DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

SHERARD ADAMS, 

Appellant, 

v. 

STATE OF FLORIDA, 

Appellee. 

No. 4D17-966 

[July 24, 2019] 

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, 

Broward County; Martin J. Bidwill, Judge; L.T. Case No. 13-014515 

CF10A. 

Samuel R. Halpern, Fort Lauderdale, and Arthur E. Marchetta, Jr., Fort 

Lauderdale, for appellant. 

Ashley Moody, Attorney General, Tallahassee, and Mark J. Hamel, 

Assistant Attorney General, West Palm Beach, for appellee. 

MAY, J. 

The defendant appeals his conviction and sentence for first degree 

murder. He argues the trial court erred in admitting: (1) a co-defendant’s 

statements because they lacked indicia of trustworthiness and violated the 

Confrontation Clause; (2) letters written by the defendant in jail and parts 

of a book authored by the defendant; and (3) a recorded phone call between 

the victim’s father and the defendant. We agree with him in part and 

reverse and remand the case for a new trial. 

The State charged the defendant and co-defendant with murder in the 

first degree. The trial court severed their cases. The co-defendant 

ultimately confessed to his involvement, but claimed the defendant 

threatened him into doing it and paid him for it. He provided the State 

with a testimonial proffer in exchange for his plea to a reduced charge and 
2

his agreement to testify against the defendant at trial. The defendant 

entered a not guilty plea. 

Prior to trial, the defendant moved in limine to preclude the admission 

of the co-defendant’s statements and recorded conversations in which he 

inculpated the defendant. The motion also sought to exclude the 

defendant’s taped telephone conversation with the victim’s father, letters 

he wrote from jail to the co-defendant and another inmate, and parts of 

his authored book (The Prince of Pentium). The court denied the motion. 

At trial, the victim’s neighbor testified that he heard gunshots on the 

night of the murder. He looked outside and saw a man driving a blue-andwhite motorcycle down the street. 

Before the State called the victim’s father to testify, the defendant 

renewed his objection to the introduction of the recorded phone call 

between him and the victim’s father the day after the murder. The trial 

court overruled the objection. 

The victim’s father explained the defendant had previously dated his 

daughter. On the night of the murder, the defendant called to speak with 

her. She told her father the defendant would be coming over to meet with 

her outside. Her father asked her not to go out. 

 

About ten to fifteen minutes after his daughter went outside, the father 

heard several gunshots and a motorcycle speeding away. When he went 

outside, he saw his daughter lying on the ground. 

 

After the paramedics arrived, the father went into the house to get 

dressed and follow the ambulance. The phone began ringing. When the 

answering machine picked up, he heard the defendant’s voice asking what 

happened. The defendant continued to call the victim’s father numerous 

times after he returned from the hospital. 

The next day two detectives came to the victim’s home. The defendant 

called again while the detectives were there. They recorded the call. 

The trial court admitted the recorded phone call, which revealed the 

defendant continuously asking the victim’s father what happened the 

night before. The victim’s father accused him of shooting the victim; the 

defendant adamantly denied being involved. The father called the 

defendant a liar, a punk, and a junkie. 
3

After the call, the defendant reached out to the detectives and agreed to 

talk to them. During his conversation with them, the defendant admitted 

to talking to the victim on the night of the murder. He agreed to stop by 

and see her, but claimed he never came by. Instead, he went to a friend’s 

home on his motorcycle. He denied shooting the victim or knowing who 

shot her. The detectives saw a white motorcycle with blue lights parked at 

the defendant’s house. 

 

As the State prepared to call the co-defendant to testify, the codefendant presented a letter to the court. In the letter he claimed he never 

killed the victim. He completely recanted his prior statements. The trial 

court read the letter and gave copies to both parties. The State advised 

the court the co-defendant was unwilling to testify against the defendant, 

and asked the court to declare him unavailable. 

 

In lieu of the co-defendant’s live testimony, the State offered the 

testimony of the co-defendant’s friend1 and his recorded conversations 

with the co-defendant. The co-defendant told his friend that he killed the 

victim by shooting her five times in the chest and the defendant paid him 

to do it. He provided other details of the murder including the use of the 

defendant’s motorcycle, where he shot the victim, the type of gun used, 

and where he got rid of the gun. He said the victim “knew too much” and 

assumed that is why the defendant hired him to do the job. 

