author: CANADY, C.J.

text:
    Gabriel Brian NOCK, Petitioner, v. STATE of Florida, Respondent.
    No. SC17-472
    Supreme Court of Florida.
    November 1, 2018
    Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, Fifteenth Judicial Circuit, West Palm Beach, Florida, for Petitioner
    Pamela Jo Bondi, Attorney General, Tallahassee, Florida, Celia Terenzio, Bureau Chief, and Don M. Rogers, Assistant Attorney General, West Palm Beach, Florida, for Respondent
   CANADY, C.J.

In this case, we consider an issue regarding the rule of completeness codified in the Florida Evidence Code and a related issue concerning the rule of evidence authorizing the impeachment of hearsay declarants. This Court granted jurisdiction to review the decision of the Fourth District Court of Appeal in Nock v. State , 211 So.3d 321 (Fla. 4th DCA 2017), in which the district court certified conflict with the Second District's decision in Foster v. State , 182 So.3d 3 (Fla. 2d DCA 2015), on the latter issue. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

Specifically, two issues are presented on review: (1) whether a defendant is permitted to require the State under section 90.108(1), Florida Statutes (2014)-the statutory rule of completeness-to introduce into evidence the entire video recording of the defendant's statement to police when the State has questioned a detective on direct examination concerning inculpatory statements of the defendant without introducing any portion of the recording of the defendant's statement and (2) whether the State is permitted to impeach a defendant under section 90.806(1), Florida Statutes (2014)-which authorizes attacking the credibility of a hearsay declarant-when the defendant elicits from the detective on cross-examination exculpatory portions of the defendant's statement to the police.

We hold that section 90.108(1) does not apply unless a written or recorded statement is introduced into evidence. We also hold that a defendant is subject to impeachment under section 90.806(1) whenever the defendant introduces through cross-examination hearsay exculpatory statements of the defendant. We approve the decision of the Fourth District in Nock , and we disapprove the decision of the Second District in Foster on the conflict issue.

BACKGROUND

In the case on review, "[a] jury found [Nock] guilty of first degree murder while engaged in the commission of a robbery and tampering with physical evidence." Nock , 211 So.3d at 323. The trial court entered judgment in accordance with the guilty verdicts and "sentenced [Nock] to life imprisonment with a concurrent term of 120 months." Id. On appeal from the conviction and sentence, the Fourth District set out the facts of the crimes:

The evidence revealed that the victim, a sixty[-]eight-year-old retired man, took [Nock], a twenty-seven-year-old man, home with him from the beach. When the victim did not show up later that day for a planned dinner, the victim's friend went to his house. There, he discovered the victim lying face down in the kitchen.
A detective arrived at the scene and spoke to witnesses, who saw the victim eating with a younger man on his back porch earlier that day. A medical examiner determined the victim had extensive injuries to his neck consistent with pressure being applied to the area. He questioned whether it was horseplay or erotic choking, but determined more force was likely used to cause the victim's death.
During the investigation, law enforcement discovered videos showing [Nock] using the victim's credit card at various Broward County stores. Surveillance videos showed the victim's car at locations where the card was used. [Nock] actually gave his phone number to a cashier while using the victim's credit card.
Law enforcement obtained a pen-register/trap and trace order to access information concerning [Nock's] cell phone, and an order specifically authorizing the use of real time cellular site information ("CSLI") to track the cell phone. Six days after the victim's death, a Broward detective was notified that [Nock's] cell phone had been turned on for the first time in three days. The cell phone signal was tracked to South Beach.
Broward law enforcement traveled to South Beach in unmarked police cars. Using a still photo of [Nock] from a surveillance video, they located him. They flagged down a Miami Beach police officer, who detained [Nock].
When the detective arrived, he introduced himself to [Nock], who responded by asking whether he was being approached about the car or the warrant out of Delaware. The detective observed [Nock] in possession of a tote bag with the victim's initials on it. The detective saw the victim's business cards, credit cards, car keys, and a lap top computer inside the tote bag. He confirmed [Nock's] cell phone as the one they were tracking and noted [Nock's] resemblance to the still photo.
Broward law enforcement then took [Nock] to their office where he gave a Mirandized statement to the detective. Neither party introduced the video recording of the interrogation into evidence. Instead, the State called the detective to testify about [Nock's] statement.
On direct examination, the detective testified that [Nock] initially stated he did not know the victim and he had bought all the items from someone on the beach. [Nock] later acknowledged he knew the victim. The detective testified: "[Nock] put his head down and shook his head and said, he wasn't suppose[d] to die, it wasn't suppose[d] to happen this way, and then he began telling me more details about what had happened."
[Nock] told the detective that he left the beach with the victim, who was going to pay him for sex. The victim had a wrestling fetish and asked [Nock] to engage in "wrestling moves" where he would put the victim in a headlock until he "tap[ped] out," indicating that the move was too forceful. This activity first occurred upstairs in the victim's home. [Nock] then took the victim's wallet and credit cards before going downstairs.
In the kitchen, [Nock] again put the victim in a headlock, but this time the victim collapsed. [Nock] claimed the victim never tapped out. He became scared when he could not wake the victim. He then poured bleach around the kitchen and living room to cover up his presence, grabbed whatever items he could, and left in the victim's car.

Id. at 322-23 (some alterations in original). The Fourth District also set out the following relevant information regarding Nock's trial:

[Prior to trial, Nock] filed a motion [in limine] seeking to require the State to admit the entire video recording of [Nock's] statement into evidence, under the best evidence rule and the [statutory] rule of completeness. The trial court denied the request, specifically finding the rule of completeness [contained within section 90.108(1), Florida Statutes (2014),] inapplicable because the State did not offer the video into evidence. The [trial] court stated that if the desired portions of the statements were elicited when the defense cross-examined the detective, then section 90.806(1), Florida Statutes (2014), allowed the State to use [Nock's] prior convictions for impeachment.
[Nock] later renewed his rule of completeness objection during the State's direct examination of the detective; the court denied the motion. During a sidebar, the State suggested that [Nock] was free to introduce the video in his portion of the case. Rather than do so, the defense cross-examined the detective regarding the exculpatory portions of [Nock's] statement, which supported his defense of the victim's death being an accident.
As a result, the jury was later advised of [Nock's] "nine prior convictions of felonies or crimes involving dishonesty." The trial court instructed the jury that the prior crimes were not evidence of guilt and should only be used in assessing [Nock's] credibility.

Id. at 323.

Nock raised an issue before the Fourth District "concerning the detective's testimony regarding [Nock's] statement" to the police. Id. at 322. In that issue, Nock argued that "the trial court abused its discretion in denying his motion in limine and overruling his subsequent objections concerning the introduction of [Nock's] entire recorded statement." Id. at 324. Specifically, Nock argued that: "(1) the rule of completeness applie[d]" under section 90.108(1) and "(2) the trial court erred in permitting the State to impeach [Nock's] credibility with evidence of his prior felony convictions" under section 90.806(1). Id.

The Fourth District rejected each of Nock's arguments on appeal concerning the detective's testimony regarding Nock's statement to the police. Id. at 324-25. As to the first argument, the Fourth District concluded that "the trial court properly ruled the [statutory] rule of completeness inapplicable" because the State "questioned the detective on direct examination about his conversation with [Nock]" without "introduc[ing] [Nock's] recorded statement" into evidence. Id. at 324. The Fourth District explained that "the [statutory] rule of completeness does not apply when the written or recorded statement is not introduced into evidence." Id. As to the second argument, the Fourth District concluded that "the [trial] court correctly permitted the jury to learn of [Nock's] nine prior felonies and crimes of dishonesty" because "defense counsel brought out the exculpatory portions of [Nock's] statement during cross-examination of the detective." Id. at 325. The Fourth District acknowledged that the position advanced by Nock's second argument-"that he should not be subjected to impeachment through his prior felonies just because he cross-examines a witness about his statement"-is supported by the Second District's decision in Foster . Id. at 324. "There, the Second District held [that once the State introduced a portion of the defendant's statement into evidence,] the defendant was entitled to have the jury hear the remainder of his statement without placing his credibility in issue [under section 90.806(1) ]." Id. However, the Fourth District concluded that Foster is contrary to section 90.806(1), precedent of the Fourth District, and this Court's decisions in Kaczmar v. State , 104 So.3d 990 (Fla. 2012), and Huggins v. State , 889 So.2d 743 (Fla. 2004). Nock , 211 So.3d at 324-25.

