discussing common law rule of completeness for conversations
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The opinion
Supreme Court of Florida
____________
No. SC17-472
____________
GABRIEL BRIAN NOCK,
Petitioner,
vs.
STATE OF FLORIDA,
Respondent.
November 1, 2018
CANADY, C.J.
In this case, we consider an issue regarding the rule of completeness codified
in the Florida Evidence Code and a related issue concerning the rule of evidence
authorizing the impeachment of hearsay declarants. This Court granted
jurisdiction to review the decision of the Fourth District Court of Appeal in Nock v.
State, 211 So. 3d 321 (Fla. 4th DCA 2017), in which the district court certified
conflict with the Second District’s decision in Foster v. State, 182 So. 3d 3 (Fla. 2d
DCA 2015), on the latter issue. We have jurisdiction. See art. V, § 3(b)(4), Fla.
Const.
Specifically, two issues are presented on review: (1) whether a defendant is
permitted to require the State under section 90.108(1), Florida Statutes (2014)—the
statutory rule of completeness—to introduce into evidence the entire video
recording of the defendant’s statement to police when the State has questioned a
detective on direct examination concerning inculpatory statements of the defendant
without introducing any portion of the recording of the defendant’s statement and
(2) whether the State is permitted to impeach a defendant under section 90.806(1),
Florida Statutes (2014)—which authorizes attacking the credibility of a hearsay
declarant—when the defendant elicits from the detective on cross-examination
exculpatory portions of the defendant’s statement to the police.
We hold that section 90.108(1) does not apply unless a written or recorded
statement is introduced into evidence. We also hold that a defendant is subject to
impeachment under section 90.806(1) whenever the defendant introduces through
cross-examination hearsay exculpatory statements of the defendant. We approve
the decision of the Fourth District in Nock, and we disapprove the decision of the
Second District in Foster on the conflict issue.
BACKGROUND
In the case on review, “[a] jury found [Nock] guilty of first degree murder
while engaged in the commission of a robbery and tampering with physical
evidence.” Nock, 211 So. 3d at 323. The trial court entered judgment in
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accordance with the guilty verdicts and “sentenced [Nock] to life imprisonment
with a concurrent term of 120 months.” Id. On appeal from the conviction and
sentence, the Fourth District set out the facts of the crimes:
The evidence revealed that the victim, a sixty[-]eight-year-old
retired man, took [Nock], a twenty-seven-year-old man, home with
him from the beach. When the victim did not show up later that day
for a planned dinner, the victim’s friend went to his house. There, he
discovered the victim lying face down in the kitchen.
A detective arrived at the scene and spoke to witnesses, who
saw the victim eating with a younger man on his back porch earlier
that day. A medical examiner determined the victim had extensive
injuries to his neck consistent with pressure being applied to the area.
He questioned whether it was horseplay or erotic choking, but
determined more force was likely used to cause the victim’s death.
During the investigation, law enforcement discovered videos
showing [Nock] using the victim’s credit card at various Broward
County stores. Surveillance videos showed the victim’s car at
locations where the card was used. [Nock] actually gave his phone
number to a cashier while using the victim’s credit card.
Law enforcement obtained a pen-register/trap and trace order to
access information concerning [Nock’s] cell phone, and an order
specifically authorizing the use of real time cellular site information
(“CSLI”) to track the cell phone. Six days after the victim’s death, a
Broward detective was notified that [Nock’s] cell phone had been
turned on for the first time in three days. The cell phone signal was
tracked to South Beach.
Broward law enforcement traveled to South Beach in unmarked
police cars. Using a still photo of [Nock] from a surveillance video,
they located him. They flagged down a Miami Beach police officer,
who detained [Nock].
When the detective arrived, he introduced himself to [Nock],
who responded by asking whether he was being approached about the
car or the warrant out of Delaware. The detective observed [Nock] in
possession of a tote bag with the victim’s initials on it. The detective
saw the victim’s business cards, credit cards, car keys, and a lap top
computer inside the tote bag. He confirmed [Nock’s] cell phone as
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the one they were tracking and noted [Nock’s] resemblance to the still
photo.
Broward law enforcement then took [Nock] to their office
where he gave a Mirandized statement to the detective. Neither party
introduced the video recording of the interrogation into evidence.
Instead, the State called the detective to testify about [Nock’s]
statement.
On direct examination, the detective testified that [Nock]
initially stated he did not know the victim and he had bought all the
items from someone on the beach. [Nock] later acknowledged he
knew the victim. The detective testified: “[Nock] put his head down
and shook his head and said, he wasn’t suppose[d] to die, it wasn’t
suppose[d] to happen this way, and then he began telling me more
details about what had happened.”
[Nock] told the detective that he left the beach with the victim,
who was going to pay him for sex. The victim had a wrestling fetish
and asked [Nock] to engage in “wrestling moves” where he would put
the victim in a headlock until he “tap[ped] out,” indicating that the
move was too forceful. This activity first occurred upstairs in the
victim’s home. [Nock] then took the victim’s wallet and credit cards
before going downstairs.
In the kitchen, [Nock] again put the victim in a headlock, but
this time the victim collapsed. [Nock] claimed the victim never
tapped out. He became scared when he could not wake the victim.
He then poured bleach around the kitchen and living room to cover up
his presence, grabbed whatever items he could, and left in the victim’s
car.
Id. at 322-23 (some alterations in original). The Fourth District also set out the
following relevant information regarding Nock’s trial:
[Prior to trial, Nock] filed a motion [in limine] seeking to
require the State to admit the entire video recording of [Nock’s]
statement into evidence, under the best evidence rule and the
[statutory] rule of completeness. The trial court denied the request,
specifically finding the rule of completeness [contained within section
90.108(1), Florida Statutes (2014),] inapplicable because the State did
not offer the video into evidence. The [trial] court stated that if the
desired portions of the statements were elicited when the defense
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cross-examined the detective, then section 90.806(1), Florida Statutes
(2014), allowed the State to use [Nock’s] prior convictions for
impeachment.