Upon his fiancée’s urging, the friend met with the police. He agreed to 

record his conversations with the co-defendant, and was paid for doing so. 

The State entered these recordings into evidence over defense counsel’s 

objections. 

 

In the recorded conversations made in casual settings, the co-defendant 

told the informant that the defendant wanted the victim’s entire family 

dead. He explained how he felt driving away from the scene of the crime. 

He admitted that he and the defendant drank beer, smoked pot, and/or 

took Xanax, but denied that they were incoherent during the 

conversations. 

 

The trial court also allowed the State to admit several letters written by 

the defendant over defense counsel’s objections. In these letters, the 

1 This conversation occurred prior to the co-defendant’s friend becoming an 

informant. 
4

defendant references characters, Prince and Pistol G, from the defendant’s 

book Prince of Pentium. A forensic document examiner verified the 

defendant’s handwriting. 

While in custody, the defendant sent the letters to the co-defendant and 

another inmate in the same facility. They contained threats to the codefendant’s girlfriend, suggested that he was a snitch and was talking too 

much. He encouraged the co-defendant to tell the truth and admit that 

neither of them were involved in the murder. The co-defendant provided 

some of the letters to his attorney. 

 

To explain the characters referenced in the letters, the State admitted 

a portion of the defendant’s book, again over defense counsel’s objection. 

The trial court commented that the book had probative value to give 

context to the reference to Pistol G within the letters. 

The jury found the defendant guilty. He moved for a new trial, which 

the court denied. The defendant now appeals. 

We review decisions on the admission of evidence for an “‘abuse of 

discretion, limited by the rules of evidence.’” Lucas v. State, 67 So. 3d 332, 

335 (Fla. 4th DCA 2011) (citation omitted). “‘In considering a trial court’s 

ruling on admissibility of evidence over an objection based on the 

Confrontation Clause, our standard of review is de novo.’” McWatters v. 

State, 36 So. 3d 613, 637 (Fla. 2010) (citation omitted). 

• THE CO-DEFENDANT’S STATEMENTS AGAINST PENAL 

INTEREST

The defendant argues the trial court erred in admitting the codefendant’s out-of-court statements because they lacked the required 

“particularized guarantees of trustworthiness” and violated the 

Confrontation Clause. The State responds that the statements were not 

testimonial and not subject to Crawford v. Washington, 541 U.S. 36 (2004). 

It also argues the statements qualified as statements against the 

declarant’s penal interest under section 90.804(2)(c), Florida Statutes 

(2016). The statements possessed those guarantees of trustworthiness 

because they were made to a longtime friend in a personal setting and his 

descriptions matched police-gathered information. 
5

o The Confrontation Clause

In Lilly v. Virginia, 527 U.S. 116 (1999), the Court discussed hearsay 

statements in the context of the Confrontation Clause. “[T]he veracity of 

hearsay statements is sufficiently dependable to allow the untested 

admission of such statements against an accused when (1) ‘the evidence

falls within a firmly rooted hearsay exception’ or (2) it contains

‘particularized guarantees of trustworthiness’ such that adversarial testing 

would be expected to add little, if anything, to the statements reliability.” 

Id. at 124-25 (quoting Ohio v. Roberts, 448 U.S. 56, 66 (1980)). 

The Court categorized statements against penal interest: “(1) as 

voluntary admissions against the declarant; (2) as exculpatory evidence 

offered by a defendant who claims that the declarant committed, or was 

involved in, the offense; and (3) as evidence offered by the prosecution to 

establish the guilt of an alleged accomplice of the declarant.” Id. at 127.

The Court indicated that statements which fall within category (3) “are 

presumptively unreliable,” causing them to fall outside the realm of firmly 

rooted exceptions to the hearsay rule. Id. at 131. And when they do so, 

the statements “must possess indicia of reliability by virtue of [their] 

inherent trustworthiness” to be admitted. Id. at 138. The Court held that 

the statements in Lilly lacked the requisite indicia of reliability. Id. at 148-

149.