The Fourth District rejected the remaining issues raised by Nock, affirmed his conviction and sentence, and certified conflict with Foster . Id. at 323-25.

Analysis

I. Completeness

We first address whether a defendant is permitted to require the State to introduce the entire video recording of the defendant's statement to the police into evidence under section 90.108(1) -the statutory rule of completeness-when the State questions a detective on direct examination about his conversation with the defendant without introducing any portion of the recording of the defendant's statement into evidence. Although this issue is not the basis of the certified conflict, we exercise our discretion to address the issue. See, e.g. , Cantor v. Davis , 489 So.2d 18, 20 (Fla. 1986) ("Once this Court has jurisdiction, however, it may, at its discretion, consider any issue affecting the case."). The standard of review is de novo. See D'Angelo v. Fitzmaurice , 863 So.2d 311, 314 (Fla. 2003).

A. The Common Law Rule of Completeness

The rule of completeness began as a common law rule of evidence. At common law, the rule of completeness provided that "the opponent, against whom a part of an utterance has been put in, may in his turn complement it by putting in the remainder, in order to secure for the tribunal a complete understanding of the total tenor and effect of the utterance." Beech Aircraft Corp. v. Rainey , 488 U.S. 153, 171, 109 S.Ct. 439, 102 L.Ed.2d 445 (1988) (alteration omitted) (quoting 7 John H. Wigmore, Evidence in Trials at Common Law § 2113, at 653 (J. Chadbourn rev. 1978) ).

The common law version of the rule of completeness permit[ted] the proponent to prove such part as he desire[d]. At common law, the opponent c[ould not] force the proponent to broaden the scope of his questioning of the witness. However, when the proponent turn[ed] the witness over to the opponent for questioning, the opponent c[ould] then elicit the other parts relevant to the same topic.

1 Kenneth S. Broun, McCormick on Evidence § 56 (7th ed. 2013) (footnote omitted).

The origins of the [common law] rule [of completeness] go back to the sixteenth century and the focus was on different parts of the same writing or statement. See Barbara E. Bergman & Nancy Hollander, Wharton's Criminal Evidence § 4:10 (15th ed. 1997). Lord Chief Justice Charles Abbott recognized the danger in admitting only a portion of a conversation in evidence, explaining "one part taken by itself may bear a very different construction and have a very different tendency to what would be produced if the whole were heard, for one part of a conversation will frequently serve to qualify and to explain the other." Id. (quoting Thomson v. Austen , 2 Dowl. & R. 358, 361 (1823) ).
A "classic example of the possibilities of distortion" when a portion of a statement is omitted is where one mentions only the last phrase of the bible quote, "The fool hath said in his heart, there is no God." McCormick on Evidence § 56 (Kenneth S. Broun, et al. eds., 6th ed. 2006) (citing 7 John H. Wigmore, Evidence in Trials at Common Law § 2094 (Chadbourn rev. 1978) ). Quoting the Bible as saying "there is no God," would "be a misleading half-truth because it divorces the quotation from its context." Id.

Carter v. State , 226 So.3d 268, 273-74 (Fla. 4th DCA 2017).

The common law rule of completeness had two purposes: (1) to ensure "that the court not be misled because portions of a statement are taken out of context" and (2) to avoid "the danger that an out-of-context statement may create such prejudice that it is impossible to repair by a subsequent presentation of additional material." Beech Aircraft Corp. , 488 U.S. at 171 n.14, 109 S.Ct. 439 (emphasis omitted); see United States v. Burns , 162 F.3d 840, 853 (5th Cir. 1998). It also had two limitations: (1) that the additional portions of the statement be "relevant" to an issue in the case and (2) that the additional portions of the statement be "necessary" to "qualify or explain the already introduced evidence allegedly taken out of context." United States v. Sutton , 801 F.2d 1346, 1369 (D.C. Cir. 1986) ; see United States v. McCorkle , 511 F.2d 482, 486-87 (7th Cir. 1975) (en banc).

Florida's common law rule of completeness applied not only to written and recorded statements but also to testimony about conversations and oral statements. See, e.g. , Morey v. State , 72 Fla. 45, 72 So. 490, 492-93 (1916) (applying the common law rule of completeness to testimony about oral statements made by the defendant); Thalheim v. State , 38 Fla. 169, 20 So. 938, 946-47 (1896) (applying the common law rule of completeness to testimony about a conversation with the defendant). In particular, Florida's common law rule of completeness applied to testimony about conversations and oral statements "when the state ... offered evidence of inculpatory statements made by the defendant, and the defendant, on cross-examination , s[ought] to show other exculpatory statements, or statements deemed exculpatory, made in the same conversation, in reference to the same subject-matter." Thalheim , 20 So. at 947 (emphasis added); accord Morey , 72 So. at 493. In such cases, the "general rule" was that

the defendant [was] entitled to have before the jury all that was said upon the subject upon the particular occasion, whether prejudicial or beneficial to him. The state having opened the door by proving a part of the conversation, it cannot close it upon the defendant, so that he cannot offer [on cross-examination] the other part of the conversation which relates to the same subject-matter. The whole conversation should be before the jury, and they should determine what weight and effect should be given to the whole conversation.

Thalheim , 20 So. at 947 ; accord Morey , 72 So. at 493 ; see also Bennett v. State , 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."). By requiring defendants to wait until cross-examination to elicit additional portions of conversations and oral statements, Florida's common law rule of completeness accounted for the "practical problem[s]" associated with contemporaneously applying the rule of completeness to testimony on direct examination about conversations and oral statements. See § 90.108, Fla. Stat. Ann. (2011) (Law Revision Council Note). These "practical problem[s]" primarily concerned the difficulty of trying to determine, in the middle of a witness examination, the nature, scope, and content of a conversation or oral statement allegedly part of or related to the witness's testimony. See id.

B. The Statutory Rule of Completeness

In 1976, the Legislature enacted the Florida Evidence Code. See ch. 76-237, Laws of Fla. (codified in ch. 90, Fla. Stat. (Supp. 1976) ). The Florida Evidence Code "replace[d] and supersede[d] existing statutory or common law in conflict with its provisions." § 90.102, Fla. Stat. (Supp. 1976); see, e.g. , Sikes v. Seaboard Coast Line R. Co. , 429 So.2d 1216, 1222 (Fla. 1st DCA 1983). This Court adopted the provisions of the Florida Evidence Code to the extent that they were procedural. In re Fla. Evidence Code , 372 So.2d 1369, 1369 (Fla. 1979) ; accord In re Amend. of Fla. Evidence Code , 404 So.2d 743, 743 (Fla. 1981).

"The [statutory] rule of completeness is codified in section 90.108" of the Florida Evidence Code. Christopher v. State , 583 So.2d 642, 645 (Fla. 1991). The "purpose" of section 90.108(1) is "to avoid the potential for creating misleading impressions by taking statements out of context." Larzelere v. State , 676 So.2d 394, 401 (Fla. 1996). Section 90.108(1) has not been substantially altered since it was enacted in 1976 and amended in 1978. Section 90.108(1) provides:

When a writing or recorded statement or part thereof is introduced by a party , an adverse party may require him or her at that time to introduce any other part or any other writing or recorded statement that in fairness ought to be considered contemporaneously. An adverse party is not bound by evidence introduced under this section.

§ 90.108(1), Fla. Stat. (2014) (emphasis added). The 1976 Law Revision Council Note to section 90.108(1) specifically comments:

This section does not apply to conversations but is limited to writings and recorded statements because of the practical problem involved in determining the contents of a conversation and whether the remainder of it is on the same subject matter. These questions are often not readily answered without undue consumption of time. Therefore, remaining portions of conversations are best left to be developed on cross-examination or as a part of a party's own case.
This treatment of conversations is in accord with Morey v. State , 72 Fla. 45, 72 So. 490 (1916), where in a criminal prosecution, when the state offered evidence of inculpatory statements made by the defendant, the court found that the defendant had the right to have placed before the jury, by means of cross-examination, the entire conversation or all statements made by the defendant at the same time and relating to the same subject matter, whether such other statements or the remainder of the conversation are exculpatory in nature.