[Nock] later renewed his rule of completeness objection during
the State’s direct examination of the detective; the court denied the
motion. During a sidebar, the State suggested that [Nock] was free to
introduce the video in his portion of the case. Rather than do so, the
defense cross-examined the detective regarding the exculpatory
portions of [Nock’s] statement, which supported his defense of the
victim’s death being an accident.
As a result, the jury was later advised of [Nock’s] “nine prior
convictions of felonies or crimes involving dishonesty.” The trial
court instructed the jury that the prior crimes were not evidence of
guilt and should only be used in assessing [Nock’s] credibility.
Id. at 323.
Nock raised an issue before the Fourth District “concerning the detective’s
testimony regarding [Nock’s] statement” to the police. Id. at 322. In that issue,
Nock argued that “the trial court abused its discretion in denying his motion in
limine and overruling his subsequent objections concerning the introduction of
[Nock’s] entire recorded statement.” Id. at 324. Specifically, Nock argued that:
“(1) the rule of completeness applie[d]” under section 90.108(1) and “(2) the trial
court erred in permitting the State to impeach [Nock’s] credibility with evidence of
his prior felony convictions” under section 90.806(1). Id.
The Fourth District rejected each of Nock’s arguments on appeal concerning
the detective’s testimony regarding Nock’s statement to the police. Id. at 324-25.
As to the first argument, the Fourth District concluded that “the trial court properly
ruled the [statutory] rule of completeness inapplicable” because the State
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“questioned the detective on direct examination about his conversation with
[Nock]” without “introduc[ing] [Nock’s] recorded statement” into evidence. Id. at
324. The Fourth District explained that “the [statutory] rule of completeness does
not apply when the written or recorded statement is not introduced into evidence.”
Id. As to the second argument, the Fourth District concluded that “the [trial] court
correctly permitted the jury to learn of [Nock’s] nine prior felonies and crimes of
dishonesty” because “defense counsel brought out the exculpatory portions of
[Nock’s] statement during cross-examination of the detective.” Id. at 325. The
Fourth District acknowledged that the position advanced by Nock’s second
argument—“that he should not be subjected to impeachment through his prior
felonies just because he cross-examines a witness about his statement”—is
supported by the Second District’s decision in Foster. Id. at 324. “There, the
Second District held [that once the State introduced a portion of the defendant’s
statement into evidence,] the defendant was entitled to have the jury hear the
remainder of his statement without placing his credibility in issue [under section
90.806(1)].” Id. However, the Fourth District concluded that Foster is contrary to
section 90.806(1), precedent of the Fourth District, and this Court’s decisions in
Kaczmar v. State, 104 So. 3d 990 (Fla. 2012), and Huggins v. State, 889 So. 2d 743
(Fla. 2004). Nock, 211 So. 3d at 324-25.
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The Fourth District rejected the remaining issues raised by Nock, affirmed
his conviction and sentence, and certified conflict with Foster. Id. at 323-25.
Analysis
I. Completeness
We first address whether a defendant is permitted to require the State to
introduce the entire video recording of the defendant’s statement to the police into
evidence under section 90.108(1)—the statutory rule of completeness—when the
State questions a detective on direct examination about his conversation with the
defendant without introducing any portion of the recording of the defendant’s
statement into evidence. Although this issue is not the basis of the certified
conflict, we exercise our discretion to address the issue. See, e.g., Cantor v. Davis,
489 So. 2d 18, 20 (Fla. 1986) (“Once this Court has jurisdiction, however, it may,
at its discretion, consider any issue affecting the case.”). The standard of review is
de novo. See D’Angelo v. Fitzmaurice, 863 So. 2d 311, 314 (Fla. 2003).
A. The Common Law Rule of Completeness
The rule of completeness began as a common law rule of evidence. At
common law, the rule of completeness provided that “the opponent, against whom
a part of an utterance has been put in, may in his turn complement it by putting in
the remainder, in order to secure for the tribunal a complete understanding of the
total tenor and effect of the utterance.” Beech Aircraft Corp. v. Rainey, 488 U.S.
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153, 171 (1988) (alteration omitted) (quoting 7 John H. Wigmore, Evidence in
Trials at Common Law § 2113, at 653 (J. Chadbourn rev. 1978)).
The common law version of the rule of completeness permit[ted] the
proponent to prove such part as he desire[d]. At common law, the
opponent c[ould not] force the proponent to broaden the scope of his
questioning of the witness. However, when the proponent turn[ed] the
witness over to the opponent for questioning, the opponent c[ould]
then elicit the other parts relevant to the same topic.
1 Kenneth S. Broun, McCormick on Evidence § 56 (7th ed. 2013) (footnote
omitted).
The origins of the [common law] rule [of completeness] go
back to the sixteenth century and the focus was on different parts of
the same writing or statement. See Barbara E. Bergman & Nancy
Hollander, Wharton’s Criminal Evidence § 4:10 (15th ed. 1997).
Lord Chief Justice Charles Abbott recognized the danger in admitting
only a portion of a conversation in evidence, explaining “one part
taken by itself may bear a very different construction and have a very
different tendency to what would be produced if the whole were
heard, for one part of a conversation will frequently serve to qualify
and to explain the other.” Id. (quoting Thomson v. Austen, 2 Dowl. &
R. 358, 361 (1823)).
A “classic example of the possibilities of distortion” when a
portion of a statement is omitted is where one mentions only the last
phrase of the bible quote, “The fool hath said in his heart, there is no
God.” McCormick on Evidence § 56 (Kenneth S. Broun, et al. eds.,
6th ed. 2006) (citing 7 John H. Wigmore, Evidence in Trials
at Common Law § 2094 (Chadbourn rev. 1978)). Quoting the Bible
as saying “there is no God,” would “be a misleading half-truth
because it divorces the quotation from its context.” Id.