The Court would subsequently carve out a new set of rules for those 

statements deemed testimonial. See Crawford, 541 U.S. 36. Reviewing 

the historical need and purpose for the Confrontation Clause, the Court 

would require “unavailability and a prior opportunity for crossexamination” before a testimonial statement is admitted. Id. at 68. “Where 

testimonial statements are at issue, the only indicium of reliability 

sufficient to satisfy constitutional demands is the one the Constitution 

actually prescribes: confrontation.” Id. at 68-69. 

The defendant argues the admission of the co-defendant’s statements 

to the informant violated the Confrontation Clause because the defendant 

did not have an opportunity to confront the co-defendant to fairly and 

adequately test his credibility. The State responds the statements were 

not testimonial and therefore did not violate the Confrontation Clause. 
6

“The Sixth Amendment of the United States Constitution guarantees 

that ‘[i]n all criminal prosecutions, the accused shall enjoy the right . . . to 

be confronted with the witnesses against him.’” Camacho v. State, 192 So. 

3d 568, 570 (Fla. 4th DCA 2016) (citation omitted). “The Confrontation 

Clause bars ‘admission of testimonial statements of a witness who did not 

appear at trial unless he was unavailable to testify, and the defendant had 

had a prior opportunity for cross-examination.’” Edwards-Freeman v. 

State, 93 So. 3d 497, 499 (Fla. 4th DCA 2012) (citations omitted). However, 

“[w]hen a statement is not testimonial it ‘is not subject to the Confrontation 

Clause.’” Brown v. State, 69 So. 3d 316, 319 (Fla. 4th DCA 2011) (citation 

omitted). 

In determining if statements are testimonial, a court should look at 

whether the statements: 

(1) ‘were made under circumstances which would lead an 

objective witness reasonably to believe that the statement 

would be available for use at a later trial,’ (2) ‘establish or 

prove past events potentially relevant to later criminal 

prosecution,’ or (3) were ‘procured with a primary purpose of 

creating an out-of-court substitute for trial testimony.’ 

Jackson-Johnson v. State, 188 So. 3d 133, 141 (Fla. 4th DCA 2016) 

(citations omitted). “Most courts agree that a spontaneous statement to a 

friend or family member is not likely to be testimonial under Crawford.” 

Brown, 69 So. 3d at 319. 

Here, the circumstances surrounding the co-defendant’s initial 

statement to the informant indicate they were not testimonial. The codefendant and informant had a long-standing friendship. They grew up in 

the same neighborhood and hung out together. The co-defendant initially

voluntarily confessed to his friend before he began working for the police. 

The co-defendant was not interrogated and did not make the statements 

in anticipation of litigation. 

The subsequent recorded conversations were at the behest of law 

enforcement, but the co-defendant was unaware of that fact. Recording 

the statements for possible later use in police investigations does not 

automatically make them testimonial. Jackson-Johnson, 188 So. 3d at 

141. 
7

The co-defendant made the statements in confidence within personal 

settings. He did not know the informant was recording him; he did not 

know the informant was working with the police. He made the statements 

on his own initiative, giving details of the murder without any prompting. 

In short, the statements were spontaneous; not testimonial. See JacksonJohnson, 188 So. 3d at 133. Because these statements were not 

testimonial, Crawford does not apply. 

But, “[w]here nontestimonial hearsay is at issue, it is wholly consistent 

with the Framers’ design to afford the States flexibility in their development 

of hearsay law . . . as would an approach that exempted such statements 

from Confrontation Clause scrutiny altogether.” Crawford, 541 U.S. at 68. 

Enter Florida law on non-testimonial statements against penal interest. 

o Non-Testimonial Statements Inculpating the Defendant

The defendant initially sought to exclude the co-defendant’s statements 

in their entirety, but the motion also suggested the court extricate the 

inculpating statements against the defendant from the inculpating 

statements against the co-defendant. 

In supplemental briefing, the defendant specifically argues the court 

erred in not redacting the statements inculpating the defendant. The State 

responds that: (1) the issue is unpreserved; (2) the statements are 

inextricably intertwined and were necessary to explain the crime to the 

jury; and (3) the defense objection was forfeited due to the defendant’s 

wrongdoing in threatening the co-defendant through his letters, causing 

his unavailability. 

We disagree with the State that the issue was unpreserved although we 

admit the defendant has been more focused on the redaction issue in his 

supplemental briefing. This brings us to the merits of the defendant’s 

argument. 

