Florida Criminal Law Opinions

ALWIN C. TUMBLIN, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. SC07-2111.

Supreme Court of Florida.

February 25, 2010.

An Appeal from the Circuit Court in and for St. Lucie County, James Walter McCann, Judge — Case No. 562004CF003127B.

Carey Haughwout, Public Defender, and Paul E. Petillo, Assistant Public Defender, Fifteenth Judicial Circuit, West Palm Beach, Florida, for Appellant.

Bill McCollum, Attorney General, Tallahassee, Florida, Lisa-Marie Lerner and Leslie Campbell, Assistant Attorneys General, West Palm Beach, Florida, for Appellee.

PER CURIAM.

Alwin C. Tumblin appeals from a judgment of conviction of first-degree murder and a sentence of death, as well as a conviction for robbery with a firearm. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons set forth below, we reverse the convictions, vacate the sentence of death, and remand for a new trial. We conclude that reversible error occurred in the guilt phase of the trial, which affected both the guilt phase and the penalty phase, when a police officer gave his opinion of the truthfulness of a key State witness.

FACTS AND PROCEDURAL HISTORY Overview

This case involves the May 24, 2004, murder of Jimmy Johns, the owner of Jimmy’s Auto Clinic in Fort Pierce, Florida. Forensic Pathologist and District Medical Examiner Dr. Roger Mittleman testified that Jimmy Johns died as a result of a bullet that entered the left side of his head, traveled through his brain, and lodged in the right rear portion of his brain. Gun powder stippling on the left side of Johns’ head indicated a close but not contact gun shot.

On the day of the murder, Elizabeth Hobson, who worked at the Auto Zone store across from Jimmy’s Auto Clinic, heard a gunshot as she was leaving for lunch. She saw Johns lying on the floor of his shop, and then she saw a short, stocky black “kid” running from the shop with a white towel in his hand. A minute or so later, she saw another black man come out of the shop and leave in a yellow car that looked like a retired taxicab. Another witness, Susan Ooley, also saw a yellow taxicab-like car parked near the auto shop at the time of the murder. She saw someone running from the shop but did not see anything in his hand. Employees of the shop returned from lunch a little after 1 p.m. and found Johns’ body.

Alwin C. Tumblin, age twenty-five at the time, was ultimately indicted and convicted for the murder as well as the armed robbery of Johns. During the investigation, Tumblin’s friend, Anthony Mayes, was also considered to be a suspect. When finally located by Sheriff’s Department Lieutenant Dennis Smith, Mayes was handcuffed and taken into custody. He immediately said he wanted to talk, but only to Lieutenant Smith, who had previously spoken with his grandmother. Mayes was taken to the Fort Pierce police station where he was advised of his Miranda¹ rights. He was informally interviewed by Lieutenant Smith before giving a taped interview to Detective Joe Coleman and State Attorney Investigator Jeff Hamrick.² Mayes’ statements to police implicated Tumblin as the planner of the crimes and as the person who shot Jimmy Johns. No DNA evidence linked Tumblin directly to the murder. The only eyewitness who testified that Tumblin shot Johns was Mayes, who entered a plea to second-degree murder and agreed to testify at trial in exchange for a maximum sentence of twenty years. We discuss the evidence in detail because an error occurred in the guilt phase, during Lieutenant Smith’s testimony concerning the statements made by Mayes, which deprived Tumblin of a fair trial.

Trial Testimony

Jimmy Johns was the owner and operator of Jimmy’s Auto Clinic. On the morning of May 24, 2004, Tumblin, his girlfriend Theresa York, and his friend Anthony Mayes, were at the home of Tumblin’s sister, Rhonda Tumblin. At the time, Tumblin and York were both staying in Rhonda’s home and sleeping in her bedroom. Mayes testified that Tumblin began “boosting” him up that morning, or attempting to persuade him to participate in a robbery and that Tumblin said he would pay Mayes $300 to act as a lookout. Mayes testified that he heard Tumblin tell York to call Wal-Mart about some bullets and that Tumblin and York then left for a short time. Mayes testified that Tumblin and York later returned to Rhonda’s home and, sometime around noon on May 24, Tumblin and Mayes left in York’s yellow Grand Marquis automobile, which looked like a retired taxicab. Mayes testified that Tumblin took a gun from the waistband of his pants and placed it under the seat of the car, and that Tumblin commented during the ride that “he was gonna kill everybody that exists as if whoever is in there.”³ According to Mayes, they proceeded to Jimmy’s Auto Clinic with Tumblin driving and Mayes in the passenger seat, a trip that took about twenty to twenty-five minutes. On arrival, Tumblin parked the car in front and walked into the auto shop. Mayes testified that he followed Tumblin into the shop where they waited outside the shop office while Johns completed a telephone call.

Mayes testified that when Johns approached them, Tumblin first asked him about a car part but then asked, “Where is it at?” When Johns indicated that he did not understand, Tumblin asked, “Where is the money at?” Mayes testified that after Johns gave Tumblin money and a money clip from his pocket, Tumblin pulled the gun from the back of his pants waistband and held it to Johns’ head. Mayes reported that Tumblin asked Johns, “What you think about this?” According to Mayes, Tumblin then pulled the trigger, killing Johns, who was sixty-seven years old. Mayes said that as he started to run away, he saw Tumblin go toward Johns’ office, where it was later discovered that envelopes with checks to pay the shop’s bills were missing.