Carter v. State, 226 So. 3d 268, 273-74 (Fla. 4th DCA 2017).
The common law rule of completeness had two purposes: (1) to ensure “that
the court not be misled because portions of a statement are taken out of context”
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and (2) to avoid “the danger that an out-of-context statement may create such
prejudice that it is impossible to repair by a subsequent presentation of additional
material.” Beech Aircraft Corp., 488 U.S. at 171 n.14 (emphasis omitted); see
United States v. Burns, 162 F.3d 840, 853 (5th Cir. 1998). It also had two
limitations: (1) that the additional portions of the statement be “relevant” to an
issue in the case and (2) that the additional portions of the statement be
“necessary” to “qualify or explain the already introduced evidence allegedly taken
out of context.” United States v. Sutton, 801 F.2d 1346, 1369 (D.C. Cir. 1986); see
United States v. McCorkle, 511 F.2d 482, 486-87 (7th Cir. 1975) (en banc).
Florida’s common law rule of completeness applied not only to written and
recorded statements but also to testimony about conversations and oral statements.
See, e.g., Morey v. State, 72 So. 490, 492-93 (Fla. 1916) (applying the common
law rule of completeness to testimony about oral statements made by the
defendant); Thalheim v. State, 20 So. 938, 946-47 (Fla. 1896) (applying the
common law rule of completeness to testimony about a conversation with the
defendant). In particular, Florida’s common law rule of completeness applied to
testimony about conversations and oral statements “when the state . . . offered
evidence of inculpatory statements made by the defendant, and the defendant, on
cross-examination, s[ought] to show other exculpatory statements, or statements
deemed exculpatory, made in the same conversation, in reference to the same
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subject-matter.” Thalheim, 20 So. at 947 (emphasis added); accord Morey, 72 So.
at 493. In such cases, the “general rule” was that
the defendant [was] entitled to have before the jury all that was said
upon the subject upon the particular occasion, whether prejudicial or
beneficial to him. The state having opened the door by proving a part
of the conversation, it cannot close it upon the defendant, so that he
cannot offer [on cross-examination] the other part of the conversation
which relates to the same subject-matter. The whole conversation
should be before the jury, and they should determine what weight and
effect should be given to the whole conversation.
Thalheim, 20 So. at 947; accord Morey, 72 So. at 493; see also Bennett v. State,
118 So. 18, 19 (Fla. 1928) (“The rule as to admissions in general is that the whole
of the statement containing the admission is to be received together.”). By
requiring defendants to wait until cross-examination to elicit additional portions of
conversations and oral statements, Florida’s common law rule of completeness
accounted for the “practical problem[s]” associated with contemporaneously
applying the rule of completeness to testimony on direct examination about
conversations and oral statements. See § 90.108, Fla. Stat. Ann. (2011) (Law
Revision Council Note). These “practical problem[s]” primarily concerned the
difficulty of trying to determine, in the middle of a witness examination, the
nature, scope, and content of a conversation or oral statement allegedly part of or
related to the witness’s testimony. See id.
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B. The Statutory Rule of Completeness
In 1976, the Legislature enacted the Florida Evidence Code. See ch. 76-237,
Laws of Fla. (codified in ch. 90, Fla. Stat. (Supp. 1976)). The Florida Evidence
Code “replace[d] and supersede[d] existing statutory or common law in conflict
with its provisions.” § 90.102, Fla. Stat. (Supp. 1976); see, e.g., Sikes v. Seaboard
Coast Line R. Co., 429 So. 2d 1216, 1222 (Fla. 1st DCA 1983). This Court
adopted the provisions of the Florida Evidence Code to the extent that they were
procedural. In re Fla. Evidence Code, 372 So. 2d 1369, 1369 (Fla. 1979); accord
In re Amend. of Fla. Evidence Code, 404 So. 2d 743, 743 (Fla. 1981).
“The [statutory] rule of completeness is codified in section 90.108” of the
Florida Evidence Code. Christopher v. State, 583 So. 2d 642, 645 (Fla. 1991).
The “purpose” of section 90.108(1) is “to avoid the potential for creating
misleading impressions by taking statements out of context.” Larzelere v. State,
676 So. 2d 394, 401 (Fla. 1996). Section 90.108(1) has not been substantially
altered since it was enacted in 1976 and amended in 1978. Section 90.108(1)
provides:
When a writing or recorded statement or part thereof is introduced by
a party, an adverse party may require him or her at that time to
introduce any other part or any other writing or recorded statement
that in fairness ought to be considered contemporaneously. An
adverse party is not bound by evidence introduced under this section.
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§ 90.108(1), Fla. Stat. (2014) (emphasis added). The 1976 Law Revision Council
Note to section 90.108(1) specifically comments:
This section does not apply to conversations but is limited to
writings and recorded statements because of the practical problem
involved in determining the contents of a conversation and whether
the remainder of it is on the same subject matter. These questions are
often not readily answered without undue consumption of time.
Therefore, remaining portions of conversations are best left to be
developed on cross-examination or as a part of a party’s own case.
This treatment of conversations is in accord with Morey v.
State, 72 Fla. 45, 72 So. 490 (1916), where in a criminal prosecution,
when the state offered evidence of inculpatory statements made by the
defendant, the court found that the defendant had the right to have
placed before the jury, by means of cross-examination, the entire
conversation or all statements made by the defendant at the same time
and relating to the same subject matter, whether such other statements
or the remainder of the conversation are exculpatory in nature.
§ 90.108, Fla. Stat. Ann. (2011) (Law Revision Council Note); see also
Christopher, 583 So. 2d at 646 (quoting § 90.108(1), Fla. Stat. Ann. (1979) (Law
Revision Council Note)).
Section 90.108(1) by its plain terms “only governs writings or recordings.”
