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State Of Florida vs. Michael D. Jones

State of Florida vs. Michael D. Jones

2021 WL 2131584

Welcome back Ladies and Gents. Today we are going to hone-in-on another first-degree premeditated murder case relatively hot off the press. Now, not uncommon in homicide cases is the complex array of issues that tend to arise. The Appellate Courts seem to analyze cases with very severe penalties with a fine-tooth comb. To make this as short and sweet as possible we are going to try and focus in on one major issue with the likelihood that we will revisit this case in the not-so-distant future. Today’s issue is going to center around one of the exceptions to the hearsay rule: The Excited Utterance.

Generally speaking, a person cannot come to Court and testify to what someone else said. That is commonly referred to as hearsay. The logic here is that something is more reliable when you can hear from the person who actually said it and not from someone simply relaying what they heard.

Some of you might remember that game played many, many, years ago before the internet and the invention of PlayStation and Fortnite called “telephone”. Well just like in a bad game of telephone the initial message does not always come out the same in the end. In fact, the message can be drastically different and distorted. Because of this, when available, you want to hear the message directly from the horse’s mouth.

This case also centers around domestic violence. If you are a loved one have been accused of domestic violence or any charge of domestic battery please don’t hesitate to contact our domestic violence lawyer, Matthew Glassman. The Law Office of Matthew Glassman P.A. has successfully defended numerous domestic violence cases.

Now back to our case at hand. The main issue with hearsay is that the author or the person who makes the statement isn’t available to testify. As I said in the beginning, this is a first-degree premeditated murder case.  That means the victim is not alive to tell their version of what happened. It is with that guise that we begin our analysis.


Mike Jones is alleged to have killed his girlfriend Diana Duve. The couple was last seen at 1:13AM leaving a bar in Vero Beach on June 20th 2014. At 1:45AM Diana’s mom received a text message from her daughter advising that she would be not be coming home that night. On that same day Jones called in sick to work. Later that day Jones had a friend take him to his car that was still parked outside the Vero beach bar from the night before. Later that afternoon Jones went and withdrew $2500 from the bank and told the teller he was going on a vacation. Later that evening Jones checked into a hotel in Fort Pierce and told the hotel employee not to transfer him any calls or tell anyone that he was staying there. Jones paid for the room in cash.

At roughly 6am on the next day, Jones’s neighbor witnessed a man with a “odd” or “freaked out” demeanor walking behind Jones’s building. The neighbor then saw Duve’s car–a black Nissan Altima—back out of Jones’s garage. At some point during their investigation the police found Duve’s blood in Jones’s garage.

Around 7am on that same morning, surveillance footage at a Walmart captured Jones getting out of a black vehicle and entering the store. At the store Jones bought a black flip phone and a prepaid Verizon card. He then got back into the black car and drove around to the dumpster area where he tried to discard a trash bag but was unable to as the dumpsters were locked. About an hour later Jones used the flip phone to call a taxi. The Taxi driver picked him up in Melbourne and dropped him off across the street from his home in Vero.

Police obtained Jones’s cell phone records and later arrested Jones at a hotel in Fort Pierce on June 22nd. The next day the police discovered the victim’s car in a parking lot in Melbourne near where the taxi had picked Jones up. The victim’s body was in the trunk of her car.

The medical examiner conducted an autopsy on the body and concluded that the manner of death was a homicide. In Particular they concluded that the victim died of manual strangulation. The medical examiner’s opinion was based fingerprint impressions on the neck, bleeding in the eyes and multiple broken bones in the neck among other things.

For more information on this case click here.

Evidence of Prior Bad Acts

Now this case Is a little unusual because the prosecution was seeking to introduce evidence of another domestic violence dispute between Duve and Jones that happened roughly 60 days before the murder. The State intended to offer this evidence to “proof of motive, intent, knowledge and/or absence of mistake or accident,” as well as “premeditation, rebuttal of any proposed defense or defenses.”

Now as an experienced criminal defense and domestic violence law firm I can tell you the Law Office of Matthew Glassman P.A would fight very hard to try and keep out evidence of prior bad acts. Why? Because in layman’s terms this evidence is very damning, and if made a focus of a trial, is designed to make the defendant look like a scumbag in front of a jury by showing that he/she had committed a similar crime before. The State Attorney’s office must put the defense on notice that they intend to rely on these prior bad acts by filing a Williams Rule Notice. The State attorney did so in this case and a hearing was held on the admissibility of said previous domestic violence incident. Now the Court in this case, ultimately let the prior domestic violence in so we must discuss the facts of what happened on April 30th, 2014 as it is very relevant to the excited utterance exception to the hearsay rule. We will revisit the Williams rule in greater detail in a future blog post.

April 30th 2014

Mike Jones’s neighbor called 911 on April 30th 2014. The neighbor heard a loud one -sided argument that lasted 45 minutes or so. The neighbor described Jones as sounding enraged and the neighbor felt the situation was unsafe.

At 1:16am Officer Kuehn arrived on the scene to investigate the neighbor’s call. The officer knocked on the door and several minutes later Jones came to the door. Jones said that he had been asleep and the officer asked to speak with Duve. Duve came to the door in her pajamas. She was not crying and her demeanor appeared normal. Officer Brumley then arrived and took a statement from Duve.

