DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

VANTAVIA B. JACKSON-JOHNSON,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D14-3602

[April 6, 2016]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm 

Beach County; Karen M. Miller, Judge; L.T. Case No. 502011CF001490C.

Michael Salnick and Lisa Viscome of Law Offices of Salnick, Fuchs & 

Bertisch, P.A., West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L. 

Melear, Assistant Attorney General, West Palm Beach, for appellee.

GERBER, J.

The defendant is a former corrections deputy who was convicted of

official misconduct, culpable negligence, and accessory after the fact. The 

convictions arose out of allegations that an inmate was allowed to leave 

his cell and attack another inmate, and that the defendant and her coworker falsified records in a failed attempt to cover up the incident.

A key piece of evidence leading to the defendant’s convictions was a 

third inmate’s statements on recorded jailhouse phone calls describing the 

incident as it occurred before him during the phone calls. The defendant 

primarily argues that the trial court erred in overruling her hearsay and 

Confrontation Clause objections to the third inmate’s statements.

We conclude the trial court did not err in overruling the objections and, 

therefore, affirm the defendant’s convictions. The third inmate’s 

statements were admissible under the spontaneous statement exception 

to the hearsay rule. Also, the third inmate’s statements were not 

testimonial. Thus, the Confrontation Clause did not bar the admission of 

the third inmate’s statements.
2

We present this opinion in three parts: (1) a summary of the state’s 

trial evidence; (2) our review of the defendant’s hearsay arguments; and 

(3) our review of the defendant’s Confrontation Clause arguments.

1. The State’s Trial Evidence

On the day of the incident, the defendant was working as the “tower

deputy” in the control tower overlooking the jail’s special confinement unit. 

Another deputy named Daniels was working as the “floor deputy” in the 

special confinement unit. The special confinement unit houses inmates 

who have a history of violence or disciplinary issues. These inmates are 

locked in individual cells for twenty-three hours per day. The deputies are 

required to complete chronological event forms and physical observation 

sheets to document the inmates’ activities in the special confinement unit.

Among the inmates housed in the special confinement unit that day 

were Taurus Turnquest and Lajuane Dunnaway.

Dunnaway testified as follows. Deputy Daniels let Turnquest out of his 

own cell without handcuffs, let him enter Dunnaway’s cell, and then closed 

the cell door. Turnquest stabbed Dunnaway and cut him. Deputy Daniels 

opened the cell door and Dunnaway backed out of the cell and into an 

open area known as the dayroom. Dunnaway yelled at Turnquest and 

Deputy Daniels.

Dunnaway then noticed a third inmate talking on the dayroom phone 

available to inmates to call persons outside the jail when permitted. A 

written notice above the phone indicates that all calls are being recorded. 

Dunnaway walked over to the third inmate and yelled, “you see what he

did, he cut me, he stabbed me,” and showed the third inmate his wounds.

While Deputy Daniels returned Turnquest to his cell, Deputy Daniels

told Dunnaway to go to the shower. While Dunnaway showered, Deputy 

Daniels mopped up the blood in front of Dunnaway’s cell and in the 

dayroom.

A deputy assigned to the kitchen that day testified as follows. She went 

to the control tower while the defendant was working as the tower deputy. 

Deputy Daniels requested from the floor that Dunnaway be let into the 

shower, which was unusual for that day of the week. The defendant 

pressed a button to open the shower door for Dunnaway.
3

A deputy assigned to the unit’s night shift that day testified that when

he delivered dinner to Dunnaway’s cell, he noticed Dunnaway’s injuries. 

Dunnaway was escorted to the infirmary.

A recreation deputy who escorted Dunnaway to the recreation yard 

earlier that morning (before the incident) testified that she did not notice 

any injuries on Dunnaway at that time.

A detective assigned to investigate Dunnaway’s injuries obtained the 

third inmate’s recorded phone calls from around the time of the incident.

When the state sought to introduce the third inmate’s recorded phone 

calls, the defendant objected on two grounds: (1) hearsay; and (2) violation

of the Confrontation Clause.