§ 90.108, Fla. Stat. Ann. (2011) (Law Revision Council Note); see also Christopher , 583 So.2d at 646 (quoting § 90.108(1), Fla. Stat. Ann. (1979) (Law Revision Council Note) ).

Section 90.108(1) by its plain terms "only governs writings or recordings." Calloway v. State , 210 So.3d 1160, 1184 (Fla. 2017) ; accord Reese v. State , 694 So.2d 678, 683 (Fla. 1997) ; Johnson v. State , 608 So.2d 4, 9-10 (Fla. 1992), death sentences vacated on other grounds , 44 So.3d 51, 68 (Fla. 2010). Therefore, it is clear that section 90.108(1) does not apply to testimony about conversations and oral statements. Although some of our caselaw contains loose statements suggesting that section 90.108(1) is applicable when no writing or recorded statement has been introduced into evidence, see, e.g. , Calloway , 210 So.3d at 1184 ; Ramirez v. State , 739 So.2d 568, 580 (Fla. 1999) ; Reese , 694 So.2d at 683 ; Johnson , 608 So.2d at 9-10 ; Christopher , 583 So.2d at 645-46, we have never actually applied the statute in such circumstances. Instead, we have applied the common law rule of completeness to allow portions of a conversation or oral statement omitted on direct examination to be brought in on cross-examination. Of course, that is not how section 90.108(1) operates. Section 90.108(1) requires the omitted portions of the writing or recorded statement to be introduced by the party who originally introduced the writing or recorded statement, subject to a determination of fairness by the trial court. § 90.108(1), Fla. Stat.; see Larzelere , 676 So.2d at 402 ("Under a plain reading of the statute, parties may seek the introduction of other statements when those statements 'in fairness ought to be considered contemporaneously' with the introduction of the partial statement." (quoting § 90.108, Fla. Stat.) ).

"As a general rule of law, self-serving statements are inadmissible under section 90.803(18), Florida Statutes...." Kaczmar , 104 So.3d at 1000 ; accord Calhoun v. State , 138 So.3d 350, 360 (Fla. 2013). But this Court has not abandoned the common law notion-applied to testimony about conversations and oral statements-that "[w]hen the state offers in evidence a part of a confession or admission against interest, the defendant is entitled to bring out on cross-examination the entire confession or admission." Christopher , 583 So.2d at 646 (emphasis added).

C. The Statutory Rule of Completeness is Inapplicable Here

In this case, Nock filed a motion in limine prior to trial seeking to require the State to admit the entire video recording of Nock's statement to the police into evidence under section 90.108(1). The trial court denied the motion, specifically finding section 90.108(1) inapplicable because the State was not offering the recording into evidence. At trial, the State questioned the detective on direct examination about his conversation with Nock without introducing any portion of the recording of Nock's statement into evidence. Through the detective's testimony, the State introduced the inculpatory portions of Nock's statement into evidence. Nock objected during the State's direct examination of the detective and renewed his motion in limine. The trial court overruled Nock's objections and denied the renewed motion, but permitted Nock to question the detective on cross-examination about his conversation with Nock without restriction. Through the detective's testimony, Nock introduced the exculpatory portions of Nock's statement into evidence and other relevant portions of the statement. But Nock never sought to introduce the video recording of Nock's statement into evidence at any point during the trial.

The trial court did not err in denying Nock's motion in limine and overruling his subsequent objections concerning the introduction of Nock's entire recorded statement. Under this Court's precedent applying the common law rule of completeness to testimony about conversations and oral statements, Nock was entitled to introduce the exculpatory portions of Nock's statement to the police and other relevant portions of the statement on cross-examination of the detective. But Nock was not entitled to require the State to introduce the recording of Nock's statement during its direct examination of the detective under section 90.108(1). The statute was inapplicable because the State never introduced any portion of the recording into evidence. And no other legal basis has been presented for requiring the State, during its direct examination of a State witness, to introduce into evidence a video recording of the interview about which the witness gave testimony.

Nock argues that the Fourth District erred in holding that the "principles" of section 90.108(1) did not apply to the detective's testimony regarding Nock's statement to the police. Nock's argument runs up against the text of section 90.108(1). And we decline to take the text where it does not lead us. The Fourth District correctly concluded that "the trial court properly ruled the [statutory] rule of completeness inapplicable" because the State "questioned the detective on direct examination about his conversation with [Nock]" without "introduc[ing] [Nock's] recorded statement" into evidence. Nock , 211 So.3d at 324. Section 90.108(1) could not be more clear in limiting its scope to "writing[s] or recorded statement[s] ... introduced by a party." Accordingly, we expressly approve the Fourth District's conclusion that section 90.108(1)"does not apply when the written or recorded statement is not introduced into evidence." Id.

II. Impeachment

We now address whether section 90.806(1) permits the State to impeach a defendant when the defendant elicits on cross-examination of a State witness exculpatory portions of a statement made to the police by the defendant. The standard of review of this legal question is de novo. See State v. Dominique , 215 So.3d 1227, 1232 (Fla. 2017).

In Nock , the Fourth District held that a defendant is subject to impeachment whenever the defendant introduces exculpatory hearsay statements into evidence.

The Fourth District certified that its decision is in direct conflict with the decision of the Second District in Foster , which held that once the State introduces a portion of the defendant's statement into evidence, the defendant is entitled to have the jury hear the remainder of the defendant's statement without placing his or her credibility in issue under section 90.806(1). The Fourth District's decision in Nock primarily relied on this Court's decisions in Kaczmar and Huggins , which addressed section 90.806(1) ; the Second District's decision in Foster primarily relied on the concept of "opening the door." To place the issue in proper context, we review the relationship between the rule of completeness and the principle of door-opening before we consider the application of the reasoning of Kaczmar and Huggins in the present context.

A. The Statutory Rule of Completeness: A Subset of the General Principle of Door-Opening

"As an evidentiary principle, the concept of 'opening the door' allows the admission of otherwise inadmissible testimony to 'qualify, explain, or limit' testimony or evidence previously admitted." Ramirez , 739 So.2d at 579 (quoting Tompkins v. State , 502 So.2d 415, 419 (Fla. 1986) ). "The concept of 'opening the door' is 'based on considerations of fairness and the truth-seeking function of a trial.' " Id. (quoting Bozeman v. State , 698 So.2d 629, 631 (Fla. 4th DCA 1997) ); see McCrae v. State , 395 So.2d 1145, 1151-52 (Fla. 1980) (holding that a prosecutor was entitled to inquire into the exact nature of a prior felony conviction where defense counsel sought to establish that that prior conviction was inconsequential). The concept of "opening the door" is also based on "the consideration that without the fuller explication, the testimony that opened the door would be 'incomplete and misleading.' " Peterson v. State , 94 So.3d 514, 534 (Fla. 2012) (quoting Lawrence v. State , 846 So.2d 440, 452 (Fla. 2003) ); see Overton v. State , 801 So.2d 877, 900-01 (Fla. 2001) (agreeing that the State is permitted to fill in the gaps in the testimony to correct a false impression left by the defendant). Similarly, the statutory rule of completeness is based on considerations of "fairness" and "avoid[ing] the potential for creating misleading impressions by taking statements out of context." Larzelere , 676 So.2d at 401-02 (quoting Charles W. Ehrhardt, Florida Evidence § 108.1 (1995 ed.) ).

"The phrase 'opening the door' has been utilized interchangeably with the [statutory] rule of completeness." Ramirez , 739 So.2d at 580 (citing Larzelere , 676 So.2d at 402 ). "The [statutory] rule of completeness, however, is a separate evidentiary concept that falls within the general principle of door-opening." Id. This Court has consistently acknowledged that point. See, e.g. , Raleigh v. State , 932 So.2d 1054, 1064 (Fla. 2006) ; Larzelere , 676 So.2d at 401-02 ; Long v. State , 610 So.2d 1276, 1280 (Fla. 1992).

