
    David Wayne CARTER, Appellant, v. STATE of Florida, Appellee.
    No. 4D15-3132
    District Court of Appeal of Florida, Fourth District.
    April 26, 2017
    Order Denying Rehearing June 21, 2017
    
      Antony P. Ryan, Regional Counsel, and Richard G. Bartmon, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, Fourth District, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Allen R. Geesey, Assistant Attorney General, West Palm Beach, for appellee.
   Gross, J.

Appellant was convicted of sexual activity with a child and battery of a child. We write primarily to explain why the rule of completeness did not compel admission of his exculpatory post-arrest station house statement after the state introduced a tape of a controlled phone call between the victim and appellant.

Appellant was romantically involved with the victim’s mother. He moved in with the mother and her family when the victim was 10 or 11. When she was 17, the victim disclosed to a school counselor that, for five years, she had been sexually abused by appellant.

The controlled call

Law enforcement was contacted and a detective arranged to record a controlled call between the victim and appellant. The recording was played for the jury during the detective’s testimony. Pertinent parts of the call are set forth below.

Victim: I just can’t get over what has happened between me and you. And I don’t know how to get over it.
Appellant: Well, me and you—what are you talking about, like last night or the night before?
Victim: No, like having sex.
Appellant: Well, why don’t we talk about this tonight, you can’t just make it through today?
Victim: ... I can’t stop thinking about it and I can’t calm down. And I don’t have my medicine—
Appellant: Well, you left this morning fine. What—what are you—what is going on that you can’t—I just—
Victim: Because this one girl was talking about her [redacted]. And then it just triggered me. And I can’t stop thinking about it. Like I don’t—I don’t know, I can’t stop thinking about it. I can’t get over it. I just—I just want to know why. Is it because I’m not your kid, like—
Appellant: No, [Victim] and I really can’t talk to you on the phone. And I feel bad. Let me go—I’ll tell you (unintelligible) know I need to run over to your school. And I’ll come over there and we’ll talk.
... you also have to understand and take some responsibility on your own too. It’s like you’re hitting me with this stuff, and it’s like—you act like you have no clue.
Victim: Is it my fault why you had sex with me?
Appellant: No, [Victim] quit punishing yourself.
[Victim says she think she might be pregnant]
Victim: Did you always wear a condom though?
Appellant: [Victim] can we talk about this later? I feel like you’re setting me up because you start talking on the phone because somebody is listening or recording you.
Victim: But I don’t want to tell the police.
Appellant: Well, don’t tell the police. If you tell the police, [Victim] everything is over. Your brother and sister, whatever would have come of them for sure is done. Your mother can’t afford them, nothing like that. I’m done. I’m going to go to prison for the rest of my life. And then where are you going?
Victim: ... I just want to know why you had sex with me. That’s [unintelligible] reason. I’m always thinking about it. I always blame myself. And I feel so disgusting about myself. And I feel like I did something wrong.
Appellant: You didn’t do anything wrong, [Victim], other than—the only thing I know of that I can tell you where you went—where you went wrong on your part is, is you wanted to do something, okay, and you wouldn’t take no for an answer. You insisted on it.
And then now that you’ve gotten older you’re like what the f* * *, now I feel dirty and stuff like that. And it’s like, well, from the time that that happened up until now, why didn’t you do this years ago?

Appellant was arrested the same day the call took place. During station house questioning by a detective, appellant contends that “he denied having sexual relations or contact with [the victim] sixteen times.”

The rule of completeness did not require admission of appellant’s station house statements along with the controlled call

Appellant argues that, under the rule of completeness, his statement to the police, made later the samé day as the controlled call, should have been admitted right after the recorded telephone conversation with the victim. .

The rule of completeness does not apply here because appellant’s exculpatory statements to the detective do not clarify or shed light on his statements made to an entirely different listener, the victim in the controlled call. The rule has been applied to different parts of the same statement; at its most extreme, it has been applied to related statements to the same person.

Typically at trial, a defendant’s statement during police interrogation is hearsay; it is a statement “other than one made by the [defendant] while testifying at the trial ,.. offered in evidence to prove the truth of the matter asserted.” § 90.801(l)(c), Fla. Stat. (2014). When offered by the state, a defendant’s out-of-court statement falls under the admission exception to the rule against hearsay—it is offered “against” the defendant and is his own statement. § 90.803(18)(a), Fla. Stat. (2014). A defendant’s attempt to offer his own statement claming innocence during police questioning usually runs afoul of the rule against hearsay. The admission exception does not apply because the defendant is not offering it “against” a party, but to buttress his own case. See Calloway v. State, 210 So.3d 1160, 1183 (Fla. 2017) (“Self-serving hearsay statements are generally inadmissible.”). This application of the rule against hearsay often requires a defendant to take the witness stand if he wants to tell his story, where he is subject to cross-examination.'