On the Confrontation Clause objection, the defendant argued that the 

third inmate’s statements on the recorded phone calls were testimonial, 

the state had not shown that the third inmate was unavailable for trial, 

and the state did not make the third inmate available at trial for crossexamination.

The prosecutor responded that the third inmate’s statements on the 

recorded phone calls were admissible under what the prosecutor described 

as the “present sense impression” exception to the hearsay rule. The 

prosecutor also responded that the third inmate’s statements on the 

recorded phone calls were not testimonial and, therefore, did not violate 

the Confrontation Clause.

The trial court overruled the defendant’s objections. 

The detective then testified about the third inmate’s recorded phone 

calls from the dayroom. The calls were made to the third inmate’s friends 

and family.

One call occurred from 1:38:35 pm to 1:53:33 pm. During this call, the 

background contained a lot of noise – the sounds of yelling and shoes 

scuffling across the floor. Also, the following conversation can be heard

between the third inmate and the other person to whom he was speaking 

on the phone:

THIRD INMATE: S--- getting real here in the box. Dep going 

to open the door and let these two n------ bump.

OTHER PERSON: [Unintelligible].
4

THIRD INMATE: Hold on, I was just watching this fight real 

quick.

OTHER PERSON: Are they bumping?

THIRD INMATE: Yeah, here in the box.

A few seconds later, Dunnaway can be heard yelling in the background.

Another call occurred from 1:58:30 pm to 2:13:28 pm. During this call, 

the third inmate can be heard saying to Deputy Daniels: “Hey, Six Nine, 

there’s some blood right there, Six Nine.” (“Six Nine” was the inmates’ 

nickname for Deputy Daniels, referring to his height.)

The evidence also reflected that just before the third inmate’s phone

call began at 1:38:35 pm, a short call was made from the floor deputy’s

phone to the control tower at 1:38:17 pm. Another short call was made 

from the floor deputy’s phone to the control tower at at 1:53:26 pm, just 

before the third inmate’s phone call ended at 1:53:31 pm. The state argued 

that the first call was Deputy Daniels calling the defendant to “get his 

cover” before the fight, and the second call was Deputy Daniels requesting 

the defendant to open the shower door for Dunnaway.

The detective obtained the defendant’s and Deputy Daniels’ 

chronological event forms and physical observation sheets from the day of 

the incident. The detective compared those documents against the 

timeline of actual events determined from the recorded phone calls and 

the rest of the investigation. The detective concluded that the defendant’s 

and Deputy Daniels’ recorded entries were inconsistent with the timeline 

of actual events because neither reported the incident involving Turnquest 

and Dunnaway. In the detective’s probable cause affidavit, the detective 

alleged that the defendant’s recorded entries were false, and that the 

defendant

failed to report or record the incident she observed which 

contributed to the injury of another person. [The defendant] 

knew a violent crime had been committed; therefore, her 

actions were inappropriate in connection with her official 

duties . . . . [Her] actions showed a gross and careless 

disregard of the safety and welfare of Dunnaway and other 

inmates housed in the unit.

 
5

The state ultimately charged the defendant with official misconduct, 

culpable negligence exposing a person to injury, and accessory after the 

fact to official misconduct. The jury found the defendant guilty on those

counts. This appeal followed.

2. Our Review of the Defendant’s Hearsay Objection

We review de novo the question of whether the third inmate’s 

statements on the recorded jailhouse phone calls were admissible under 

an exception to the hearsay rule. See Browne v. State, 132 So. 3d 312, 

316 (Fla. 4th DCA 2014) (“The standard of review for admissibility of 

evidence is abuse of discretion, limited by the rules of evidence. . . . Thus, 

whether evidence is admissible . . . under an exception to the hearsay rule 

is a question of law . . . subject to the de novo standard of review.”) 

(citations, quotation marks, and brackets omitted).

The exception to the hearsay rule at issue here is section 90.803(1), 

Florida Statutes (2014), otherwise known as the spontaneous statement 

exception to the hearsay rule. The spontaneous statement exception 

provides that hearsay is admissible if it is:

A spontaneous statement describing or explaining an event or 

condition made while the declarant was perceiving the event 

or condition, or immediately thereafter, except when such 

statement is made under circumstances that indicate its lack 

of trustworthiness.