B. Kaczmar and Huggins : This Court's Precedent Resolves the Conflict Issue

In Kaczmar , this Court considered whether the trial court erred in allowing the State to play an edited version of recorded conversations between the defendant and an undercover detective, during which the defendant thought the detective would help the defendant frame someone else for the murder. Kaczmar , 104 So.3d at 1000. "Specifically, the State redacted [the defendant's exculpatory] statements in the recordings where he stated that he was framing [someone else] because he was innocent." Id. "[T]he State warned the defense that introducing the exculpatory statements [under section 90.108(1), Florida Statutes (2007)-the statutory rule of completeness-]would open the door to impeachment of those statements by introducing [the defendant's] prior felonies pursuant to section 90.806(1), Florida Statutes (2007)...." Id. at 1001. Section 90.806(1) provides:

When a hearsay statement has been admitted in evidence, credibility of the declarant may be attacked and, if attacked, may be supported by any evidence that would be admissible for those purposes if the declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time inconsistent with the declarant's hearsay statement is admissible, regardless of whether or not the declarant has been afforded an opportunity to deny or explain it.

§ 90.806(1), Fla. Stat. (2014). "[I]n response to the State's warning that introducing the exculpatory statements would open the door to [the defendant's] prior felonies, defense counsel chose not to invoke the [statutory] rule of completeness." 104 So.3d at 1001.

This Court held that "the trial court did not abuse its discretion in allowing the State to introduce the edited versions of the recordings." Id. In support of its holding, this Court specifically acknowledged that "pursuant to section 90.806(1), once a defendant introduces his or her hearsay statements into evidence by invoking the [statutory] rule of completeness, 'the credibility of the declarant may be attacked just as if the declarant had testified as a witness.' " Id. (quoting Moore v. State , 943 So.2d 296, 297 (Fla. 1st DCA 2006) ).

This Court laid the foundation for Kaczmar in Huggins , in which we reasoned that a defendant who chooses not to testify but who succeeds in getting exculpatory statements uttered by the defendant into evidence as hearsay is subject to having those statements impeached under section 90.806(1). We concluded that Huggins had elicited testimony that in effect attributed an exculpatory hearsay statement to Huggins and had thereby "opened the door to his own impeachment." Huggins , 889 So.2d at 756. We thus applied the rule previously applied by district courts that a defendant is subject to impeachment "when the defendant elicits his or her own exculpatory, hearsay statement through another witness at trial." Id. at 755-56 (citing Kelly v. State , 857 So.2d 949 (Fla. 4th DCA 2003) ; Werley v. State , 814 So.2d 1159 (Fla. 1st DCA 2002) ; Llanos v. State , 770 So.2d 725 (Fla. 4th DCA 2000) ).

The reasoning of Kaczmar and Huggins resolves the conflict between Nock and Foster . Foster relied on the concept of "opening the door" in support of its conclusion that once the State introduces a portion of the defendant's statement into evidence, the defendant is entitled to have the jury hear the remainder of the defendant's statement without being subject to impeachment under section 90.806(1). Foster did not take into account that Kaczmar had previously foreclosed this result in a substantially similar context. Kaczmar established that a defendant invoking the statutory rule of completeness-a subset of the general principle of door-opening-to introduce exculpatory portions of the defendant's out-of-court statement into evidence would be subject to impeachment on the basis of those hearsay statements. Foster likewise did not address the reasoning of Huggins , which clearly laid a foundation for Kaczmar . There is no basis to permit a defendant to escape 90.806(1) impeachment under the concept of "opening the door" when similarly situated defendants would not escape 90.806(1) impeachment under Kaczmar 's application of the statutory rule of completeness and the reasoning of Huggins . Therefore, in light of Kaczmar and Huggins , we expressly approve the Fourth District's conclusion that a defendant is subject to impeachment with the defendant's prior convictions for felonies and crimes of dishonesty under section 90.806(1) whenever the defendant introduces portions of his or her out-of-court self-serving exculpatory statement into evidence.

We thus reject Nock's argument that had the "principles" of section 90.108(1) been applied to the detective's testimony regarding Nock's statement to the police, Nock would not have been "bound" or held responsible for eliciting the omitted portions of his statement and there would have been no section 90.806(1) impeachment. See § 90.108(1), Fla. Stat. ("An adverse party is not bound by evidence introduced under this section."). Nock's argument suffers from multiple flaws. First, it erroneously asserts that section 90.108(1) is applicable to his case. As explained previously, "the trial court properly ruled the [statutory] rule of completeness inapplicable" because the State "questioned the detective on direct examination about his conversation with [Nock]" without "introduc[ing] [Nock's] recorded statement" into evidence. Nock , 211 So.3d at 324. Second, Nock's interpretation of section 90.108(1) is foreclosed by Kaczmar and Huggins . Finally, Florida's common law rule of completeness does not require a different result. The fact that the State has "opened the door" to the introduction of exculpatory hearsay statements of a defendant does not suspend the operation of the rule set forth in section 90.806(1) authorizing the impeachment of hearsay declarants. We will not impose such a restriction on the operation of the statute that is unwarranted by the text of the Code of Evidence.

CONCLUSION

We approve Nock and disapprove Foster .

It is so ordered.

POLSTON, LABARGA, and LAWSON, JJ., concur.

LEWIS, J., concurs in result.

PARIENTE, J., dissents with an opinion, in which QUINCE, J., concurs.

This case is not about the rule of completeness but about considerations of fairness and the principle of "opening the door." In this case, the State made a strategic decision to not introduce Nock's video interrogation, avoiding the rule of completeness, and instead presented the testimony of the detective present during the interrogation, who paraphrased and in some cases inaccurately portrayed Nock's statements. The State's presentation left the jury with an inaccurate portrayal of Nock's statements and forced Nock into a Hobson's choice: either correct the inaccurate portrayal on cross-examination and be subjected to impeachment or leave the jury with an inaccurate portrayal of the interrogation. Because of the State's strategic choices, the State was permitted to introduce evidence of Nock's nine prior felony convictions, even though Nock never took the witness stand.

The judicially created principle of "opening the door" is based on "the consideration that without the fuller explication, the testimony that opened the door would be 'incomplete and misleading.' " Peterson v. State , 94 So.3d 514, 534 (Fla. 2012) (quoting Lawrence v. State , 846 So.2d 440, 452 (Fla. 2003) ). The principle may work against a criminal defendant where the State is permitted to fill in gaps in the testimony to correct a false impression left by the defendant. See, e.g. , Overton v. State , 801 So.2d 877, 900-01 (Fla. 2001). When that false or incomplete testimony is created by the State, the defendant should be permitted, through cross-examination, to fill in the gaps, without being subject to impeachment as occurred in this case.

The Second District Court of Appeal, in Foster v. State , 182 So.3d 3 (Fla. 2d DCA 2015), explained why fairness compels the opposite result of that reached by the majority:

Generally, a defendant's out-of-court self-serving exculpatory statements are inadmissible hearsay. Lott v. State , 695 So.2d 1239, 1243 (Fla. 1997). "[H]owever, where the state has 'opened the door' by eliciting testimony as to part of the conversation, [the] defendant is entitled to cross-examine the witness about other relevant statements made during the conversation." Guerrero v. State , 532 So.2d 75, 76 (Fla. 3d DCA 1988). "The 'opening the door' concept is based on considerations of fairness and the truth-seeking function of a trial, where cross-examination reveals the whole story of a transaction only partly explained in direct examination." Bozeman v. State , 698 So.2d 629, 631 (Fla. 4th DCA 1997).

Id. at 4.

Like the Second District, I would conclude that when the State omits material parts of the relevant interrogation, paraphrases, or presents inaccurate statements of a criminal defendant, the defendant is entitled to introduce, on cross-examination, any statement necessary to correct the misimpression, including exculpatory statements, without being subject to impeachment. In other words, the defendant should be able to provide context for any statements introduced.

However, the decision made by the trial court, affirmed by the Fourth District Court of Appeal and approved by this Court, was that if Nock wanted an accurate portrayal of his statements to the police he could be impeached with evidence of prior crimes even if he did not testify. Because this result is antithetical to the concept of fairness, upon which the principle of opening the door is based, and is not required by this Court's precedent, I dissent.