■ Appellant sought to admit his prior statements under the rule of completeness, codified at section 90.108(1), Florida Statutes (2014), which provides in pertinent part:

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.

(Emphasis added).

The purpose of the statute 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). As the Florida Supreme Court has explained,

Fairness is clearly the focus of this rule. Thus, when a party introduces part of a statement, confession, or admission, the opposing.party is ordinarily entitled to bring out the remainder of the statement. This rule is not absolute, and the correct standard is whether, in the interest of fairness, the remaining portions of the statements should have been contemporaneously provided to the jury.

Ramirez v. State, 739 So.2d 568, 580 (Fla. 1999) (internal citations omitted). Ramirez describes the most common fact pattern, where - a party offers, only a portion of a statement and his opponent seeks admission of other parts of the same statement under the rule .of completeness.

Appellant focuses on the plain language of section 90.108(1), which allows not just omitted parts of the same statement, but also' “any other writing or recorded statement that in fairness ought to be considered contemporaneously” with the statement already introduced in evidence.

In practice, the statute has never been given the broad application urged by appellant. Taken-to its extreme, such a reading would require the contemporaneous admission of any written or recorded statement that might cast light on an admitted statement. Using the language of section 90.108(1), “fairness” does not require turning a trial into a voyage on a sea of hearsay.

In practice, when the statute has been applied to require the contemporaneous admission of “other” writings or recorded statements, all the statements or conversations are between the same parties.

For example, in Kaezmar v. State, the state played an edited version of recorded conversations between the defendant and an undercover detective, during which the defendant thought the detective would help him frame someone else for a murder. 104 So.3d 990, 1000 (Fla. 2012). Eliminated from this edited version, were the defendant’s statements where he said that he was framing someone else because he was innocent. Id. The rule of completeness required the contemporaneous admission of these statements. Id. Thus, although Kaez-mar involved separate conversations, the separate conversations were between the same two persons.

Similar to Kaczmar, Johnson v. State involved two statements of a defendant in a manslaughter case—one immediately after his arrest and another in a “formal statement” at the police station where he claims self defense. 653 So.2d 1074, 1075 (Fla. 3d DCA 1995).'Because the opinion uses the terms “police officer” and “detective” interchangeably, it appears that the same officer heard both statements, distinguishing that case from this one. The third district held that section 90.108 allowed the defendant to question the .“detective/officer” about the formal statement after “the State had introduced [the defendant’s] first, informal statement.” Id. Although the two statements were separated by a short period of time, they were arguably part of a continuous process of interrogation. Johnson is consistent with cases applying section 90.108(1) to require, admission of the portion of a defendant’s statement relating to a defense to criminal charges. See Metz v. State, 59 So.3d 1225, 1227 (Fla. 4th DCA 2011).

Unlike Kaezmar and Johnson, the statements made by appellant during the controlled call were to the victim. And the statements later made by appellant, where he protested his innocence, occurred during his interrogation by the police. The two statements “were made to different persons in different settings and could not be viewed as a single continuous narrative or process of interrogation.” People v. Hubrecht, 2 A.D.3d 289, 769 N.Y.S.2d 36, 37 (2003). The trial court did not err in' refusing to admit the station house statements shortly after the tape of the controlled phone call with the victim.

We also reject appellant’s argument that the rule of completeness allowed him to introduce certain exculpatory station house statements after the state used a different portion of that statement to impeach appellant on cross-examination. We agree with the trial court that the portions appellant sought to admit were not related to the portions used for impeachment, so "they did not “explain or shed light upon" the p'árt already admitted.” Charles W. Ehrhardt, Florida Evidence § 108.1, at 55-56 (2006 ed.).

No error in sentencing has been demonstrated.- Tragically, the victim committed suicide between the trial and the sentencing hearing. At trial she testified that she had tried to commit suicide because she “felt disgusting and like nothing” and thought suicide would take her away from the situation. The suicide attempt led her, several weeks later, to tell her counselor about the abuse. “A statement regarding the extent of the victim’s loss or injury" is a permissible factor to consider at sentencing. § 921,231(l)(n), Fla. Stat. (2014). The victim’s suicide demonstrated the extent of her psychological injury. It was therefore appropriate for the sentencing judge to consider the testimony concerning the victim’s suicide at the sentencing hearing.

Affirmed.

Ciklin, C.J., and Kuntz, J., concur.

ON MOTION FOR REHEARING

We deny the motion for rehearing, but write to distinguish a recent Florida Supreme Court case and to further discuss the application of section 90.108(1), Florida Statutes (2015).