Calloway v. State, 210 So. 3d 1160, 1184 (Fla. 2017); accord Reese v. State, 694
So. 2d 678, 683 (Fla. 1997); Johnson v. State, 608 So. 2d 4, 9-10 (Fla. 1992), death
sentences vacated on other grounds, 44 So. 3d 51, 68 (Fla. 2010). Therefore, it is
clear that section 90.108(1) does not apply to testimony about conversations and
oral statements. Although some of our caselaw contains loose statements
suggesting that section 90.108(1) is applicable when no writing or recorded
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statement has been introduced into evidence, see, e.g., Calloway, 210 So. 3d at
1184; Ramirez v. State, 739 So. 2d 568, 580 (Fla. 1999); Reese, 694 So. 2d at 683;
Johnson, 608 So. 2d at 9-10; Christopher, 583 So. 2d at 645-46, we have never
actually applied the statute in such circumstances. Instead, we have applied the
common law rule of completeness to allow portions of a conversation or oral
statement omitted on direct examination to be brought in on cross-examination. Of
course, that is not how section 90.108(1) operates. Section 90.108(1) requires the
omitted portions of the writing or recorded statement to be introduced by the party
who originally introduced the writing or recorded statement, subject to a
determination of fairness by the trial court. § 90.108(1), Fla. Stat.; see Larzelere,
676 So. 2d at 402 (“Under a plain reading of the statute, parties may seek the
introduction of other statements when those statements ‘in fairness ought to be
considered contemporaneously’ with the introduction of the partial statement.”
(quoting § 90.108, Fla. Stat.)).
“As a general rule of law, self-serving statements are inadmissible under
section 90.803(18), Florida Statutes . . . .” Kaczmar, 104 So. 3d at 1000; accord
Calhoun v. State, 138 So. 3d 350, 360 (Fla. 2013). But this Court has not
abandoned the common law notion—applied to testimony about conversations and
oral statements—that “[w]hen the state offers in evidence a part of a confession or
admission against interest, the defendant is entitled to bring out on cross-
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examination the entire confession or admission.” Christopher, 583 So. 2d at 646
(emphasis added).
C. The Statutory Rule of Completeness is Inapplicable Here
In this case, Nock filed a motion in limine prior to trial seeking to require the
State to admit the entire video recording of Nock’s statement to the police into
evidence under section 90.108(1). The trial court denied the motion, specifically
finding section 90.108(1) inapplicable because the State was not offering the
recording into evidence. At trial, the State questioned the detective on direct
examination about his conversation with Nock without introducing any portion of
the recording of Nock’s statement into evidence. Through the detective’s
testimony, the State introduced the inculpatory portions of Nock’s statement into
evidence. Nock objected during the State’s direct examination of the detective and
renewed his motion in limine. The trial court overruled Nock’s objections and
denied the renewed motion, but permitted Nock to question the detective on cross-
examination about his conversation with Nock without restriction. Through the
detective’s testimony, Nock introduced the exculpatory portions of Nock’s
statement into evidence and other relevant portions of the statement. But Nock
never sought to introduce the video recording of Nock’s statement into evidence at
any point during the trial.
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The trial court did not err in denying Nock’s motion in limine and overruling
his subsequent objections concerning the introduction of Nock’s entire recorded
statement. Under this Court’s precedent applying the common law rule of
completeness to testimony about conversations and oral statements, Nock was
entitled to introduce the exculpatory portions of Nock’s statement to the police and
other relevant portions of the statement on cross-examination of the detective. But
Nock was not entitled to require the State to introduce the recording of Nock’s
statement during its direct examination of the detective under section 90.108(1).
The statute was inapplicable because the State never introduced any portion of the
recording into evidence. And no other legal basis has been presented for requiring
the State, during its direct examination of a State witness, to introduce into
evidence a video recording of the interview about which the witness gave
testimony.
Nock argues that the Fourth District erred in holding that the “principles” of
section 90.108(1) did not apply to the detective’s testimony regarding Nock’s
statement to the police. Nock’s argument runs up against the text of section
90.108(1). And we decline to take the text where it does not lead us. The Fourth
District correctly concluded that “the trial court properly ruled the [statutory] rule
of completeness inapplicable” because the State “questioned the detective on direct
examination about his conversation with [Nock]” without “introduc[ing] [Nock’s]
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recorded statement” into evidence. Nock, 211 So. 3d at 324. Section 90.108(1)
could not be more clear in limiting its scope to “writing[s] or recorded statement[s]
. . . introduced by a party.” Accordingly, we expressly approve the Fourth
District’s conclusion that section 90.108(1) “does not apply when the written or
recorded statement is not introduced into evidence.” Id.
II. Impeachment
We now address whether section 90.806(1) permits the State to impeach a
defendant1 when the defendant elicits on cross-examination of a State witness
exculpatory portions of a statement made to the police by the defendant. The
standard of review of this legal question is de novo. See State v. Dominique, 215
So. 3d 1227, 1232 (Fla. 2017).
In Nock, the Fourth District held that a defendant is subject to impeachment
whenever the defendant introduces exculpatory hearsay statements into evidence.
The Fourth District certified that its decision is in direct conflict with the decision
of the Second District in Foster, which held that once the State introduces a portion
of the defendant’s statement into evidence, the defendant is entitled to have the
1. Here, the impeachment was with the defendant’s prior convictions.
Section 90.610(1), Florida Statutes (2014), provides: “A party may attack the
credibility of any witness, including an accused, by evidence that the witness has
been convicted of a crime if the crime was punishable by death or imprisonment in
excess of 1 year under the law under which the witness was convicted, or if the
crime involved dishonesty or a false statement regardless of the punishment . . . .”
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jury hear the remainder of the defendant’s statement without placing his or her
credibility in issue under section 90.806(1). The Fourth District’s decision in Nock
primarily relied on this Court’s decisions in Kaczmar and Huggins, which
addressed section 90.806(1); the Second District’s decision in Foster primarily
relied on the concept of “opening the door.” To place the issue in proper context,
we review the relationship between the rule of completeness and the principle of
door-opening before we consider the application of the reasoning of Kaczmar and
Huggins in the present context.
