Third District Court of Appeal
State of Florida
Opinion filed December 9, 2020.
Not final until disposition of timely filed motion for rehearing.
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No. 3D19-2179
Lower Tribunal No. 18-201-A-K
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The State of Florida,
Appellant,
vs.
Hernan Francisco Marin,
Appellee.
An Appeal from the Circuit Court for Monroe County, Mark H. Jones, Judge.
Ashley Moody, Attorney General, and Brian H. Zack, Assistant Attorney
General, for appellant.
The Upson Law Group, P.L., and Keith W. Upson (Naples), for appellee.
Before EMAS, C.J., and GORDO and BOKOR, JJ.
GORDO, J.
The State appeals the trial court’s order granting Hernan Marin’s motion to
exclude the audio-video recording of a controlled call with the victim in the
underlying case. We have jurisdiction. See Fla. R. App. P. 9.140(c)(1)(B). The
State argues the trial court abused its discretion in excluding the recording in its
entirety because it contains audible portions discussing the crimes charged.1 We
agree, reverse and remand for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
The State charged Marin with one count of aggravated assault with a deadly
weapon without intent to kill and one count of felony battery or domestic battery by
strangulation. On February 27, 2018, Lieutenant David Smith, who was
investigating the alleged crimes, and Detective Wendy Negron met with the victim
to conduct a controlled call with Marin. The controlled call was audio and video
recorded on Lieutenant Smith’s body-worn camera.
On October 27, 2019, Marin filed a motion seeking to exclude the recording
of the controlled call on several grounds, including that it was mostly inaudible. The
trial court held an evidentiary hearing regarding the call’s admissibility, where it
addressed only “whether the tape was sufficiently audible to be admitted into
1
We do not address the relevance of the audible portions of the audio-video
recording. As the trial court’s order makes clear, the only issue addressed at the
hearing was the audibility of the recording; the trial court has not yet considered the
recording’s relevance. Thus, we do not comment on the relevance of the recording,
which is to be litigated upon remand for further proceedings.
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evidence at all.” At the hearing, the trial court heard the recording but declined to
admit a copy of the call transcript in evidence because it wanted to decide the
audibility of the tape “without the influence of a written transcript.” The entire
hearing, including the playing of the controlled call recording, was transcribed by a
court reporter. 2
During Lieutenant Smith’s testimony, the State played the recording. He was
able to hear Marin’s statements pertaining to the crimes in question and explain the
contents of the conversation between Marin and the victim. During cross-
examination, Lieutenant Smith acknowledged that some of Marin’s responses were
inaudible.
On the record, the trial court observed that the recording “may be audible” but
stated it was struggling to determine whether the recording contained relevant
statements.3 Later, in its written order, the trial court reached the opposite
conclusion, finding the recording was largely “inaudible, unintelligible, and
ultimately meaningless.” The trial court granted the motion and excluded the
recording in its entirety.
STANDARD OF REVIEW
2
On appeal, the State filed an email correspondence from the court reporter in which
she states that she “transcribed the audio of the controlled call that was played in
court based on what [she] heard in court, not based on any transcript.”
3
The trial court stated, “It may be audible . . . But, as I was listening to this, it was
really hard for me to link it up to the crimes alleged herein.”
3
“A trial court has wide discretion concerning the admissibility of evidence,
and a ruling on admissibility will not be disturbed unless there has been an abuse of
discretion.” Irving v. State, 627 So. 2d 92, 94 (Fla. 3d DCA 1993) (citing Jent v.
State, 408 So. 2d 1024, 1029 (Fla. 1981)). The trial court’s determination that the
tape is audible, however, is a factual determination subject to the competent,
substantial evidence standard. McCoy v. State, 853 So. 2d 396, 403–04 (Fla. 2003).
LEGAL ANALYSIS
“The general rule regarding admissibility of partially inaudible tape
recordings is that such recordings are admissible unless the inaudible and
unintelligible portions are so substantial as to deprive the remainder of relevance.”
Commerford v. State, 728 So. 2d 796, 798 (Fla. 4th DCA 1999) (citing Odom v.
State, 403 So. 2d 936, 940 (Fla. 1981)). “Partial inaudibility or unintelligibility is
not a ground for excluding a recording if the audible parts are relevant, authenticated,
and otherwise properly admissible.” Id. (citing Wilson v. State, 680 So. 2d 592, 594
(Fla. 3d DCA 1996)).
The State’s evidence at the hearing demonstrated that the recording is largely
audible. First, Lieutenant Smith testified regarding what he heard in open court.
Second, the transcript of the proceedings contains a transcription of the majority of
the recorded call, based on what was played in court. This demonstrates that the
recording is, at minimum, sufficiently audible to be mostly transcribed just from
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hearing it played in a court proceeding. The recording, therefore, is not so “inaudible
and [un]intelligible . . . as to deprive the audible portions of relevance.” Martinez v.
State, 761 So. 2d 1074, 1083 (Fla. 2000) (citations omitted). Thus, the trial court’s
finding that the recording was inaudible was not supported by competent, substantial
evidence, and it was an abuse of discretion to exclude the recording in its entirety on
that basis.
Reversed and remanded.
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