§ 90.803(1), Fla. Stat. (2014).

The defendant argues that the spontaneous statement exception does 

not apply here for four reasons:

(1) the third inmate’s statements — “S--- getting real here in the box. 

Dep going to open the door and let these two n------ bump.” — were 

not describing an event which the third inmate was perceiving, but 

were in response to a statement by Deputy Daniels;

(2) the third inmate’s statement — “Yeah, here in the box.” — was not 

spontaneous because it was in response to the question “Are they 

bumping?” from the other person on the phone;

(3) the third inmate’s pointing out blood to Deputy Daniels in the 

context of the statement “Hey, Six Nine, there’s some blood right 

there, Six Nine,” was not describing an event which the third inmate 
6

was perceiving, but rather was describing the incident after it 

occurred; and

(4) the third inmate’s mention of “Six Nine,” a nickname for Deputy 

Daniels, in the context of the statement “Hey, Six Nine, there’s some 

blood right there, Six Nine,” was not a statement about what the 

third inmate was perceiving, but was a statement of identification.

We disagree with the defendant’s arguments. We address each in turn.

First, the record does not support the defendant’s argument that the 

third inmate’s statements, “S--- getting real here in the box. Dep going to 

open the door and let these two n------ bump,” were in response to a 

statement by Deputy Daniels. At best, the record shows that Deputy 

Daniels used the floor deputy’s phone to call the control tower at 1:38:17

pm, just seconds before the third inmate’s phone call began at 1:38:35 

pm. The record does not indicate what, if anything, Deputy Daniels said 

during his phone call. Moreover, a reasonable inference could be made

that the third inmate’s statements were not in response to some statement 

by Deputy Daniels. Rather, a reasonable inference could be made that the 

third inmate’s statements were describing his perception of Deputy 

Daniels allowing Turnquest out of his cell and into Dunnaway’s cell to 

fight. As such, the third inmate’s statements qualify as “[a] spontaneous 

statement describing or explaining an event or condition made while the 

declarant was perceiving the event or condition.” § 90.803(1).

Second, the defendant’s argument that the third inmate’s statement, 

“Yeah, here in the box,” was not spontaneous because it was in response 

to the question “Are they bumping?” from the other person on the phone, 

has been rejected by the Florida Supreme Court, one of our sister courts, 

and this court. See Deparvine v. State, 995 So. 2d 351, 370 n.20 (Fla. 

2008) (“We reject [the defendant’s] argument that responses to questions

cannot qualify as spontaneous statements. Responses to questions do not 

necessarily diminish contemporaneousness.”); State v. Adams, 683 So. 2d 

517, 521 (Fla. 2d DCA 1996) (“[T]he fact that the [defendant] made the 

statement in response to the neighbor’s questions does not, on this record, 

diminish its spontaneity.”); McGauley v. State, 638 So. 2d 973, 974 (Fla. 

4th DCA 1994) (“[A]n answer to a question can still be spontaneous.”).

Third, the third inmate’s pointing out blood to Deputy Daniels in the 

context of the statement “Hey, Six Nine, there’s some blood right there, Six 

Nine,” is not an attempt to describe the incident after it occurred, but 

merely was describing the event which the third inmate was perceiving, 

that is, the existence of blood on the floor. § 90.803(1).
7

Fourth, the third inmate’s identification of Deputy Daniels as “Six Nine” 

in the context of the statement “Hey, Six Nine, there’s some blood right 

there, Six Nine,” also was admissible under the spontaneous statement 

exception. That is because the Florida Supreme Court, in Deparvine, held 

that a statement of identification may be admissible if it is part of a 

contemporaneous statement otherwise admissible under the spontaneous 

statement exception. 995 So. 2d at 371. That holding, and its application 

to this case, is better understood by examining Deparvine’s facts and 

reasoning in detail.