A. The Statutory Rule of Completeness: A
Subset of the General Principle of Door-Opening
“As an evidentiary principle, the concept of ‘opening the door’ allows the
admission of otherwise inadmissible testimony to ‘qualify, explain, or limit’
testimony or evidence previously admitted.” Ramirez, 739 So. 2d at 579 (quoting
Tompkins v. State, 502 So. 2d 415, 419 (Fla. 1986)). “The concept of ‘opening the
door’ is ‘based on considerations of fairness and the truth-seeking function of a
trial.’ ” Id. (quoting Bozeman v. State, 698 So. 2d 629, 631 (Fla. 4th DCA 1997));
see McCrae v. State, 395 So. 2d 1145, 1151-52 (Fla. 1980) (holding that a
prosecutor was entitled to inquire into the exact nature of a prior felony conviction
where defense counsel sought to establish that that prior conviction was
inconsequential). The concept of “opening the door” is also based on “the
consideration that without the fuller explication, the testimony that opened the door
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would be ‘incomplete and misleading.’ ” Peterson v. State, 94 So. 3d 514, 534
(Fla. 2012) (quoting Lawrence v. State, 846 So. 2d 440, 452 (Fla. 2003)); see
Overton v. State, 801 So. 2d 877, 900-01 (Fla. 2001) (agreeing that the State is
permitted to fill in the gaps in the testimony to correct a false impression left by the
defendant). Similarly, the statutory rule of completeness is based on
considerations of “fairness” and “avoid[ing] the potential for creating misleading
impressions by taking statements out of context.” Larzelere, 676 So. 2d at 401-02
(quoting Charles W. Ehrhardt, Florida Evidence § 108.1 (1995 ed.)).
“The phrase ‘opening the door’ has been utilized interchangeably with the
[statutory] rule of completeness.” Ramirez, 739 So. 2d at 580 (citing Larzelere,
676 So. 2d at 402). “The [statutory] rule of completeness, however, is a separate
evidentiary concept that falls within the general principle of door-opening.” Id.
This Court has consistently acknowledged that point. See, e.g., Raleigh v. State,
932 So. 2d 1054, 1064 (Fla. 2006); Larzelere, 676 So. 2d at 401-02; Long v. State,
610 So. 2d 1276, 1280 (Fla. 1992).
B. Kaczmar and Huggins:
This Court’s Precedent Resolves the Conflict Issue
In Kaczmar, this Court considered whether the trial court erred in allowing
the State to play an edited version of recorded conversations between the defendant
and an undercover detective, during which the defendant thought the detective
would help the defendant frame someone else for the murder. Kaczmar, 104 So.
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3d at 1000. “Specifically, the State redacted [the defendant’s exculpatory]
statements in the recordings where he stated that he was framing [someone else]
because he was innocent.” Id. “[T]he State warned the defense that introducing
the exculpatory statements [under section 90.108(1), Florida Statutes (2007)—the
statutory rule of completeness—]would open the door to impeachment of those
statements by introducing [the defendant’s] prior felonies pursuant to section
90.806(1), Florida Statutes (2007) . . . .” Id. at 1001. Section 90.806(1) provides:
When a hearsay statement has been admitted in evidence, credibility
of the declarant may be attacked and, if attacked, may be supported by
any evidence that would be admissible for those purposes if the
declarant had testified as a witness. Evidence of a statement or
conduct by the declarant at any time inconsistent with the declarant’s
hearsay statement is admissible, regardless of whether or not the
declarant has been afforded an opportunity to deny or explain it.
§ 90.806(1), Fla. Stat. (2014). 2 “[I]n response to the State’s warning that
introducing the exculpatory statements would open the door to [the defendant’s]
prior felonies, defense counsel chose not to invoke the [statutory] rule of
completeness.” 104 So. 3d at 1001.
This Court held that “the trial court did not abuse its discretion in allowing
the State to introduce the edited versions of the recordings.” Id. In support of its
holding, this Court specifically acknowledged that “pursuant to section 90.806(1),
2. Section 90.806(1) has not been altered since this Court decided Kaczmar.
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once a defendant introduces his or her hearsay statements into evidence by
invoking the [statutory] rule of completeness, ‘the credibility of the declarant may
be attacked just as if the declarant had testified as a witness.’ ” Id. (quoting Moore
v. State, 943 So. 2d 296, 297 (Fla. 1st DCA 2006)).
This Court laid the foundation for Kaczmar in Huggins, in which we
reasoned that a defendant who chooses not to testify but who succeeds in getting
exculpatory statements uttered by the defendant into evidence as hearsay is subject
to having those statements impeached under section 90.806(1). We concluded that
Huggins had elicited testimony that in effect attributed an exculpatory hearsay
statement to Huggins and had thereby “opened the door to his own impeachment.”
Huggins, 889 So. 2d at 756. We thus applied the rule previously applied by district
courts that a defendant is subject to impeachment “when the defendant elicits his or
her own exculpatory, hearsay statement through another witness at trial.” Id. at
755-56 (citing Kelly v. State, 857 So. 2d 949 (Fla. 4th DCA 2003); Werley v.
State, 814 So. 2d 1159 (Fla. 1st DCA 2002); Llanos v. State, 770 So. 2d 725 (Fla.
4th DCA 2000)).