FACTS

The State's entire direct examination of the detective in this case was designed to further its theory of the crime. Instead of simply introducing the video of Nock's interrogation, the State chose to carefully introduce portions of Nock's interrogation through the testimony of the detective who was present in such a way as to create an illusion that the State's evidence proved that Nock committed premeditated first-degree murder. A very different impression of the interrogation is conveyed by the video of the complete interrogation. In an effort to correct the misimpression created by the State, the defense, on cross-examination, chronologically presented the interrogation and was able to elicit the proper context in which many of Nock's statements were made.

The State's presentation of Nock's interrogation was misleading in several critical ways. First, while questioning the detective on direct examination, the State presented the interrogation out of order. While it is true, as the detective testified on direct examination, that Nock denied the crime for the first hour of the interrogation, it is also true, as was elicited on cross-examination, that after the first hour, Nock accepted responsibility for the crime, answered all of the detective's questions, and never changed his story that the death was an accident.

Second, the State paraphrased Nock's statements in the interrogation. For example, on direct examination, the detective testified that Nock stated: "It wasn't suppose[d] to happen this way." What Nock actually said in the interrogation was, "It wasn't suppose[d] to happen, he stopped breathing."

Third, the State presented only portions of the interrogation, randomly picking and choosing some of Nock's statements and divorcing them from their proper context. For example, with respect to Nock's description of how the victim died, the detective testified on direct examination that Nock explained how the victim died in the kitchen, and that he had already taken the victim's wallet and credit cards at the time of his death. However, on cross-examination, the detective conceded that Nock also explained that the victim's death was an accident, and then he demonstrated how the victim died. Additionally, the detective conceded on cross-examination that even though he pressed Nock multiple times in regard to the theory that the death was the result of a robbery gone bad, Nock consistently maintained throughout the interrogation that the death was an accident.

As another example, the detective testified on direct examination that when the victim stopped breathing while in a wrestling hold, Nock tried to awaken him after the victim dropped to the kitchen floor, but the victim did not respond. On cross-examination, the detective conceded that Nock actually said that he never intentionally hurt anyone and that he had not intended to hurt the victim. The detective also admitted that Nock told him that the victim "quit breathing on me" and the detective clarified that contrary to his direct examination testimony, Nock did not state that the victim passed out or lost consciousness.

With respect to the alleged robbery, the detective testified on direct examination that Nock told him that he grabbed the victim's laptop computer, car keys, and other items, not including his wallet and credit cards, after the victim died. On cross-examination, the detective admitted that, within the same part of the interrogation, Nock also stated that he took those items because the victim had died and he wanted to make the scene appear as though the items were taken in a robbery. Additionally, Nock stated that although he initially put a cord around the victim's neck, he removed it because he felt that it was wrong to put it there in the first place. In the same context, the detective pressed Nock on his use of the victim's credit cards and Nock replied that he was desperate and foolish and that his mind was elsewhere at the time.

With respect to the victim's home, on direct examination the detective testified that Nock told him he poured bleach on the kitchen floor to cover up his presence. On cross-examination, the detective admitted that during the same part of the interrogation, Nock also said that he panicked before he poured the bleach on the victim's floor because he did not know CPR and he checked but found that the victim did not have a pulse. Nock also stated that after pouring bleach on the floor, he talked to the victim for thirty minutes, knowing he was dead. Nock then contemplated suicide because the victim died on him.

Nock's defense attorney brought the State's misrepresentations to the trial judge's attention:

I'm planning to cross examine Detective Rivera if the courts, and the Court has, I'm not quibbling with your ruling, you have denied my insistence that the statement be admitted to be charged to the State, that the State be charged of the proponent of the statement, a full recorded statement. I am going to cross examine Detective Rivera about things that he omitted from the statement that the State cherry picked deliberately of him, certain phrases and context. The context of the statement has been misrepresented, it's not accurate. The context is critical. So, I do intend to and I want to make it clear because it's very clear now because the Court's reminding me and the Court wants to inquire of Mr. Nock that if I do that, ... that's going to open up Mr. Nock to being impeached....
....
... Mr. Nock has a right to counsel and he has a right to cross examination but that's gonna to come at a cost to Mr. Nock that that's going to be impeached and it's going to cost his fifth amendment right to remain silent ....

The trial court denied Nock's multiple requests to have the entire interrogation entered into evidence. Instead, the trial court held that if Nock wanted to introduce the entire interrogation to clarify the misimpressions made by the State, he could do so during his portion of the trial, but would be subject to impeachment. Specifically, the trial court held that any clarification of the interrogation by Nock that included exculpatory statements would lead to the court permitting the State to present evidence to the jury of Nock's nine prior felony convictions.

ANALYSIS

Today, the majority opinion approves the decision below, essentially permitting the State to force criminal defendants into the Hobson's choice of allowing their interrogation with police to be misstated and mischaracterized through the testimony of an interested party or divulging to the jury highly prejudicial information of their previous criminal convictions. However, I would approve Foster , which avoids this unnecessary and patently unfair result. In Foster , the Second District, under similar facts, held:

Here, the record shows that it was the State that first elicited testimony from the officer that Foster said he found the wallet. Once the State presented a portion of Foster's statement, Foster was entitled to have the jury hear the remainder of his statement without fear of placing his credibility in issue. Thus, the trial court erred in finding that defense counsel's cross-examination of the officer opened the door to Foster's impeachment by prior convictions.

182 So.3d at 4-5 (citation omitted).

The majority disapproves Foster , concluding that it is contrary to this Court's decision in Kaczmar v. State , 104 So.3d 990 (Fla. 2012), and "did not address the reasoning of Huggins [v. State , 889 So.2d 743 (Fla. 2004) ], which clearly laid a foundation for Kaczmar ." Majority op. at 838. However, the majority fails to acknowledge that there is a significant distinction between this case and Foster and this Court's opinions in Huggins and Kaczmar .

In Kaczmar , the State played an edited version of recorded conversations between the defendant and an undercover detective in regard to the defendant framing an innocent person for the murder. 104 So.3d at 1000. This Court concluded that "in response to the State's warning that introducing the exculpatory statements would open the door to Kaczmar's prior felonies, defense counsel chose not to invoke the rule of completeness. Accordingly, the trial court did not abuse its discretion in allowing the State to introduce the edited version of the recordings." Id. at 1001.

Critical to this case is that there is no indication in Kaczmar that the State attempted to either play the recording out of order or take Kaczmar's statements out of context. Indeed, the actual recorded conversation, albeit an edited version, was played for the jury. Id. Therefore, the jury in Kaczmar , as opposed to this case, was able to follow the conversation in the order in which it occurred and listen to the statements that were actually made by the parties, rather than one participant's recollection of the statements. Thus, the fairness concerns that are present in this case were not present in Kaczmar .

Huggins is likewise distinguishable from this case. There, the defendant himself introduced the exculpatory testimony of a corrections officer in an attempt to counter evidence presented by the State. 889 So.2d at 755. The testimony was presented in response to evidence entered by the State of his consciousness of guilt. Id. However, nowhere in the opinion is there any indication that the State presented an inaccurate or misleading portrayal of the evidence. Thus, Huggins made the choice to elicit the exculpatory information in an effort to help his defense, and was not forced to do so in an effort to clarify misrepresentations made by the State.

By contrast, in this case, the State inaccurately portrayed Nock's interrogation and eventual confession to the crime, presenting the interrogation piecemeal and out of order and paraphrasing some of Nock's statements. Similarly, in Foster , the State elicited only a portion of Foster's statement to the police on direct examination, requiring Foster to introduce the other relevant portions of his statement in order to clarify the State's portrayal of his statements. 182 So.3d at 5.