The hearsay exception for statements against penal interest can be 

found in section 90.804(2)(c), Florida Statutes, which provides:

c) Statement against interest.—A statement which, at the time 

of its making, . . . tended to subject the declarant to liability 

or to render invalid a claim by the declarant against another, 

so that a person in the declarant’s position would not have 

made the statement unless he or she believed it to be true.
8

Here, the co-defendant was unavailable because he refused to testify in 

the middle of trial and recanted his prior confession and proffered 

testimony. Some of his statements were self-inculpating. Those 

statements fit within section 90.804(2)(c). But the declarant’s other 

statements inculpated the defendant. It is the admission of those 

statements2 that created the error. 

Our supreme court addressed statements against penal interest in 

Brooks v. State, 787 So. 2d 765 (Fla. 2001). There, the defendant argued 

the court erred in admitting a co-defendant’s statements to investigators 

which inculpated the defendant. Id. at 770. Specifically, the codefendant’s statement placed the defendant in the car with the codefendant and victim on the night of the murders. Id. at 774.

The supreme court indicated that “accomplices’ confessions that 

inculpate a criminal defendant are not within a firmly rooted exception to 

the hearsay rule. . . .” Id. at 775. For this reason, it is “highly unlikely 

that a prosecutor will be able to establish ‘particularized guarantees of 

trustworthiness.” Id. at 776 (citing Charles W. Ehrhardt, Florida Evidence

§ 804.4 (2000 ed.)). 

The court held it was error to admit the statements because they “were 

predominately self-serving in attempting to shift blame, and thus lacked 

the necessary ‘guarantees of trustworthiness.’” Id. at 777. Indeed, “a 

nontestifying codefendant or accomplice’s confession or inculpatory 

statement which also implicates the defendant should only be admitted if 

it ‘sensibly and fairly can be redacted to include only those statements 

which are solely self-inculpatory.’” Id. at 775 (emphasis added) (citing 

Franqui v. State, 699 So. 2d 1332, 1339 (Fla. 1997) (Anstead, J., 

concurring in part and dissenting in part)). 

Recently, we held that an unavailable co-defendant’s statement against 

interest was admissible, but only to the extent the statement was self2 While most of the recorded conversations had little to do with the murder and 

were redacted, the co-defendant reconfirmed many of the details that he had told 

his friend before law enforcement became involved. He was inconsistent in some 

of the facts however; e.g., what he was paid, his relationship with the defendant, 

and why he shot the victim. The defendant had the opportunity to, and did,

cross-examine the informant extensively regarding the co-defendant’s drug use 

and inconsistent statements. 
9

inculpating. That part of the statement that inculpated the defendant was 

inadmissible unless the statements were inextricably intertwined. 

Moscatiello v. State, 247 So. 3d 11, 21 (Fla. 4th DCA 2018)3 (discussing 

Brooks v. State, 787 So. 2d 765 (Fla. 2001)). 

In Moscatiello, we noted our two prior decisions, which held the entirety 

of a co-defendant’s statement admissible, including parts that inculpated 

the defendant. Neither of those opinions discussed whether those nonselfinculpating statements should be redacted. See Machado v. State, 787 So. 

2d 112 (Fla. 4th DCA 2001); see also Brown v. State, 69 So. 3d 316 (Fla. 

4th DCA 2011). For this reason, we distinguished those cases. 

Machado predated our supreme court’s decision in Brooks, but on 

rehearing found Brooks factually distinguishable. Brown also determined 

Brooks to be factually distinguishable because the statements in Brooks

had been made to law enforcement, but the statements in Brown had been 

made to a friend, thereby providing the requisite “particularized

guarantees of trustworthiness.” Brown, 69 So. 3d at 319. 

Brooks used a legal pen to draw a line of demarcation in the landscape 

of admissibility between statements inculpating the declarant and 

statements inculpating another. No longer would a “particularized 

guarantees of trustworthiness” analysis permit the admission of 

statements inculpating someone other than the declarant if the statements

were not inextricably intertwined.4 As noted by the concurrence, those 

particularized guarantees serve as the basis for the hearsay exceptions 

themselves. 

