victim’s statements were testimonial, under the standards set out by the Supreme Court: Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. Davis v. Washington, 547 U.S. 813, 822 (2006). It is clear that the victim here was being interrogated as that term is used in Davis. The circumstances objectively indicate that there was no ongoing emergency; the threat had ended when the police arrested Boldridge before talking to the victim. Multiple questions by Marlar indicate that the primary purpose was to establish or prove past events potentially relevant to later criminal prosecution. That the questions also assured the victim that he would be okay and were unrelated to the incident does not negate this. The victim’s statements were therefore testimonial. See also Raymond v. State, 257 So. 3d 624, 628 (Fla. 5th DCA 2018) (holding that admission of statements made by a non-testifying victim to police officers when they arrived at her house after the encounter with the defendant violated the right to confrontation because the statements “explain[ed] in detail the events leading up to the incident, occurred after the threat ceased and were the result of a 3 police interrogation”). Even if the statements were not testimonial under Davis, they were also testimonial because they “‘were made under circumstances which would lead an objective witness reasonably to believe that the statement[s] would be available for use at a later trial.’” Lopez v. State, 888 So. 2d 693, 698 (Fla. 1st DCA 2004) (quoting Crawford, 541 U.S. at 52). Because these statements were testimonial and Boldridge had no opportunity to cross-examine the victim, the statements were admitted in violation of the Confrontation Clause. Even if the trial court was correct that the statements were excited utterances and therefore an exception to the rule against hearsay—which we do not decide—they were still inadmissible. Evidence that constitutes a hearsay exception is still inadmissible if it violates the Confrontation Clause. However, a lower court will not be reversed if the error was harmless. See § 924.33, Fla. Stat. In the context of a constitutional violation, the Florida Supreme Court has applied the following test for harmless error: The test is not a sufficiency-of-the-evidence, a correct result, a not clearly wrong, a substantial evidence, a more probable than not, a clear and convincing, or even an overwhelming evidence test. Harmless error is not a device for the appellate court to substitute itself for the trier-of-fact by simply weighing the evidence. The focus is on the effect of the error on the trier-of-fact. The question is whether there is a reasonable possibility that the error affected the verdict. The burden to show the error was harmless must remain on the state. If the appellate court cannot say beyond a reasonable doubt that the error did not affect the verdict, then the error is by definition harmful. State v. DiGuilio, 491 So. 2d 1129, 1139 (Fla. 1986). In this case, there is no reasonable possibility that the error affected the verdict. Because the identity of the shooter was not in doubt, the victim’s statement that the perpetrator was wearing a hoodie was irrelevant to the jury’s decision. Moreover, Boldridge admitted that he had gone too far and that he should never have shot again, 4 even if he believed the first time was justified. If not for this admission, the victim’s statement that Boldridge had “said I told another lady that he was screwing a girl, her daughter” might have undermined Boldridge’s self-defense claim. Because of Boldridge’s admission, however, we find it beyond a reasonable doubt that admitting this statement did not affect the verdict. AFFIRMED. BILBREY, WINOKUR, and TANENBAUM, JJ., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Jessica J. Yeary, Public Defender, and M. J. Lord, Assistant Public Defender, Tallahassee, for Appellant. Ashley Moody, Attorney General, and Virginia Chester Harris, Assistant Attorney General, Tallahassee, for Appellee. 5