The reasoning of Kaczmar and Huggins resolves the conflict between Nock
and Foster. Foster relied on the concept of “opening the door” in support of its
conclusion that once the State introduces a portion of the defendant’s statement
into evidence, the defendant is entitled to have the jury hear the remainder of the
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defendant’s statement without being subject to impeachment under section
90.806(1). Foster did not take into account that Kaczmar had previously
foreclosed this result in a substantially similar context. Kaczmar established that a
defendant invoking the statutory rule of completeness—a subset of the general
principle of door-opening—to introduce exculpatory portions of the defendant’s
out-of-court statement into evidence would be subject to impeachment on the basis
of those hearsay statements. Foster likewise did not address the reasoning of
Huggins, which clearly laid a foundation for Kaczmar. There is no basis to permit
a defendant to escape 90.806(1) impeachment under the concept of “opening the
door” when similarly situated defendants would not escape 90.806(1)
impeachment under Kaczmar’s application of the statutory rule of completeness
and the reasoning of Huggins. Therefore, in light of Kaczmar and Huggins, we
expressly approve the Fourth District’s conclusion that a defendant is subject to
impeachment with the defendant’s prior convictions for felonies and crimes of
dishonesty under section 90.806(1) whenever the defendant introduces portions of
his or her out-of-court self-serving exculpatory statement into evidence.
We thus reject Nock’s argument that had the “principles” of section
90.108(1) been applied to the detective’s testimony regarding Nock’s statement to
the police, Nock would not have been “bound” or held responsible for eliciting the
omitted portions of his statement and there would have been no section 90.806(1)
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impeachment. See § 90.108(1), Fla. Stat. (“An adverse party is not bound by
evidence introduced under this section.”). Nock’s argument suffers from multiple
flaws. First, it erroneously asserts that section 90.108(1) is applicable to his case.
As explained previously, “the trial court properly ruled the [statutory] rule of
completeness inapplicable” because the State “questioned the detective on direct
examination about his conversation with [Nock]” without “introduc[ing] [Nock’s]
recorded statement” into evidence. Nock, 211 So. 3d at 324. Second, Nock’s
interpretation of section 90.108(1) is foreclosed by Kaczmar and Huggins. Finally,
Florida’s common law rule of completeness does not require a different result.
The fact that the State has “opened the door” to the introduction of exculpatory
hearsay statements of a defendant does not suspend the operation of the rule set
forth in section 90.806(1) authorizing the impeachment of hearsay declarants. We
will not impose such a restriction on the operation of the statute that is unwarranted
by the text of the Code of Evidence.
CONCLUSION
We approve Nock and disapprove Foster.
It is so ordered.
POLSTON, LABARGA, and LAWSON, JJ., concur.
LEWIS, J., concurs in result.
PARIENTE, J., dissents with an opinion, in which QUINCE, J., concurs.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND,
IF FILED, DETERMINED.
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PARIENTE, J., dissenting.
This case is not about the rule of completeness but about considerations of
fairness and the principle of “opening the door.” In this case, the State made a
strategic decision to not introduce Nock’s video interrogation, avoiding the rule of
completeness, and instead presented the testimony of the detective present during
the interrogation, who paraphrased and in some cases inaccurately portrayed
Nock’s statements. The State’s presentation left the jury with an inaccurate
portrayal of Nock’s statements and forced Nock into a Hobson’s choice: either
correct the inaccurate portrayal on cross-examination and be subjected to
impeachment or leave the jury with an inaccurate portrayal of the interrogation.
Because of the State’s strategic choices, the State was permitted to introduce
evidence of Nock’s nine prior felony convictions, even though Nock never took the
witness stand.
The judicially created principle of “opening the door” is based on “the
consideration that without the fuller explication, the testimony that opened the door
would be ‘incomplete and misleading.’ ” Peterson v. State, 94 So. 3d 514, 534
(Fla. 2012) (quoting Lawrence v. State, 846 So. 2d 440, 452 (Fla. 2003)). The
principle may work against a criminal defendant where the State is permitted to fill
in gaps in the testimony to correct a false impression left by the defendant. See,
e.g., Overton v. State, 801 So. 2d 877, 900-01 (Fla. 2001). When that false or
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incomplete testimony is created by the State, the defendant should be permitted,
through cross-examination, to fill in the gaps, without being subject to
impeachment as occurred in this case.
The Second District Court of Appeal, in Foster v. State, 182 So. 3d 3 (Fla.
2d DCA 2015), explained why fairness compels the opposite result of that reached
by the majority:
Generally, a defendant’s out-of-court self-serving exculpatory
statements are inadmissible hearsay. Lott v. State, 695 So. 2d 1239,
1243 (Fla. 1997). “[H]owever, where the state has ‘opened the door’
by eliciting testimony as to part of the conversation, [the] defendant is
entitled to cross-examine the witness about other relevant statements
made during the conversation.” Guerrero v. State, 532 So. 2d 75, 76
(Fla. 3d DCA 1988). “The ‘opening the door’ concept is based on
considerations of fairness and the truth-seeking function of a trial,
where cross-examination reveals the whole story of a transaction only
partly explained in direct examination.” Bozeman v. State, 698 So. 2d
629, 631 (Fla. 4th DCA 1997).
Id. at 4.
Like the Second District, I would conclude that when the State omits
material parts of the relevant interrogation, paraphrases, or presents inaccurate
statements of a criminal defendant, the defendant is entitled to introduce, on cross-
examination, any statement necessary to correct the misimpression, including
exculpatory statements, without being subject to impeachment. In other words, the
defendant should be able to provide context for any statements introduced.
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However, the decision made by the trial court, affirmed by the Fourth
District Court of Appeal and approved by this Court, was that if Nock wanted an
accurate portrayal of his statements to the police he could be impeached with
evidence of prior crimes even if he did not testify. Because this result is
antithetical to the concept of fairness, upon which the principle of opening the door
is based, and is not required by this Court’s precedent, I dissent.
FACTS
The State’s entire direct examination of the detective in this case was
designed to further its theory of the crime. Instead of simply introducing the video
of Nock’s interrogation, the State chose to carefully introduce portions of Nock’s
interrogation through the testimony of the detective who was present in such a way
as to create an illusion that the State’s evidence proved that Nock committed
premeditated first-degree murder. A very different impression of the interrogation
is conveyed by the video of the complete interrogation. In an effort to correct the
misimpression created by the State, the defense, on cross-examination,
chronologically presented the interrogation and was able to elicit the proper
context in which many of Nock’s statements were made.