Accordingly, contrary to the majority's reasoning, Huggins and Kaczmar do not mandate the conclusion in this case. The highly inequitable result in this case is a direct product of this distinguishing factor between the two sets of cases and compels this Court to apply the concept of "opening the door" here, as was done in Foster . Thus, this Court should require that when one party introduces an interrogation in a way that is incomplete and misleading, it opens the door to allowing the other party to introduce an accurate depiction of the conversation, even if doing so includes exculpatory statements. As the majority opinion aptly explains:

"As an evidentiary principle, the concept of 'opening the door' allows the admission of otherwise inadmissible testimony to 'qualify, explain, or limit' testimony or evidence previously admitted." Ramirez [v. State ], 739 So.2d [568,] 579 [ (Fla. 1999) ] (quoting Tompkins v. State , 502 So.2d 415, 419 (Fla. 1986) ). "The concept of 'opening the door' is 'based on considerations of fairness and the truth-seeking function of a trial.' " Id. (quoting Bozeman v. State , 698 So.2d 629, 631 (Fla. 4th DCA 1997) ); see McCrae v. State , 395 So.2d 1145, 1151-52 (Fla. 1980) (holding that a prosecutor was entitled to inquire into the exact nature of a prior felony conviction where defense counsel sought to establish that that prior conviction was inconsequential). The concept of "opening the door" is also based on "the consideration that without the fuller explication, the testimony that opened the door would be 'incomplete and misleading.' " Peterson v. State , 94 So.3d 514, 534 (Fla. 2012) (quoting Lawrence v. State , 846 So.2d 440, 452 (Fla. 2003) ); see Overton v. State , 801 So.2d 877, 900-01 (Fla. 2001) (agreeing that the State is permitted to fill in the gaps in the testimony to correct a false impression left by the defendant). Similarly, the statutory rule of completeness is based on considerations of "fairness" and "avoid[ing] the potential for creating misleading impressions by taking statements out of context." Larzelere [v. State ], 676 So.2d [394,] 401-02 [ (Fla. 1996) ] (quoting Charles W. Ehrhardt, Florida Evidence § 108.1 (1995 ed.) ).

Majority op. at 837.

Fairness and the need to cure the misleading impression left by the testimony presented by the State required that Nock be allowed to introduce an accurate portrayal of his interrogation. Moreover, because the State's actions placed Nock in an untenable position to clarify its numerous and calculated misrepresentations, Nock should not be penalized by being subject to impeachment. Thus, I would conclude that the trial court erred in allowing evidence of Nock's nine prior felony convictions to be introduced at trial.

Additionally, I would conclude that the error in this case was not harmless beyond a reasonable doubt. As the Second District held in Foster , "Because this case turned on [the defendant's] credibility and whether the jury believed [his version of the crime], we cannot say beyond a reasonable doubt that allowing the jury to learn of his prior criminal record did not contribute to the verdict." 182 So.3d at 5 ; see also State v. DiGuilio , 491 So.2d 1129, 1134 (Fla. 1986).

CONCLUSION

At the heart of this case is the concept of fairness, which is the basis for the principle of opening the door. Nock should not be forced to correct the State's misimpression of his interrogation at the cost of being impeached by highly prejudicial evidence of prior felony convictions. Thus, I would conclude that the trial court erred when it permitted the State to introduce evidence of Nock's prior felony convictions. Further, because I conclude that the error is not harmless, I would reverse and remand for a new trial.

Accordingly, I dissent.

QUINCE, J., concurs.

      Here, the impeachment was with the defendant's prior convictions. Section 90.610(1), Florida Statutes (2014), provides: "A party may attack the credibility of any witness, including an accused, by evidence that the witness has been convicted of a crime if the crime was punishable by death or imprisonment in excess of 1 year under the law under which the witness was convicted, or if the crime involved dishonesty or a false statement regardless of the punishment ...."

      Section 90.806(1) has not been altered since this Court decided Kaczmar .


source: Caselaw Access Project

license: Public Domain

text:
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    David RENCZKOWSKI, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D18-4022
    District Court of Appeal of Florida, Second District.
    October 22, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Maurice E. CLIMES, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D18-3888
    District Court of Appeal of Florida, Second District.
    October 22, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Writ of habeas corpus is denied.


text:
    Edward L. BASKIN, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D18-4122
    District Court of Appeal of Florida, Second District.
    October 23, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Peter BABAJKO, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D18-0533
    District Court of Appeal of Florida, Second District.
    October 23, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Mandamus is denied.


text:
    Jeffrey J. CALFAS, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D18-3359
    District Court of Appeal of Florida, Second District.
    October 23, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Charlie JACKSON, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D18-4036
    District Court of Appeal of Florida, Second District.
    October 23, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    F. S., Appellant/Petitioner(s), v. DEPT. OF CHILDREN & FAMILIES, Appellee/Respondent(s).
    CASE NO.: 2D18-2718
    District Court of Appeal of Florida, Second District.
    November 29, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    John Robert SEBO, Individually & Trustee, Appellant/Petitioner(s), v. AMERICAN HOME ASSURANCE CO., INC., Appellee/Respondent(s).
    CASE NO.: 2D18-4077
    District Court of Appeal of Florida, Second District.
    November 27, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    K.E.H., Appellant/Petitioner(s), v. B.C.P., Jr., Appellee/Respondent(s).
    CASE NO.: 2D18-2470
    District Court of Appeal of Florida, Second District.
    November 27, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Tyre ADAMS, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D18-3903
    District Court of Appeal of Florida, Second District.
    October 25, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.

Denied.


text:
    RHONDA HOLLANDER, PA, et al., Appellant(s)/Petitioner(s), v. Mamise ADRIEN and Sandra Witty Fortunato, Appellee(s)/Respondent(s),
    CASE NO.: 3D18-1272, 3D18-1257
    District Court of Appeal of Florida, Third District.
    JULY 18, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    R.H., The Mother, Appellant(s)/Petitioner(s), v. DEPARTMENT OF CHILDREN AND FAMILIES, et al., Appellee(s)/Respondent(s),
    CASE NO.: 3D18-0730
    District Court of Appeal of Florida, Third District.
    JULY 6, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Granted.

Dismissed.


text:
    S.N.L., The Mother, Appellant(s)/Petitioner(s), v. DEPARTMENT OF CHILDREN AND FAMILIES, et al., Appellee(s)/Respondent(s),
    CASE NO.: 3D18-0520
    District Court of Appeal of Florida, Third District.
    JULY 2, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Granted.

Dismissed.


text:
    Todd WATSON, Appellant(s)/Petitioner(s), v. The STATE of Florida, et al., Appellee(s)/Respondent(s),
    CASE NO.: 3D18-1147
    District Court of Appeal of Florida, Third District.
    JUNE 13, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Asher DAYAN, Appellant, v. Alona Epstein DAYAN, Appellee.
    No. 3D16-2429
    District Court of Appeal of Florida, Third District.
    Opinion filed August 8, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    LIPCON, MARGULIES, ALSINA & WINKLEMAN, P.A., Appellant, v. Jackelin GUTIERREZ, et al., Appellees.
    Nos. 3D17-1255 3D17-2033 & 3D17-2157
    District Court of Appeal of Florida, Third District.
    Opinion filed August 1, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Kalev BAREK, Appellant, v. HSBC BANK USA, N.A., etc., Appellee.
    No. 3D17-1426
    District Court of Appeal of Florida, Third District.
    Opinion filed August 1, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    D.R., the Father, Appellant(s)/Petitioner(s), v. DEPARTMENT OF CHILDREN AND FAMILIES, et al., Appellee(s)/Respondent(s),
    CASE NO.: 3D18-0569
    District Court of Appeal of Florida, Third District.
    JULY 24, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    V.M., The Mother, Appellant(s)/Petitioner(s), v. DEPARTMENT OF CHILDREN AND FAMILIES, et al., Appellee(s)/Respondent(s),
    CASE NO.: 3D18-0733
    District Court of Appeal of Florida, Third District.
    JULY 23, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Y.T., The Mother, Appellant(s)/Petitioner(s), v. DEPARTMENT OF CHILDREN AND FAMILIES, et al., Appellee(s)/Respondent(s),
    CASE NO.: 3D18-0731
    District Court of Appeal of Florida, Third District.
    JULY 20, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Granted.

