“Opening the Door Theory” to Improper Evidence Rejected
In Redd v. State, 49 So. 3d 329 (Fla. 1st DCA 2010), the defendant was convicted of trafficking in cocaine when police found cocaine in three locations in his house. In reversing the conviction, the court set forth an analysis of the prosecution’s often used argument that the Defendant “opened the door” to otherwise inadmissible evidence.
A bag containing cocaine was in plain view inside an open cabinet in the laundry room. In order to see this cocaine however, one had to enter the room and walk in front of the cabinet.
Also in the laundry room was a box containing trophies and plaques won by the defendant. In the box was another plaque with the names of one of the other occupants of the house. In addition, one of the other occupants had clothing in the laundry room.
The police also found a second bag containing 84 grams of a cocaine mixture in the dining room. This cocaine however, was hidden in a basket underneath an artificial plant. There was a smaller baggie containing suspected cocaine in a drawer of the china cabinet in the dining room.
Finally, the police found 5 small baggies, two of which contained cocaine residue. One of the baggies contained the defendant’s fingerprint. However, there was no indication that the fingerprint was on a baggie that contained cocaine residue. In this particular dresser, the police also found other items associated with the defendant, including a high school diploma.
The issue in the case was whether the defendant possessed the quantifies of cocaine found in the other rooms to support the charge of trafficking in cocaine.
The state’s theory was that the defendant was in constructive possession of the contraband. Therefore, the state had to prove that the defendant had dominion and control over the contraband, knew of its presence and knew of its illicit nature.
The appellate court noted that because the defendant did not have exclusive control over the premises where the contraband was found, the mere presence of the cocaine was insufficient to establish the defendant’s knowledge and ability to control it
The court reversed the conviction because the state failed to prove the defendant’s constructive possession.
Defense counsel, in cross examination of the officers, asked why one of the other defendants was not charged with possession of cocaine even though a small amount of cocaine was found in plain sight of that persons’ bedroom.
In order to pursue this line of inquiry the defense counsel asked the following question of the police officer.
At that point [when Thomas was charged], what did you know about Dennis Redd that you didn’t know about . . . Thomas in regard to possession of cocaine?”
In response to this question, the police officer answered as follows:
Possession of the cannabis on Mr. Thomas was a result. Post-Miranda Officer Shallar spoke with [Thomas] and he was very up front, very adamant that all the marijuana we originally found in the first room, he took ownership of what was his and that’s the reason. Based on his confession, he admitted [that] all the marijuana was his. The cocaine was just a residual amount on the dresser.
Defense counsel then asked the officer, “[W]hat about the cocaine in other parts of the house?”
To this, Sergeant Byrd responded:
[A]ll the identifiable material that was found in and around those products of cocaine either linked back to [Appellant], Bobbi Morris or possibly Ben Ratliff. So to charge [Thomas] with something on the other end of the house that I had no evidence of – any kind of evidence, a name, a document, a fishing award, I think would have been a push to charge him with it in my opinion.
The state attorney on re-direct, solicited from Sergeant Byrd the nature of Mr. Thomas’ cooperation. Over defense counsel’s hearsay objection, Sergeant Byrd testified that he had learned from Officer Shallar that Thomas reported the location of the cocaine in the artificial plant. Also over defense counsel’s objections, Byrd testified that Thomas told Shallar that the cocaine belonged to Appellant and Ratliff.
The appellate court then discussed the concept of opening the door. It recognized that the concept allows for the admission of otherwise inadmissible evidence when it is necessary to “qualify, explain, or limit evidence previously admitted.” In support of this, the court cited to Rodriguez v. State, 753 So. 2d 29, 42 (Fla. 2000). The appellate court went on to state, “This evidentiary principle is ‘based on considerations of fairness and the truth-seeking function of a trial.” Rodriguez at 42.
The concept was further described as applying when one party’s evidence presents an incomplete picture and fairness demands the opposing party be allowed to follow up in order to clarify and make the picture complete. Brunson v. State, 31 So. 3d 926, 928 (Fla. 1st DCA 2010).
The court then goes on to analyze the importance of controlling this general concept of opening the door.
It stated, “Because fairness is the key concern of this evidentiary principle, the mere fact that testimony may be characterized as incomplete or misleading does not automatically trigger the admission of otherwise inadmissible evidence under the ‘opening the door’ rule.” Hill v. State, 933 So. 2d 667, 670 (Fla. 1st DCA 2006). TheHill case is cited for the proposition that the state is not entitled to present evidence that a defendant has committed an unrelated crime merely because the defendant’s testimony can be characterized as false or misleading.
The court noted that the state must demonstrate a legitimate need to resort to such evidence to correct a false impression. Hill v. State, 933 So. 2d 667, 670 (Fla. 1st DCA 2006), Alcantar v. State, 987 So. 2d 822, 825 (Fla. 2d DCA 2008). The court noted that if care is not taken in this regard, the opening the door rule threatens to become a pretext for the illegitimate use of inadmissible evidence and the fairness-promoting purpose of the rule would be lost.
The court went on to note that deciding whether fairness requires the admission of evidence under the opening the door principle, a court should consider the general unreliability of the inadmissible evidence. Ramirez v. State, 739 So. 2d 568, 580 (Fla. 1999). It noted that the more unreliable the evidence is, the less likely it is that fairness requires the admission of such evidence.
While the court noted that hearsay is sometimes admissible under the opening the door principle, the court must keep in mind the inherent unreliability of hearsay as a factor in considering when such hearsay evidence is to be admitted under the principle.
In considering whether to admit hearsay evidence from a co-defendant or a potential co-defendant, any inquiry as to whether such hearsay is admissible under the opening the door theory should keep in mind that such testimony is especially suspect because the co-defendant or potential co-defendant has a strong motivation to implicate others.
The court noted that for this reason, an out of court statement made by a co-defendant is “even less credible than ordinary hearsay.” Ramirez v. State, 739 So. 2d 568 at 580.
The court ruled that the defense did not open the door to allow the double hearsay testimony which the state elicited over objection during re-direct of Sergeant Byrd.
In essence, the inadmissible hearsay went to the crux of the case for the state.
In this regard the court stated:
Thomas’ double hearsay statement that Appellant owned the cocaine was the main evidence that connected Appellant to the cocaine in the dining room. Other than the uncorroborated hearsay from Thomas, the State’s case was entirely circumstantial. Thus, without Thomas’ erroneously admitted statements, Appellant’s motion for judgment of acquittal would have been subject to the “special standard of review” governing circumstantial cases. See State v. Law, 559 So. 2d 187, 188 (Fla. 1989). That is, the State would had been required to produce some evidence inconsistent with the defendant’s reasonable hypothesis of innocence.
Without Thomas’ statements, the state would not have been able to prove its case of trafficking in over 28 grams.