The State’s presentation of Nock’s interrogation was misleading in several
critical ways. First, while questioning the detective on direct examination, the
State presented the interrogation out of order. While it is true, as the detective
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testified on direct examination, that Nock denied the crime for the first hour of the
interrogation, it is also true, as was elicited on cross-examination, that after the first
hour, Nock accepted responsibility for the crime, answered all of the detective’s
questions, and never changed his story that the death was an accident.
Second, the State paraphrased Nock’s statements in the interrogation. For
example, on direct examination, the detective testified that Nock stated: “It wasn’t
suppose[d] to happen this way.” What Nock actually said in the interrogation was,
“It wasn’t suppose[d] to happen, he stopped breathing.”
Third, the State presented only portions of the interrogation, randomly
picking and choosing some of Nock’s statements and divorcing them from their
proper context. For example, with respect to Nock’s description of how the victim
died, the detective testified on direct examination that Nock explained how the
victim died in the kitchen, and that he had already taken the victim’s wallet and
credit cards at the time of his death. However, on cross-examination, the detective
conceded that Nock also explained that the victim’s death was an accident, and
then he demonstrated how the victim died. Additionally, the detective conceded
on cross-examination that even though he pressed Nock multiple times in regard to
the theory that the death was the result of a robbery gone bad, Nock consistently
maintained throughout the interrogation that the death was an accident.
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As another example, the detective testified on direct examination that when
the victim stopped breathing while in a wrestling hold, Nock tried to awaken him
after the victim dropped to the kitchen floor, but the victim did not respond. On
cross-examination, the detective conceded that Nock actually said that he never
intentionally hurt anyone and that he had not intended to hurt the victim. The
detective also admitted that Nock told him that the victim “quit breathing on me”
and the detective clarified that contrary to his direct examination testimony, Nock
did not state that the victim passed out or lost consciousness.
With respect to the alleged robbery, the detective testified on direct
examination that Nock told him that he grabbed the victim’s laptop computer, car
keys, and other items, not including his wallet and credit cards, after the victim
died. On cross-examination, the detective admitted that, within the same part of
the interrogation, Nock also stated that he took those items because the victim had
died and he wanted to make the scene appear as though the items were taken in a
robbery. Additionally, Nock stated that although he initially put a cord around the
victim’s neck, he removed it because he felt that it was wrong to put it there in the
first place. In the same context, the detective pressed Nock on his use of the
victim’s credit cards and Nock replied that he was desperate and foolish and that
his mind was elsewhere at the time.
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With respect to the victim’s home, on direct examination the detective
testified that Nock told him he poured bleach on the kitchen floor to cover up his
presence. On cross-examination, the detective admitted that during the same part
of the interrogation, Nock also said that he panicked before he poured the bleach
on the victim’s floor because he did not know CPR and he checked but found that
the victim did not have a pulse. Nock also stated that after pouring bleach on the
floor, he talked to the victim for thirty minutes, knowing he was dead. Nock then
contemplated suicide because the victim died on him.
Nock’s defense attorney brought the State’s misrepresentations to the trial
judge’s attention:
I’m planning to cross examine Detective Rivera if the courts,
and the Court has, I’m not quibbling with your ruling, you have
denied my insistence that the statement be admitted to be charged to
the State, that the State be charged of the proponent of the statement, a
full recorded statement. I am going to cross examine Detective Rivera
about things that he omitted from the statement that the State cherry
picked deliberately of him, certain phrases and context. The context
of the statement has been misrepresented, it’s not accurate. The
context is critical. So, I do intend to and I want to make it clear
because it’s very clear now because the Court’s reminding me and the
Court wants to inquire of Mr. Nock that if I do that, . . . that’s going
to open up Mr. Nock to being impeached. . . .
....
. . . Mr. Nock has a right to counsel and he has a right to cross
examination but that’s gonna to come at a cost to Mr. Nock that that’s
going to be impeached and it’s going to cost his fifth amendment right
to remain silent . . . .
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The trial court denied Nock’s multiple requests to have the entire
interrogation entered into evidence. Instead, the trial court held that if Nock
wanted to introduce the entire interrogation to clarify the misimpressions made by
the State, he could do so during his portion of the trial, but would be subject to
impeachment. Specifically, the trial court held that any clarification of the
interrogation by Nock that included exculpatory statements would lead to the court
permitting the State to present evidence to the jury of Nock’s nine prior felony
convictions.
ANALYSIS
Today, the majority opinion approves the decision below, essentially
permitting the State to force criminal defendants into the Hobson’s choice of
allowing their interrogation with police to be misstated and mischaracterized
through the testimony of an interested party or divulging to the jury highly
prejudicial information of their previous criminal convictions. However, I would
approve Foster, which avoids this unnecessary and patently unfair result. In
Foster, the Second District, under similar facts, held:
Here, the record shows that it was the State that first elicited
testimony from the officer that Foster said he found the wallet. Once
the State presented a portion of Foster’s statement, Foster was entitled
to have the jury hear the remainder of his statement without fear of
placing his credibility in issue. Thus, the trial court erred in finding
that defense counsel’s cross-examination of the officer opened the
door to Foster’s impeachment by prior convictions.
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182 So. 3d at 4-5 (citation omitted).
The majority disapproves Foster, concluding that it is contrary to this
Court’s decision in Kaczmar v. State, 104 So. 3d 990 (Fla. 2012), and “did not
address the reasoning of Huggins [v. State, 889 So. 2d 743 (Fla. 2004)], which
clearly laid a foundation for Kaczmar.” Majority op. at 21. However, the majority
fails to acknowledge that there is a significant distinction between this case and
Foster and this Court’s opinions in Huggins and Kaczmar.