3 This case is now pending in the Supreme Court of Florida. The jurisdictional 

briefs have been filed. The State has argued that Moscatiello conflicts with 

Brooks. Moscatiello v. State, 247 So. 3d 11, 21 (Fla. 4th DCA 2018) (discretionary 

jurisdiction pending SC18-1431). 

4 Our supreme court has defined “inextricably intertwined” evidence as

evidence [that] is admissible because it is a relevant and interwoven

part of the conduct that is at issue. Where it is impossible to give a 

complete or intelligent account of the criminal episode without 

reference to other uncharged crimes or bad conduct, such evidence 

may be used to cast light on the primary crime or elements of the 

crime at issue.

Wright v. State, 19 So. 3d 277, 292 (Fla. 2009).
10

After Brooks, that part of a statement that inculpates another must be 

redacted. The reasons are simple: inculpating another is not a statement 

against the declarant’s penal interest, and as Lilly instructed, such 

statements rarely have “particularized guarantees of trustworthiness.” 

Here, the co-defendant’s statements inculpating the defendant were the 

glue that held all the evidentiary pieces of the murder crime together. Yet, 

the statements were not inextricably intertwined. The statements 

concerning the co-defendant’s participation in the murder did not require 

the defendant’s payment to him or threat against him to explain the crime. 

The court erred in failing to extricate the inculpating statements against 

the defendant from the statements against the co-defendant’s penal 

interest. See Brooks, 787 So. 2d 765; Moscatiello, 247 So. 3d 11.5

o The Possibility of Forfeiture 

The State nevertheless argues the defendant forfeited his hearsay 

objection when he threatened the co-defendant’s girlfriend and family in 

letters. “The forfeiture-by-wrongdoing exception to hearsay ‘is a 

codification of the common law rule that one who wrongfully procures the 

absence of a witness from court cannot complain of the admission of the 

hearsay statement of the witness.’” Joseph v. State, 250 So. 3d 113, 120 

(Fla. 4th DCA 2018) (citation omitted). This doctrine is newly codified in 

section 90.804(2)(f), which allows the admission of “[a] statement offered 

against a party that wrongfully caused, or acquiesced in wrongfully 

causing, the declarant’s unavailability as a witness, and did so intending 

that result.” § 90.804, Fla. Stat. (2016). 

The trial court did not have the opportunity to rule on the forfeiture

issue because it denied the defendant’s motion to exclude the statements. 

Should the State again try to admit the co-defendant’s statements, the 

court can hear and rule on whether the defendant’s hearsay objection is 

forfeited. 

• THE DEFENDANT’S LETTERS AND BOOK

The defendant next argues the trial court improperly admitted 

defendant’s letters and parts of a book he authored as consciousness of 

5 We note the trial court did not have the benefit of Moscatiello, which was decided 

long after the trial. 
11

guilt. The State responds that the letters were relevant to show the 

defendant’s attempt to prevent the co-defendant from testifying, and parts 

of the book were necessary and relevant to explain character references 

within the letters. 

“A defendant’s behavior is circumstantial evidence probative of his 

consciousness of his guilt, and ultimately guilt itself, only when it can be 

said that the behavior is ‘susceptible of no prima facie explanation except 

consciousness of guilt.’” Herring v. State, 501 So. 2d 19, 20 (Fla. 3d DCA 

1986) (citation omitted). “‘Evidence of conduct . . . of the accused which 

demonstrates a consciousness of guilt is relevant since it supplies the 

basis for an inference that the accused is guilty of the offense.’” Hayward 

v. State, 24 So. 3d 17, 39 (Fla. 2009), as revised on denial of reh’g (Dec. 

10, 2009) (citation omitted). 

The defendant wrote to the co-defendant and another inmate housed in 

the same facility. He advised the other inmate that the co-defendant was 

“running his mouth,” and about to testify against him. In retaliation, he 

threatened to commit a sexual act on the co-defendant’s girlfriend. 

 

The defendant argues these letters were evidence only of an innocent 

person trying to take reasonable steps to correct an injustice. However, 

these letters collectively showed the defendant’s consciousness of guilt. He 

urged the co-defendant to recant, to tell the truth, and suggested the codefendant’s statements had been made while he was under the influence. 