One day after our panel opinion issued, the Florida Supreme Court released Tundidor v. State, No. SC14-2276, 221 So.3d 587, 2017 WL 1506854 (Fla. Apr. 27, 2017), where it approved a trial court’s ruling allowing the introduction of a witness’s deposition testimony contemporaneously with that same witness’s testimony from an earlier, separate Arthur hearing. The court explained the rule of completeness “is not limited to situations where statements are taken out of context,” and that the plain language of section 90.108 allows a party to seek the introduction of other statements when “fairness” requires that those statements be considered contemporaneously with other statements. Id. at 599, 2017 WL 1506854 at *7.

Appellant relies on Tundidor to argue that his post-arrest exculpatory statement to a detective should have been introduced contemporaneously with the controlled call between appellant and the victim.

We reaffirm our holding that because appellant’s post-arrest statement neither explained nor clarified the controlled call, the introduction of the controlled call, when viewed in isolation, did not create a misleading impression. Fairness thus did not require the contemporaneous introduction of the post-arrest exculpatory statement.

Florida’s rule of completeness, originally enacted in 1976, 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.

§ 90.108(1), Fla. Stat. (2015). The federal rule is similar. See Fed. R. Evid. 106 (“If a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part—or any other writing or recorded statement—that in fairness ought to be considered at the same time.”).

Under the section 90.108(1) rule of completeness, “once a party ‘opens the door’ by introducing part of a statement, the opposing party is entitled to contemporaneously bring out the remainder of the statement in the interest of fairness.” Larzelere v. State, 676 So.2d 394, 401-02 (Fla. 1996).

The origins of the rule 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. Thus, the purpose of the rule of completeness “is to ensure that a misleading impression created by taking matters out of context is corrected on the spot.” Bergman & Hollander, supra.

This purpose was reflected in the common law rule of completeness which 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.” 7 J. Wigmore, Evidence in Trials at Common Law § 2113, p. 653 (Chadbourn rev. 1978); see also Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 171, 109 S.Ct. 439, 102 L.Ed.2d 445 (1988) (quoting this passage while discussing the rule of completeness). In addition to ensuring that a court has an accurate representation of a declarant’s statement, the rule guards against “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 172 n.14, 109 S.Ct. 439.

United States v. Burns, 162 F.3d 840, 852-53 (5th Cir. 1998).

As early as 1896, the Florida Supreme Court applied the common law rule to the situation where the state offers “evidence of inculpatory statements made by the defendant, and the defendant ... seeks to show other exculpatory statements, or statements deemed exculpatory, made in the same conversation, in reference to the same subject-matter.” Thalheim v. State, 38 Fla. 169, 20 So. 938, 947 (1896) (emphasis added). The court held that in such cases “the defendant is entitled to have before the jury all that was said upon the subject upon the particular occasion, whether prejudicial or beneficial to him.” Id.; see also Bennett v. State, 96 Fla. 237, 118 So. 18, 19 (1928) (“The rule as to admissions in general is that the whole of the statement containing the admission is to be received together.”).

“Fairness is clearly the focus” of section 90.108(1). Jordan v. State, 694 So.2d 708, 712 (Fla. 1997); see also Larzelere, 676 So.2d at 401-02 (explaining when one party introduces “part of a statement, the opposing party is entitled to contemporaneously bring out the remainder of the statement in the interest of fairness.”) (emphasis added); Long v. State, 610 So.2d 1276, 1280 (Fla. 1992) (“It is well established that, when the State offers in evidence a part of a confession or admission, the accused, in the interest of fairness, is entitled to bring out the remainder of that confession or admission.”) (emphasis added); Eberhardt v. State, 550 So.2d 102, 105 (Fla. 1st DCA 1989), rev. den., 560 So.2d 234 (Fla. 1990) (explaining where the state admitted only portions of a defendant’s conversation with police, the rule allowed “admission of the balance of the conversation as well as other related conversations that in fairness are necessary for the jury to accurately perceive the whole context of what has transpired between the two.”) (emphasis added).

Because it is not limited to different parts of the same conversation or writing, section 90.108(1) is broader than the common law rule; the statute allows the adverse party to require the introduction of “any other writing or recorded statement that in fairness ought to be considered contemporaneously.” § 90.108(1) (emphasis added). “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.” Larzelere, 676 So.2d at 402 (quoting § 90.801(1)). However, the statute has not abandoned the common law notion that “fairness” requires the contemporaneous introduction of an “other” statement only if it is required to give a “complete understanding of the total tenor and effect” of the statement introduced in evidence. 7 Wigmore, supra.