In Kaczmar, the State played an edited version of recorded conversations
between the defendant and an undercover detective in regard to the defendant
framing an innocent person for the murder. 104 So. 3d at 1000. This Court
concluded that “in response to the State’s warning that introducing the exculpatory
statements would open the door to Kaczmar’s prior felonies, defense counsel chose
not to invoke the rule of completeness. Accordingly, the trial court did not abuse
its discretion in allowing the State to introduce the edited version of the
recordings.” Id. at 1001.
Critical to this case is that there is no indication in Kaczmar that the State
attempted to either play the recording out of order or take Kaczmar’s statements
out of context. Indeed, the actual recorded conversation, albeit an edited version,
was played for the jury. Id. Therefore, the jury in Kaczmar, as opposed to this
case, was able to follow the conversation in the order in which it occurred and
- 30 -
listen to the statements that were actually made by the parties, rather than one
participant’s recollection of the statements. Thus, the fairness concerns that are
present in this case were not present in Kaczmar.
Huggins is likewise distinguishable from this case. There, the defendant
himself introduced the exculpatory testimony of a corrections officer in an attempt
to counter evidence presented by the State. 889 So. 2d at 755. The testimony was
presented in response to evidence entered by the State of his consciousness of
guilt. Id. However, nowhere in the opinion is there any indication that the State
presented an inaccurate or misleading portrayal of the evidence. Thus, Huggins
made the choice to elicit the exculpatory information in an effort to help his
defense, and was not forced to do so in an effort to clarify misrepresentations made
by the State.
By contrast, in this case, the State inaccurately portrayed Nock’s
interrogation and eventual confession to the crime, presenting the interrogation
piecemeal and out of order and paraphrasing some of Nock’s statements.
Similarly, in Foster, the State elicited only a portion of Foster’s statement to the
police on direct examination, requiring Foster to introduce the other relevant
portions of his statement in order to clarify the State’s portrayal of his statements.
182 So. 3d at 5.
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Accordingly, contrary to the majority’s reasoning, Huggins and Kaczmar do
not mandate the conclusion in this case. The highly inequitable result in this case
is a direct product of this distinguishing factor between the two sets of cases and
compels this Court to apply the concept of “opening the door” here, as was done in
Foster. Thus, this Court should require that when one party introduces an
interrogation in a way that is incomplete and misleading, it opens the door to
allowing the other party to introduce an accurate depiction of the conversation,
even if doing so includes exculpatory statements. As the majority opinion aptly
explains:
“As an evidentiary principle, the concept of ‘opening the door’
allows the admission of otherwise inadmissible testimony to ‘qualify,
explain, or limit’ testimony or evidence previously admitted.”
Ramirez [v. State], 739 So. 2d [568,] 579 [(Fla. 1999)] (quoting
Tompkins v. State, 502 So. 2d 415, 419 (Fla. 1986)). “The concept of
‘opening the door’ is ‘based on considerations of fairness and the
truth-seeking function of a trial.’ ” Id. (quoting Bozeman v. State, 698
So. 2d 629, 631 (Fla. 4th DCA 1997)); see McCrae v. State, 395 So.
2d 1145, 1151-52 (Fla. 1980) (holding that a prosecutor was entitled
to inquire into the exact nature of a prior felony conviction where
defense counsel sought to establish that that prior conviction was
inconsequential). The concept of “opening the door” is also based on
“the consideration that without the fuller explication, the testimony
that opened the door would be ‘incomplete and misleading.’ ”
Peterson v. State, 94 So. 3d 514, 534 (Fla. 2012) (quoting Lawrence v.
State, 846 So. 2d 440, 452 (Fla. 2003)); see Overton v. State, 801 So.
2d 877, 900-01 (Fla. 2001) (agreeing that the State is permitted to fill
in the gaps in the testimony to correct a false impression left by the
defendant). Similarly, the statutory rule of completeness is based on
considerations of “fairness” and “avoid[ing] the potential for creating
misleading impressions by taking statements out of context.”
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Larzelere [v. State], 676 So. 2d [394,] 401-02 [(Fla. 1996)] (quoting
Charles W. Ehrhardt, Florida Evidence §108.1 (1995 ed.)).
Majority op. at 17-18.
Fairness and the need to cure the misleading impression left by the
testimony presented by the State required that Nock be allowed to introduce an
accurate portrayal of his interrogation. Moreover, because the State’s actions
placed Nock in an untenable position to clarify its numerous and calculated
misrepresentations, Nock should not be penalized by being subject to
impeachment. Thus, I would conclude that the trial court erred in allowing
evidence of Nock’s nine prior felony convictions to be introduced at trial.
Additionally, I would conclude that the error in this case was not harmless
beyond a reasonable doubt. As the Second District held in Foster, “Because this
case turned on [the defendant’s] credibility and whether the jury believed [his
version of the crime], we cannot say beyond a reasonable doubt that allowing the
jury to learn of his prior criminal record did not contribute to the verdict.” 182 So.
3d at 5; see also State v. DiGuilio, 491 So. 2d 1129, 1134 (Fla. 1986).
CONCLUSION
At the heart of this case is the concept of fairness, which is the basis for the
principle of opening the door. Nock should not be forced to correct the State’s
misimpression of his interrogation at the cost of being impeached by highly
prejudicial evidence of prior felony convictions. Thus, I would conclude that the
- 33 -
trial court erred when it permitted the State to introduce evidence of Nock’s prior
felony convictions. Further, because I conclude that the error is not harmless, I
would reverse and remand for a new trial.
Accordingly, I dissent.
QUINCE, J., concurs.
Application for Review of the Decision of the District Court of Appeal – Certified
Direct Conflict of Decisions
Fourth District - Case No. 4D14-1240
(Broward County)
Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender,
Fifteenth Judicial Circuit, West Palm Beach, Florida,
for Petitioner
Pamela Jo Bondi, Attorney General, Tallahassee, Florida, Celia Terenzio, Bureau
Chief, and Don M. Rogers, Assistant Attorney General, West Palm Beach, Florida,
for Respondent
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