He asked him to write a letter to the defendant’s attorney admitting that 

neither of them were involved in the crime. He told the co-defendant to 

say that he was just trying to impress the informant, and was trying to be 

a character in the defendant’s book. 

He attempted to influence his testimony. He told the co-defendant his 

mother did not raise him to be a rat, suggesting he should not implicate 

the defendant. His letter to the inmate indicated the co-defendant was 

“running his mouth,” which put a target on the co-defendant in a jail

facility as a snitch. He wrote that the co-defendant was lying to get a deal. 

Within these letters, the defendant referenced characters in his book. 

To understand those references, the trial court allowed the State to 

introduce parts of the book. Kirkman v. State, 233 So. 3d 456, 467 (Fla. 

2018). We see no error in the admission of the letters or the parts of the 

defendant’s book to explain the meaning of words within the letters. 
12

While the letters and book themselves may have been prejudicial, that 

prejudice must be weighed against their probative value to determine if the 

prejudice was unfair. “Unfair prejudice” has been described as “an undue 

tendency to suggest decision on an improper basis, commonly, though not 

necessarily, an emotional one.” Brown v. State, 719 So. 2d 882, 885 (Fla. 

1998) (citation omitted). This rule of exclusion “is directed at evidence 

which inflames the jury or appeals improperly to the jury’s emotions.” 

Steverson v. State, 695 So. 2d 687, 688–89 (Fla. 1997). 

Here, the letters were redacted. They were relevant to show the 

defendant’s consciousness of guilt. They explained why the co-defendant 

recanted his story. The trial court admitted only one chapter of the book 

to give context to the characters in the letters. They did not appeal to the 

jurors’ emotions. The trial court struck the perfect balance between 

admitting relevant probative evidence and the resulting prejudice to the 

defendant. 

• THE RECORDED PHONE CONVERSATION WITH THE VICTIM’S 

FATHER 

In his last issue, the defendant argues the trial court erred in admitting 

the phone conversation between the defendant and the victim’s father 

shortly after the murder. The State responds the phone conversation was 

not unfairly prejudicial because the jury understood the victim’s father 

believed the defendant was involved in the murder, and the court 

instructed the jury to disregard the father’s opinions. 

“[A] witness’s opinion as to the guilt or innocence of the accused is not 

admissible.” Martinez v. State, 761 So. 2d 1074, 1079 (Fla. 2000). “‘Any 

probative value such an opinion may possess is clearly outweighed by the 

danger of unfair prejudice.’” Id. (citation omitted). 

The defendant claims the recorded call was highly prejudicial because 

the victim’s father called him a liar five times, a punk twice, and a junkie 

once. He also adamantly conveyed his opinion of the defendant’s guilt 

throughout the phone call. 

• “You shot her. You shot her. Cause you don’t seem to care.” 

• “I heard you come up, I heard you drive away. I heard you 

shoot her.” 
13

• “Look, she was going out to meet you, she wound up dead, 

they seen a motorcycle drive away. I guess it’s you, Prince.” 

• “I know you shot her, Prince.” 

• “It’s f___ed up that you shot her.” 

We agree with the defendant that the recorded conversation including 

the victim’s father’s opinions should not have been admitted. The father’s 

comments were not probative of anything other than his opinions. The 

court’s attempt to ameliorate the prejudice through its instruction to the 

jury did not cure the prejudice caused by the recording’s admission. 

 

• A SUMMARY

In summary, we find error in the admission of the co-defendant’s 

statements that inculpated the defendant. There was no error in the 

admission of the redacted letters written by the defendant and the 

admission of part of his book. The court erred in admitting the recorded 

phone conversation between the victim’s father and the defendant. We 

cannot say these errors were harmless. State v. DiGuilio, 491 So. 2d 1129, 

1135 (Fla. 1986). 

For these reasons, we reverse and remand the case for a new trial. 

Reversed and Remanded for a new trial.

DAMOORGIAN, J., concurs. 

GROSS, J., concurs specially with opinion. 

GROSS, J., concurring specially.

I fully concur with the majority opinion and write to highlight a 

recurring problem that arises when the language of a Confrontation Clause 

analysis finds its way into case law or argument pertaining to the 

interpretation of a statutory exception to the rule against hearsay.