Here, the state introduced a controlled call between appellant and the victim. Appellant argues that fairness compelled the contemporaneous introduction of his post-arrest statement to police made later the same day the controlled call was made, during which he repeatedly denied sexual contact with the victim. Appellant contends the admission of just the controlled call, during which he did not explicitly deny sexual contact with the victim, misled the jury because it failed to tell the whole story.

In asserting that the plain language of section 90.801 and fairness required the contemporaneous introduction of his post-arrest statement, appellant ignores a significant limitation to the rule. “The opposing party is entitled to have a portion of the writing [or other writing] introduced only insofar as it tends to explain or shed light upon the part already admitted.” Charles W. Ehrhardt, Florida Evidence § 108.1 (2006 ed.) (emphasis added). In Correll v. State, 523 So.2d 562, 566 (Fla. 1988), the court held that although “a defendant’s statement should be introduced into evidence in its entirety,” a court does not err by omitting a portion of the defendant’s statement if it is irrelevant. In the context of two separate statements, even if they refer “generally to the same events,” a court does not err in excluding the later statement if it does “nothing to explain the earlier” statement. Christopher v. State, 583 So.2d 642, 646 (Fla. 1991). The right to bring out the remainder of a statement or another statement under the rule of completeness is thus “not absolute.” Larzelere, 676 So.2d at 402.

This limitation is consistent with the purpose of the rule, which is “to avoid the potential for creating misleading impressions by taking statements out of context.” Id. at 401. For example, “[i]f one letter in a continuing correspondence between two individuals is introduced, that letter by itself may be misleading.” Ehrhardt, supra. Section 90.108(1) would allow the entire correspondence contemporaneously admissible “in order to ensure that the jury fairly perceives what has occurred.” Id. “The included material literally ‘completes’ that which the proponent introduced.” Bergman & Hollander, supra.

In Tundidor, because a particular witness was unavailable for trial, the defendant offered her five-page-long testimony from the defendant’s Arthur hearing. No. SC14-2276, at 599-600, 2017 WL 1506854 at *7. In response, the state sought to introduce the witness’s deposition testimony, “arguing that the deposition would give the jury a more complete picture as to her testimony and that the deposition-followed up on issues addressed in her Arthur hearing testimony.” Id. The trial court admits ted both the hearing and deposition testimony. Id. The supreme court. affirmed, explaining that because the Arthur hearing testimony was only five pages long, it might have provided “an incomplete impression” to the jury regarding the witness’s relationship with the defendant’s son. Id. For example, at the Arthur hearing, the witness merely mentioned she had a falling out with the defendant’s , son, but at .the deposition she added clarity to the circumstances of- that falling out. Id. “Given- the relation between the Arthur hearing and deposition testimonies,” the court held, there was no abuse of discretion in admitting the deposition testimony. Id.

In Tundidor, without the introduction of the witness’s deposition testimony clarifying the circumstances of her falling out with the defendant’s son, the jury may not have fairly perceived what occurred between them. Thus, fairness required the contemporaneous introduction of the deposition testimony because it clarified, or explained, the witness’s earlier testimony from the Arthur hearing.

Here, appellant’s post-arrest statement to police neither explained nor clarified the controlled call with the, victim. “The .jury could not have been misled as to the content of [the controlled call] by the exclusion of the [post-arrest statement].” Christopher, 583 So.2d at 646.

We noted in our original opinion that section 90.108 has never been given the broad application urged by appellant. This makes sense- because a defendant has different-interests whén-interacting with a victim of his sexual assault than when confronting a detective after his arrest. While the witness’s interest -in Tundidor remained the same from the Arthur hearing to the deposition, appellant’s interest and motivation changed dramatically once he was arrested and questioned by police. Appellant did not vehemently deny a sexual l-elationship with the victim during the controlled call because his interest was to keep her from going to the police, or, perhaps, to continue the illicit relationship. Given the different interests triggered by his arrest, appellant’s post-arrest .exculpatory statement did not complete his earlier statements made to the victim during the controlled call.- Thus, fairness did not require the contemporaneous introduction of appellant’s post-arrest statement to police with the controlled call.

The motion for rehearing is denied. 
      
      . Some federal courts have held that under Rule 106, ‘‘[e]xculpatoiy hearsay may not come in solely on the basis of completeness.” United States v. Shaver, 89 Fed.Appx. 529 (6th Cir. 2004). This limitation on Rule 106 has been criticized by other courts and commentators. See, e.g., United States v. Sutton, 801 F.2d 1346, 1368 n.16, 17 (D.C. Cir. 1986).
     
      
      . State v. Arthur, 390 So.2d 717 (Fla. 1980).
     