In Deparvine, a murder victim’s mother testified that she received a 

phone call from the victim in the hours before the murder. The mother 

heard the sound of a car running, and asked the victim whether she was 

in the car. The victim responded, “I’m following Rick [her husband] and 

the guy that bought the truck [the defendant].” The defendant conceded 

that the implication asserted in the statement that the victim was following 

her husband was admissible under the spontaneous statement exception.

However, the defendant contended that the victim’s statement that she 

also was following “the guy that bought the truck” was a statement of 

identification, which indicated reflective thought. Our supreme court 

rejected this contention, reasoning as follows:

[T]he fact that [the victim] explained her contemporaneous 

status in terms of the presence of her husband and the other 

person riding in the truck, whose identities were known from 

past experiences, does not lessen the spontaneity or reliability 

based thereon. We conclude that any reflection on identity, if 

it could even be called reflection, is not the type of reflection 

that the rule would limit. Of course there should be a concern 

with reflection on facts indicating a lapse of time wherein the 

declarant had the opportunity to reflect on a past event or 

condition perceived. This may even encompass the exclusion 

of a declaration on identity where the facts indicate that the 

declarant was referring to a past event and had the 

opportunity to reflect on who the person was in that event. 

However, in [this] case, [the mother’s] testimony indicates that 

[the victim] simply and spontaneously blurted out that she 

was then “following Rick and the guy that bought the truck” 

as a contemporaneous report and description of her present 

circumstances.

. . . .
8

Thus, we conclude that the trial court did not err in 

introducing [the victim’s] statement that she was “following 

Rick and the guy that bought the truck” as part of a 

contemporaneous statement admissible under the 

spontaneous statement exception in the evidence code.

Id. at 370-71 (footnote with omitted).

Deparvine’s reasoning applies here. The fact that the third inmate 

identified Deputy Daniels in the statement, “Hey, Six Nine, there’s some 

blood right there, Six Nine,” does not lessen the spontaneity or reliability 

based thereon. Any reflection on Deputy Daniels’ identity, “if it could even 

be called reflection, is not the type of reflection that the rule would limit.” 

Id. at 370. Thus, the third inmate’s identification of Deputy Daniels in the 

statement, “Hey, Six Nine, there’s some blood right there, Six Nine,” was 

merely a contemporaneous description of what he saw while speaking on 

the dayroom phone.

3. Our Review of the Defendant’s Confrontation Clause Objection

“In considering a trial court’s ruling on admissibility of evidence over 

an objection based on the Confrontation Clause, [the] standard of review

is de novo.” McWatters v. State, 36 So. 3d 613, 637 (Fla. 2010) (citation 

and internal quotation marks omitted).

The Sixth Amendment’s Confrontation Clause provides that, “[i]n all 

criminal prosecutions, the accused shall enjoy the right . . . to be 

confronted with the witnesses against him.” U.S. Const. amend. VI.

The Sixth Amendment’s application to hearsay was re-examined by the 

United States Supreme Court in the landmark decision of Crawford v. 

Washington, 541 U.S. 36 (2004). As expressed through the late Justice 

Scalia’s majority opinion, the Court held:

Where nontestimonial hearsay is at issue, it is wholly 

consistent with the Framers’ design to afford . . . an approach 

that exempted such statements from Confrontation Clause 

scrutiny altogether. Where testimonial evidence is at issue, 

however, the Sixth Amendment demands what the common 

law required: unavailability and a prior opportunity for crossexamination. We leave for another day any effort to spell out 

a comprehensive definition of “testimonial.”
9

Id. at 68 (footnote omitted).

Following Crawford, the United States Supreme Court, in Davis v. 

Washington, 547 U.S. 813 (2006), sought to spell out the difference 

between nontestimonial and testimonial statements. As expressed 

through Justice Scalia’s majority opinion, the Court held:

Statements are nontestimonial when made in the course of 

police interrogation under circumstances objectively 

indicating that the primary purpose of the interrogation is to 

enable police assistance to meet an ongoing emergency. They 

are testimonial when the circumstances objectively indicate 

that there is no such ongoing emergency, and that the primary 

purpose of the interrogation is to establish or prove past 

events potentially relevant to later criminal prosecution.