Officer Brumley claimed in his deposition that the Duve claimed that her and Jones had “rough sex.” Officer Brumley did not notice any injuries on Duve. Officer Brumley claims that just as the officers were about to leave the victim said, “Don’t go anywhere, I’m leaving.” Duve allegedly then begs the officers to stay while she gathered her things. The officer thought it was very strange how Duve was acting. Duve continued to say that “nothing happened” and that she just “wanted to go home.”

Only Duve didn’t go home. She went to a bar where her good friend Ms. Cairns was working. Cairns testified that she received a call from her friend at roughly 1am where her friend was crying hysterically. Duve advised to Cairns that she was in her car and driving to come see her. When Duve arrived at the bar in her Pajamas, Cairns noticed that her face was red and her eyes were swollen and that she had a runny nose. Ms. Cairns opined that her friend must have been very desperate to get out of whatever situation she was in to go out in public like that. Duve ultimately told Cairns that Jones had choked her. She further told her friend that Jones got on top of her and put his hands around her neck and screamed “I’ll fucking kill you.” Cairns advised that she saw red marks around her friend’s neck and took pictures of the marks at 1:47AM.

Another employee at the bar, Mr. Salvatore, also came in contact with Duve.  He testified that Duve was hysterical, hyperventilating and extremely upset. Salvatore claims that Duve said that she and Jones got into a fight and Jones got on top of her and put his hands around her neck and said, “I’ll fucking kill you.” Salvatore also added that Duve advised that when the police showed up, Jones said, “Be quiet, I’ll handle the cops.” Mr. Salvatore also saw the red marks around Duve’s neck.

Our Issue At Play

Did the trial court error by allowing the testimony from April 30th to come in at trial under the hearsay exception of an Excited Utterance?


Let’s start our discussion with the acknowledgement that there are several exceptions to the general hearsay rule. The exceptions are listed in F.S. 90.803.

FS. 90.803 (2) lists the following hearsay exception:

“A statement or excited utterance relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.”

An example of something routinely considered as an excited utterance by the Courts is the admission of a 911 tape. The logic behind the tape being admissible is that it was made right at or after the time a criminal act occurred.

Our issue at play does not involve a 911 tape that occurred right after an incident. In Our fact pattern, Duve never called the police. Our focus is whether or not what Duve explained to her friends in the early morning on April 30th, 2014 should be considered an excited utterance.

Jones and his legal team argued that Duve’s statements to her friends on April 30th were NOT excited utterances. They argued that Duve’s actions when the police were present (right after the incident took place) negated it being an excited utterance.  The defense specifically noted Duve’s calm demeanor when the officers arrived and the fact that she denied that any foul play had occurred.  Jones argued that the Duve “had time to reflect and did reflect” after the alleged attack as evidenced by the fact that she changed her story.

One of Jones’s contentions was that it could not be an excited utterance because there was a time gap from when Duve spoke to the police and then again later spoke to her friends at the bar. Remember, Duve did not leave until the police were done sorting the incident out. At that point, she then got in her car and went to speak with her friends at a bar located approximately ten minutes away. There was a time gap between when incident occurred and Duve arriving at the bar.

The Court looked at several cases to try and find an answer:

Hutchinson v. State, 882 S0. 2d 943,951 (Fla. 2004) “While an excited utterance need not be contemporaneous to the event, it must be made while the declarant is under the stress of the startling event and without time for reflection.”

Hayward v. State 24 So.3d 29 (Fla. 2009): The statement must be made without time for reflective thought because it is the lack of time to contrive or misrepresent the facts that provides the reliability for such statements.”

Hudson v. State, 992 So. 2d 96, 108 (Fla.2008): “The factors that the trial judge can consider in determining whether the necessary state of stress or excitement is present are the age of the declarant, the characteristics of the event and the subject matter of the statements.”

The Court also looked at other cases that stood for the premise that the declarant’s statement did not qualify as an excited utterance when they previously gave an inconsistent statement. And it makes complete sense. The whole concept behind an excited utterance is that there is added reliability because at the time the statement was given the person who gave the statement is still under the excitement of what happened. Only in this case, Duve’s original statement to the police at Jones’s house differed greatly from what she told her friends at the bar.

The Court looked at the total context of the event and noted that it was a domestic violence incident. One particular case that the Court placed stock in was State v. Acrey, 89 Wash. App. 1012, 1998 WL 54334 (1998). The Court in Acrey concluded that the differences between the victim’s denials of domestic violence and her later statement were not the result of time and the ability to reflect, but rather were the result of the defendant’s intimidating presence during the denials.


The Court found that the statements that Duve gave to her friends at the bar on April 30th, 2014, to be an excited utterance. The Court made this finding even though the statements were delayed and inconsistent from what she originally told the police right after the incident occurred. The Court ultimately concluded that the initial statements Duve gave at Jones’s home where she denied any domestic violence occurred were the product of intimidation or fear of retaliation and not a product of a reflective thought process. The Court opined that Duve was just trying to “keep it together” in front of law enforcement. Furthermore, when Duve arrived at the bar and spoke to her friends she was still visibly shaken and hyperventilating thus still under the stress and excitement from the original event.

This proved to be a very interesting a case. This case stands for the proposition that ultimately an excited utterance does not need to be made right after the event occurred and isn’t automatically going to fail for being inconsistent.

Michael jones was sentenced to jail for the rest of his life.

if you ever require the assistance of a domestic violence attorney, please don’t hesitate to contact the Law Office of Matthew Glassman P.A by clicking here.