Dismissed.


text:
    N.S., The Father, Appellant(s)/petitioner(s), v. DEPARTMENT OF CHILDREN AND FAMILIES, et al., Appellee(s)/Respondent(s),
    CASE NO.: 3D18-0740
    District Court of Appeal of Florida, Third District.
    JULY 19, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Granted.


text:
    V.R., a Minor, Appellant(s)/Petitioner(s), v. The DEPARTMENT OF CHILDREN AND FAMILY SERVICES, et al., Appellee(s)/Respondent(s),
    CASE NO.: 3D18-1345
    District Court of Appeal of Florida, Third District.
    JULY 13, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismiss.


text:
    S.F., the Father, Appellant(s)/Petitioner(s), v. DEPARTMENT OF CHILDREN AND FAMILIES, et al., Appellee(s)/Respondent(s),
    CASE NO.: 3D18-0732
    District Court of Appeal of Florida, Third District.
    JULY 23, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Granted.


text:
    Jean Francois FILION, et al., Appellant(s)/Petitioner(s), v. SCHECHER GROUP, INC., Appellee(s)/Respondent(s),
    CASE NO.: 3D18-0578
    District Court of Appeal of Florida, Third District.
    JULY 09, 2018 Rehearing Denied August 21, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismiss. Granted.


text:
    Elsa J. De Pablos BERMUDEZ, Appellant(s)/Petitioner(s), v. SCHECHER GROUP, INC., Appellee(s)/Respondent(s),
    CASE NO.: 3D18-0596
    District Court of Appeal of Florida, Third District.
    JULY 09, 2018 Rehearing Denied August 21, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Granted. Dismissed.


text:
    ELSITTA, LLC, et al., Appellant(s)/Petitioner(s), v. SCHECHER GROUP, INC., Appellee(s)/Respondent(s),
    CASE NO.: 3D18-0604
    District Court of Appeal of Florida, Third District.
    JULY 09, 2018 Rehearing Denied August 21, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Granted. Dismissed.


text:
    Johnny ESTEVEZ, Appellant(s)/Petitioner(s), v. The STATE of Florida, Appellee(s)/Respondent(s),
    CASE NO.: 3D18-1630
    District Court of Appeal of Florida, Third District.
    AUGUST 24, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    L.H., the Mother, Appellant(s)/Petitioner(s), v. DEPARTMENT OF CHILDREN AND FAMILIES, et al., Appellee(s)/Respondent(s),
    CASE NO.: 3D18-1502
    District Court of Appeal of Florida, Third District.
    AUGUST 20, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    N.J., Appellant(s)/Petitioner(s), v. The STATE of Florida and Aventura Hospital, Appellee(s)/Respondent(s),
    CASE NO.: 3D18-1681
    District Court of Appeal of Florida, Third District.
    AUGUST 17, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    P.A., JR., the Father, Appellant(s)/Petitioner(s), v. DEPARTMENT OF CHILDREN AND FAMILIES, et al., Appellee(s)/Respondent(s),
    CASE NO.: 3D18-1481
    District Court of Appeal of Florida, Third District.
    AUGUST 15, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Joe RILEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-2021
    District Court of Appeal of Florida, Fourth District.
    [September 27, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Bainet PIERRE-LOUIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-806
    District Court of Appeal of Florida, Fourth District.
    September 27, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Pamela BRASWELL, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-1297
    District Court of Appeal of Florida, Fourth District.
    [September 27, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Aaron MOHANLAL, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-1382
    District Court of Appeal of Florida, Fourth District.
    [September 20, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    ENET 1, LLC, Appellant, v. David DIMECO, Appellee.
    Nos. 4D17-3300 & 4D17-3301
    District Court of Appeal of Florida, Fourth District.
    [October 18, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    J.A., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-2462
    District Court of Appeal of Florida, Fourth District.
    [October 18, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Oscar W. BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-410
    District Court of Appeal of Florida, Fourth District.
    [October 18, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Paul MCNAMEE, Appellant, v. STATE of Florida, Appellee.
    No. 4D15-4237
    District Court of Appeal of Florida, Fourth District.
    [October 11, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Billy TYNER,, Appellant, v. STATE of Florida,, Appellee.
    No. 4D18-2215
    District Court of Appeal of Florida, Fourth District.
    [October 18, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Peter John DIMITRION, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-2372
    District Court of Appeal of Florida, Fourth District.
    [October 18, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Michael MOCCIA and Denise Moccia, Appellants, v. WELLS FARGO, AS TRUSTEE in trust FOR SASCO 2007-MLN1 TRUST, Appellee.
    No. 4D18-710
    District Court of Appeal of Florida, Fourth District.
    [October 18, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Michael L. SCOTT, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-2553
    District Court of Appeal of Florida, Fourth District.
    November 1, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Kenneth T. MARSHALL, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-2628
    District Court of Appeal of Florida, Fourth District.
    [November 1, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Maria Alice Lorca VERAS and Walderico Clemenceu C. Lorca, Appellants, v. Christopher Nels OSHER, Appellee.
    No. 4D18-0582
    District Court of Appeal of Florida, Fourth District.
    [October 25, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    E.E., the Mother, Appellant, v. FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES and Guardian Ad Litem Program, Appellees.
    No. 4D18-2297
    District Court of Appeal of Florida, Fourth District.
    [October 25, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Sinclair ROBINSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-2686
    District Court of Appeal of Florida, Fourth District.
    [November 1, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Jesus MACHADO, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-2282
    District Court of Appeal of Florida, Fourth District.
    November 1, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Alphonso T. MORRIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-2248
    District Court of Appeal of Florida, Fourth District.
    [November 1, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Jimmie WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-2309
    District Court of Appeal of Florida, Fourth District.
    [November 1, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Alberto Francisco DIAZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-2394
    District Court of Appeal of Florida, Fourth District.
    [November 1, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    DEPARTMENT OF CHILDREN AND FAMILIES, Appellant, v. T.S., Mother of P.T., Z.T., J.T., and C.T., Children, Appellee.
    Case No. 5D18-1334
    District Court of Appeal of Florida, Fifth District.
    Decision filed August 22, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    A.C., Mother of J.C.C., A CHILD, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    Case No. 5D18-1191
    District Court of Appeal of Florida, Fifth District.
    Decision filed August 22, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Dale B. GREEN, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-2635
    District Court of Appeal of Florida, Fifth District.
    Decision filed October 30, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Garner Isaiah DRAUGHN, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3229
    District Court of Appeal of Florida, Fifth District.
    Decision filed October 30, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Wadner Janvier Chaudre VITAL, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3220
    District Court of Appeal of Florida, Fifth District.
    Decision filed October 30, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Henry Adam CONTRERAS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2547
    District Court of Appeal of Florida, Fifth District.
    Decision filed October 30, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Sergio Grespan FILHO, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2433
    District Court of Appeal of Florida, Fifth District.
    Decision filed October 30, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Terry BRUNNET, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2430
    District Court of Appeal of Florida, Fifth District.
    Decision filed October 30, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Milton Curtis WILCOX, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2294
    District Court of Appeal of Florida, Fifth District.
    Decision filed October 30, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Deondre Pierre Sherod BROWN, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-863
    District Court of Appeal of Florida, Fifth District.
    Decision filed October 30, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    M.J.-C., Father, Appellant, v. A.D., Mother, Appellee.
    Case No. 5D18-3001
    District Court of Appeal of Florida, Fifth District.
    Decision filed November 7, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Manuel RODRIGUEZ, Jr., Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-3099
    District Court of Appeal of Florida, Fifth District.
    Decision filed November 6, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


author: Kuntz, J.

text:
    SOUTH FLORIDA FAIR AND PALM BEACH COUNTY EXPOSITIONS, INC., a Florida corporation, Appellant, v. Widley JOSEPH, Individually, and as Parent & Natural Guardian of J.J. and J.J., his minor children, Appellee.
    No. 4D17-2816
    District Court of Appeal of Florida, Fourth District.
    [September 5, 2018]
    Matthew J. Conigliaro of Carlton Fields Jorden Burt, P.A., Tampa, and M. Derek Harris of Carlton Fields Jorden Burt, P.A., West Palm Beach, for appellant.
    Marwan E. Porter of The Porter Law Firm, LLC, Stuart, for appellee.
   Kuntz, J.

The South Florida Fair and Palm Beach Expositions, Inc. ("South Florida Fair") appeals the circuit court's order denying its motion for summary judgment and, as a result, denying it limited sovereign immunity. We conclude that the South Florida Fair is entitled to limited sovereign immunity. Thus, we reverse the court's order.