The rule against hearsay provides that “[e]xcept as provided by statute, 

hearsay evidence is inadmissible.” § 90.802, Fla. Stat. (2018). “This 

means that the only exceptions to the hearsay rule in Florida are the ones 
14

recognized by statutes such as sections 90.803, 90.804, and 90.805, 

Florida Statutes.” Mortimer v. State, 100 So. 3d 99, 102 (Fla. 4th DCA 

2012). Many of the traditional common law exceptions to the hearsay rule 

are contained in sections 90.803 and 90.804.

One reason that exceptions to the hearsay rule “usually are justified” 

is “that the evidence meeting the requirements of exception possesses 

special reliability (greater than hearsay generally).” McCormick’s 

Handbook of the Law of Evidence § 262 (Edward W. Cleary ed. 2d ed. 

1972). Section 90.803 exceptions “contain sufficient guarantees of 

reliability, [so] they apply even though the declarant is available to testify 

but is not called.” Charles W. Ehrhardt, Florida Evidence § 803 (2012 ed.). 

Section 90.804 exceptions “have historically been treated as not 

possessing the same reliability as the section 90.803 exceptions and are 

applicable only when there is a greater showing of need, e.g., the declarant 

is unavailable.” Id.

Evaluations of a hearsay exception under the Confrontation Clause 

of the Sixth Amendment often use language similar to the language 

providing the justification for the exception. “[H]earsay rules and the 

Confrontation Clause are generally designed to protect similar values and 

‘stem from the same roots.’” White v. Illinois, 502 U.S. 346, 353 (1992) 

(internal citations omitted).

Prior to Crawford v. Washington, 541 U.S. 36 (2004), to analyze the 

impact of the Confrontation Clause upon hearsay testimony, the Supreme 

Court adhered to the

general framework, summarized in Ohio v. Roberts, 448 

U.S. 56 (1980), that the veracity of hearsay statements is 

sufficiently dependable to allow the untested admission of 

such statements against an accused when (1) “the evidence 

falls within a firmly rooted hearsay exception” or (2) it contains 

“particularized guarantees of trustworthiness” such that 

adversarial testing would be expected to add little, if anything, 

to the statements’ reliability.

Lilly v. Virginia, 527 U.S. 116, 124–25 (1999) (emphasis supplied).

The notion of “particularized guarantees of trustworthiness” is almost 

identical to the idea of “sufficient guarantees of reliability,” which appears 

in discussions of the justification for a hearsay exception. In arguments 

for the admission of testimony under a hearsay exception, I have often 

seen the contention that the evidence should be admitted because it 
15

contains “particularized guarantees of trustworthiness,” based on the facts 

of the case.6

This argument confuses the analysis of admissibility under a hearsay 

exception. A hearsay exception exists because of “sufficient guarantees of 

reliability.” To decide admissibility under a hearsay exception, reference 

should be made to the language of the statutory exception and not to the 

more general, case-by-case approach that would admit testimony based 

upon “particularized guarantees of trustworthiness.” Such an approach 

would allow hearsay exceptions to swallow the rule against hearsay. As 

the Supreme Court noted in Crawford, the application of the Roberts 

framework quoted above, allowed courts to “routinely” admit “accomplice 

confessions implicating the accused,” “core testimonial statements that 

the Confrontation Clause plainly meant to exclude.” 531 U.S. at 63-64.

The majority opinion properly focuses on the language of section 

90.804(2)(c) to decide that the declarant’s out-of-court statement 

implicating the accused falls outside of the statutory exception. This is 

not a case where the statement tended to expose the declarant to criminal 

liability and was “offered to exculpate the accused,” so that consideration 

of “corroborating circumstances” that showed the “trustworthiness of the 

statement” would be appropriate. § 90.804(2)(c), Fla. Stat. (2018).

* * * 

Not final until disposition of timely filed motion for rehearing.

6 Another example of the confusion between a hearsay and Confrontation Clause 

issue is Phillips v. State, 238 So. 3d 845, 845-46 (Fla. 4th DCA 2018) (Gross, J., 

specially concurring). There, the trial counsel made a hearsay objection in the 

trial court but appellate counsel raised a Confrontation Clause issue on appeal, 

not the hearsay issue preserved by trial counsel’s objection.