Id. at 822. In footnotes, the Court added: “Our holding refers to 

interrogations because . . . the statements in the cases presently before us 

are the products of interrogations.” Id. at 822 n.1. Thus, the Court left 

open the question of “whether and when statements made to someone 

other than law enforcement personnel are ‘testimonial.’” Id. at 823 n.2

(emphasis added).

That question has been answered by the Florida Supreme Court, this 

court, and one of our sister courts, in relation to spontaneous statements 

to a friend or family member. In Franklin v. State, 965 So. 2d 79 (Fla. 

2007), the Florida Supreme Court observed:

Most courts agree that a spontaneous statement to a friend or 

family member . . . is not likely to be testimonial under 

Crawford. . . . In fact the [United States] Supreme Court even 

recognized [in Crawford] that a person who makes a casual 

remark to an acquaintance does not “bear testimony” in the 

sense that “[a]n accuser who makes a formal statement to 

government officers” does.

Id. at 91 (citing Crawford, 541 U.S. at 51; other internal citations omitted); 

see also Brown v. State, 69 So. 3d 316, 319 (Fla. 4th DCA 2011) (“Most 

courts agree that a spontaneous statement to a friend or family member 

is not likely to be testimonial under Crawford.”) (citing Franklin, 965 So. 

2d at 91); Paraison v. State, 980 So. 2d 1134, 1137 (Fla. 3d DCA 2008)

(“As our Supreme Court has recognized, spontaneous statements to family 

or friends are not likely to be testimonial under Crawford.”) (citing 

Franklin, 965 So. 2d at 91).
10

The defendant here, however, argues that this case is distinguishable

from Franklin and its progeny because: (1) “inmates are put on notice that 

their calls are recorded . . . for purposes of police investigations”; and (2) 

the third inmate’s phone calls to his friends and family were “recorded by 

the sheriff’s office for the purpose of law enforcement reviewing for use in 

criminal prosecution.” In support of these distinctions, the defendant cites 

Crawford, 541 U.S. at 53, for the proposition that “[t]he involvement of 

government officers in the production of testimonial evidence presents the 

same risk, whether the officers are police or” other government officers 

serving an investigative and prosecutorial function.

We are unpersuaded by the defendant’s argument. We hold that an 

inmate’s spontaneous statements on recorded jailhouse phone calls, 

incriminating another person, are not automatically “testimonial” under 

the Sixth Amendment’s Confrontation Clause just because they are 

recorded for possible later use in police investigations. Rather, in 

determining whether the inmate’s statements are testimonial, a court 

should look to all of the relevant circumstances. See Michigan v. Bryant, 

562 U.S. 344, 369 (2011) (“In determining whether a declarant’s 

statements are testimonial, courts should look to all of the relevant 

circumstances.”). Those circumstances include, but are not limited to,

whether the inmate’s 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,” Crawford, 541 U.S. 

at 52; (2) “establish or prove past events potentially relevant to later 

criminal prosecution,” Davis, 547 U.S. at 822; or (3) were “procured with 

a primary purpose of creating an out-of-court substitute for trial 

testimony,” Bryant, 562 U.S. at 358.

Here, considering all of the relevant circumstances, we conclude that 

the third inmate’s spontaneous statements on the recorded jailhouse 

phone calls were nontestimonial. The third inmate’s statements: (1) were 

not made under circumstances which would lead an objective witness 

reasonably to believe that the statements would be available for use at a 

later trial; (2) did not establish or prove past events potentially relevant to 

later criminal prosecution; and (3) were not procured with a primary 

purpose of creating an out-of-court substitute for trial testimony. Rather, 

the third inmate’s statements to his friends and family were merely

spontaneous descriptions of the incident while the third inmate was 

perceiving the incident. It was mere happenstance that the third inmate 

was describing the incident on recorded jailhouse phone calls.
11

Our conclusion that the third inmate’s statements were nontestimonial

is consistent with the single Florida Supreme Court case holding that the 

admission of an inmate’s recorded jailhouse phone calls, including other 

persons’ statements incriminating the inmate, does not violate the 

Confrontation Clause. See Twilegar v. State, 42 So. 3d 177, 198 (Fla. 