While waiting with his children to ride the bumper cars at South Florida Fair's annual fair, a group of teenagers approached Widley Joseph and demanded he hand them his watch. After he refused, the teenagers attacked him with weapons causing him serious injuries.

As a result, Joseph sued South Florida Fair and its operator, W.G. Wade Shows, Inc. Joseph also served "notice and official claims pursuant to Florida Statute 768.28 regarding waiver of sovereign immunity in tort actions."

South Florida Fair moved for partial summary judgment, claiming limited sovereign immunity under section 768.28(5), Florida Statutes (2007). The circuit court denied the motion, concluding that the state did not have sufficient structural power over the South Florida Fair to render it an instrumentality of the state. First, the circuit court analyzed the statutory provisions of chapter 616 associated with "fair associations." Second, the circuit court analyzed Plancher v. UCF Athletics Ass'n , 175 So.3d 724 (Fla. 2015), and concluded that despite the limited statutory regulation placed on fair associations by the state, the South Florida Fair is not an instrumentality of the state.

South Florida Fair appeals the court's denial of its assertion of sovereign immunity. To determine whether the South Florida Fair is protected by limited sovereign immunity, we consider whether it is mainly acting as an instrumentality or agency of the state. See, e.g. , Plancher , 175 So.3d at 726 ; Prison Rehab. Indus. v. Betterson , 648 So.2d 778, 779-81 (Fla. 1st DCA 1994) ; Shands Teaching Hosp. & Clinics, Inc. v. Lee By & Through Lee , 478 So.2d 77, 78-79 (Fla. 1st DCA 1985).

Entities "primarily acting as instrumentalities of independent establishments of the State are included in the definition within section 768.28(2) of 'state agencies or subdivisions.' " Plancher , 175 So.3d at 726. Thus, if the South Florida Fair is mainly acting as an instrumentality of the State, it is entitled to limited sovereign immunity under section 768.28.

Chapter 616, Florida Statutes, titled "Public Fairs and Expositions," includes three parts: "Part I. General Provisions," "Part II. Trade and Safety Standards," and "Part III. Florida State Fair Authority." In Part III, the legislature created the Florida State Fair, "a public body corporate and politic." § 616.251(1), Fla. Stat. (2007). The Florida State Fair "shall be considered an instrumentality of the state, subject to the jurisdiction of the state." Id. It "is charged with the responsibility of staging an annual fair to serve the entire state." § 616.251(3), Fla. Stat. Additionally, "[t]hroughout each year," the Florida State Fair must "promote the progress of the state and stimulate public interest in the advantages and development of the state by providing facilities for agricultural and industrial exhibitions, public gatherings, cultural activities, and other functions intended to advance the educational, physical, economic, and cultural interests of the public." § 616.255(2), Fla. Stat. And the activities of the Florida State Fair "constitute essential governmental purposes." § 616.260, Fla. Stat. The Florida State Fair is an entity entitled to limited sovereign immunity.

Of course, the South Florida Fair is not the Florida State Fair. It is authorized by Part I of section 616, and is "an association not for profit incorporated under this chapter for the purpose of conducting and operating public fairs or expositions." § 616.001(9), Fla. Stat.

These statutory provisions control the creation of a fair association, sections 616.01, .02, Florida Statutes, which can be district fairs, county fairs, community fairs, or regional fairs. § 616.001(2), (3), (5), (11), Fla. Stat. To receive a charter, the proposed fair association must apply to the circuit court in the jurisdiction for approval after compliance with the application requirements. § 616.03, Fla. Stat. Section 616.05 governs the amendment of a fair association charter, and section 616.051 governs the dissolution of a fair association which requires approval by both the Department of Agriculture and the circuit court.

Once a fair association is created, the statute controls its core purpose and activities. Fair associations "have the power to hold, conduct, and operate public fairs and expositions annually and for such purpose." § 616.08, Fla. Stat. A fair association can also "conduct and hold public meetings," and can provide "facilities for agricultural and industrial exhibitions, public gatherings, cultural activities, and other functions which the association determines will enhance the educational, physical, economic, and cultural interests of the public." Id. But a fair association may not conduct more than one annual public fair each calendar year without risking revocation of its charter by the court that granted it. § 616.14(1), Fla. Stat.

The statute also governs the assets of a fair association. "[A]ll money and property of the association shall ... be and remain perpetually public property[.]" § 616.07(1), Fla. Stat. A fair association can obtain property "for the purpose of public fairs or expositions[.]" § 616.08, Fla. Stat. And the statute governs its use of funds. §§ 616.21-23, Fla. Stat.

A fair association is also required to provide proof of insurance in the amount of $300,000-an amount that exceeds the liability cap in section 768.28(5). See § 616.15(1)(f), Fla. Stat. ("Proof of liability insurance insuring the association against liability for injury to persons, in an amount of not less than $300,000 per occurrence."). Joseph argued to the circuit court that requiring a fair association to provide proof of insurance beyond the liability cap in section 768.28, Florida Statutes, is "nonsensical" if the fair association has limited sovereign immunity. But as South Florida Fair argues, liability insurance provides both indemnification and coverage. The insurer secures counsel for the insured and pays for that counsel. Thus, the legislature's requirement that a fair association secure insurance in an amount above the liability cap is not dispositive.

This statute governs the formation, operation, assets, dissolution, and other aspects of a fair association. It also has long been established that fair associations serve an essential governmental purpose. Carswell v. State ex rel. Marlowe , 118 Fla. 72, 81, 159 So. 15, 18 (1935) (plurality opinion); see also Op. Att'y Gen. Fla. 95-17 (1995) (concluding that the South Florida Fair is "performing a government function" and an " 'agency' for purposes of Chapter 119, Florida Statutes");

§ 616.07, Fla. Stat. (2012) (amended by chapter 2012-204, Laws of Florida, to reflect that fair associations serve an "essential government purpose").

Above all, the statute specifically answers the question presented. "The preeminent purpose of state sovereign immunity is to accord States the dignity that is consistent with their status as sovereign entities." Fed. Mar. Comm'n v. S.C. State Ports Auth. , 535 U.S. 743, 760, 122 S.Ct. 1864, 152 L.Ed.2d 962 (2002). "The generation that designed and adopted our federal system considered immunity from private suits central to sovereign dignity." Alden v. Maine , 527 U.S. 706, 715, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999). Sovereign immunity, unless waived, applies "regardless of the forum." Id. at 749, 119 S.Ct. 2240.

The legislature effectuated a limited waiver of that sovereign immunity in section 768.28, Florida Statutes (2007). And there is no dispute that the Florida State Fair is entitled to section 768.28's limited sovereign immunity. So too is a fair association. Section 616.19, Florida Statutes, provides that a fair association and the Florida State Fair are equal in dignity:

Any public fair or exposition heretofore or hereafter created pursuant to this chapter shall be designated by the name stated in the permit required or stated by its fair association and shall be recognized by the state as equal in dignity to the Florida State Fair and as fully recognized as the Florida State Fair.

(emphasis added). To conclude that the Florida State Fair is entitled to the limited sovereign immunity in section 768.28(2), but a fair association is not, would fail to recognize the two as equal in dignity.

In conclusion, the South Florida Fair is entitled to the limited sovereign immunity afforded by section 768.28, Florida Statutes (2007). We reverse the circuit court's order denying summary judgment and remand the case for further proceedings.

Reversed and remanded.

Taylor and Damoorgian, JJ., concur.

      Joseph dismissed his claims against W.G. Wade Shows, Inc. with prejudice.

      Unless otherwise indicated, all citations to Chapter 616 in this opinion are to Chapter 616, Florida Statutes (2007).

      Joseph also argued the South Florida Fair had $30 million in insurance coverage and that "it defies common sense for the South Florida Fair to carry" such an amount of coverage if it is an instrumentality of the state. We assume the state entity in Plancher also had coverage above the liability cap. In Plancher , the Florida Supreme Court rejected the Planchers' argument that they could recover from the insurer any amounts that exceeded the liability cap. Plancher , 175 So.3d at 728 n.4.