2010) (reasoning that the inmate “was a knowing and active participant in 

the recorded conversations and . . . had ample opportunity to refute or 

contradict any of the statements that were adverse to his interests; 

instead, he acquiesced in the statements”).

Our conclusion also is consistent with our previous cases in which we 

have held that a person’s actions or statements are not testimonial merely 

because those statements were recorded by law enforcement. See State v. 

Johnson, 128 So. 3d 237, 239 (Fla. 4th DCA 2013) (video of a drug 

transaction involving the defendant and a confidential informant did not 

involve a statement made after the crime to prove a past event, but 

depicted the criminal act itself, and so was not testimonial); Bowens v. 

State, 80 So. 3d 1056, 1057-58 (Fla. 4th DCA 2012) (defendant’s friend’s 

statements, which were recorded while the defendant and his friend were 

conversing in patrol car, were nontestimonial; the conversation was not 

instigated or facilitated by any law enforcement officer or other person with 

the primary purpose of collecting evidence for criminal prosecution; 

instead, it was a spontaneous conversation that happened to have 

occurred within the range of an audio recorder); Ferrer v. State, 2 So. 3d 

1111, 1112 (Fla. 4th DCA 2009) (defendant’s statements to his 

codefendant on a recorded conversation at the police station were not 

testimonial).

Our conclusion also is consistent with cases from federal appellate 

courts which have rejected the adoption of a categorical rule that

statements on inmates’ recorded jailhouse telephone calls are testimonial, 

merely because correctional institutions record outgoing telephone calls 

and notify the participants that their conversations are being recorded. 

United States v. Jones, 716 F.3d 851, 856 (4th Cir. 2013); United States v. 

Castro–Davis, 612 F.3d 53, 65 (1st Cir. 2010). Of those two cases, Jones

contains the more thorough reasoning:

[W]e reject the proposition advanced by [the defendant] 

that a declarant’s knowledge that he is being recorded is 

dispositive. Even if [the co-defendants] were aware that the 

prison was recording their conversation, a declarant’s 

understanding that a statement could potentially serve as 

criminal evidence does not necessarily denote “testimonial” 

intent.
12

Put another way, just because recorded statements are 

used at trial does not mean they were “created for trial.” As 

with 911 emergency services, a hospital, or a business, a 

prison has a significant institutional reason for recording 

phone calls outside of procuring forensic evidence – i.e., 

policing its own facility by monitoring prisoners’ contact with 

individuals outside the prison. To adopt the rule [the 

defendant] proposes would require us to conclude that all 

parties to a jailhouse phone call categorically intend to bear 

witness against the person their statements may ultimately 

incriminate.

[The co-defendants] certainly did not speak on these phone 

calls for that reason. Nowhere in these casual conversations

. . . do either [co-defendant] demonstrate an intent to “bear 

witness” against [the defendant]. In fact, any incriminating 

statement made during these conversations tended to also 

incriminate them . . . .

716 F.3d at 856 (emphasis added; internal citation omitted).

Conclusion

The trial court did not err in overruling the defendant’s hearsay and 

Confrontation Clause objections. The third inmate’s statements, 

describing the incident as it occurred before him during the recorded 

jailhouse phone calls, were admissible under the spontaneous statement 

exception to the hearsay rule. Also, the third inmate’s spontaneous 

statements on the recorded jailhouse phone calls were not testimonial. 

Thus, the Confrontation Clause did not bar the admission of the third 

inmate’s spontaneous statements on the recorded jailhouse phone calls.

The defendant also argues that the court erred in three other respects: 

(1) denying her request to discharge the jury when a juror was excused 

and replaced with the alternate after the court swore the jury but before 

the parties presented opening statements; (2) denying her request to give 

a special jury instruction on circumstantial evidence; and (3) denying her 

motion for judgment of acquittal. We affirm on these arguments without 

further discussion.

Affirmed.

MAY and DAMOORGIAN, JJ., concur.
13

* * *

Not final until disposition of timely filed motion for rehearing.