When Tumblin returned to his sister’s house, Jean Nicole Ruth, a friend of Mayes, heard Tumblin say, “The cracker dead and Head [Mayes' nickname] ran.” Jean Nicole Ruth also testified that when Tumblin returned, she saw him with some papers and envelopes. She said York and Rhonda opened the envelopes and Rhonda took them outside, along with a pan. Although she did not see it, she concluded that Rhonda burned them in the backyard. No envelopes, checks or burnt remains were ever recovered. Later, Rhonda Tumblin borrowed Jean Nicole Ruth’s yellow Buick to go to Rhonda’s aunt’s house. On the way, Rhonda was hailed down by Tumblin, who was on foot next to the road, and by York, who was standing across the street. Rhonda picked up Tumblin and York in the Buick and they drove to Tumblin’s aunt’s house. In the meantime, based on reports from witnesses at the scene, the police were looking for a yellow car that looked like a retired taxicab. When Tumblin, his sister, and York arrived at the aunt’s house, they found no one home but, while there, were approached by the police, who inquired about the names of the driver and passengers. Tumblin’s sister was then allowed to drive away with Tumblin and York, but about ten minutes later, when they drove into an Amoco station, the car was surrounded by police, who took them to the police station. This second stop was the result of a police helicopter spotting another yellow car, the car that resembled a taxicab, parked behind Rhonda Tumblin’s house. Tumblin’s sister testified that as they were driving to the gas station, they saw the helicopter and Tumblin said, “The cracker must be dead.”

When the police went to Rhonda’s house to investigate, Officer Kathleen Murphy saw a black woman flee the home through a window. The woman was later identified as Jean Nicole Ruth. A search warrant was obtained to search the house, and the search revealed a .32 caliber revolver under some clothes on a chair in the room where Tumblin and York had been sleeping. Four Remington-Peters bullets were found under a pillow on a bed. Evidence at trial showed that at 9:53 a.m. on May 24, 2004, a person with a birth date of November 11, 1981, bought Remington-Peters ammunition at the Fort Pierce Wal-Mart. Theresa York’s birth date, according to her driver’s license, is November 11, 1981.

Fort Pierce police officer Hall Soloman found an expended pistol cartridge lying outside the auto repair bay door at the crime scene and found an unfired Remington-Peters bullet inside the doorway of the bay. Mark Chapman, firearms expert with the Indian River Crime Laboratory, testified that the bullet removed from Johns’ brain and the cartridge casing found at the scene were fired from the same .32 caliber revolver found in the search of Tumblin’s sister’s home.⁴

The Verdict and Sentence

On a special verdict form, the jury found Tumblin guilty of both premeditated and felony murder. The jury also found him guilty of robbery with a firearm. The case proceeded to the penalty phase on June 25, 2007, after which the jury unanimously recommended a sentence of death. In the sentencing order entered on September 25, 2007, the court found the following aggravators: (1) Tumblin had prior convictions for felonies involving the use or threat of violence (great weight); (2) the murder was committed while the defendant was engaged in commission, attempt to commit, or flight after commission of a robbery, merged with the aggravator that the murder was committed for pecuniary gain (great weight); and (3) the murder was committed in a cold, calculated, and premeditated manner without pretense of moral or legal justification (CCP) (great weight). The trial court found no statutory mitigation but did find nonstatutory mitigation as follows: (1) poor family life—Tumblin grew up in a dysfunctional family characterized by abuse and neglect (impoverished abusive environment) (some weight); (2) poor mental state—below-average intelligence, behavioral disorders, antisocial impulsive conduct, adolescent brain injury, and suicidal behavior (little weight); (3) Tumblin loves his mother and sister and his children, and they love him in return (little weight); and (4) Tumblin was well-behaved during trial and the penalty hearing (very little weight). We turn now to the guilt phase issues raised by Tumblin.

ISSUES ON APPEAL

Tumblin raises three guilt phase issues in this appeal.⁵ We discuss two of these issues in detail—the admission of Anthony Mayes’ prior consistent statement through the testimony of Lieutenant Smith and Smith’s testimony that essentially vouched for Mayes’ truthfulness. While we reverse based on the second issue, we also discuss the first issue because both arose out of Smith’s testimony relating to Anthony Mayes. We do not reach the third guilt phase issue because it is not an issue that is likely to reoccur in the retrial of this case.⁶ First, however, pursuant to our mandatory duty, we must examine the sufficiency of the evidence.

Sufficiency of the Evidence

Before remanding for a new trial, we must analyze the sufficiency of the evidence because if there was insufficient evidence on which to convict Tumblin of this murder, it is our obligation to reverse the convictions with directions to grant judgments of acquittal. See McDuffie v. State, 970 So. 2d 312, 329 (Fla. 2007). Although Tumblin does not challenge the sufficiency of the evidence in this case, we have a mandatory obligation to review the sufficiency of the evidence in every case in which a sentence of death has been imposed, even if the issue is not raised on appeal. See Jones v. State, 963 So. 2d 180, 184 (Fla. 2007).

The evidence, the most incriminating of which was presented through the testimony of Anthony Mayes, was sufficient for the jury to find that he and Tumblin went to Jimmy’s Auto Clinic to perpetrate a robbery and that, once there, Tumblin demanded and received money from Johns. According to Mayes, Tumblin took a handgun with him in the car and that on the way to the auto shop, Tumblin announced that he planned to kill anyone there who either “existed” or “resisted”—Mayes was not sure which word was used. Mayes also testified that after Tumblin was given money by Johns, who did not resist, Tumblin put a gun close to Johns’ head and pulled the trigger. The medical examiner testified that Johns died from a single gunshot to his left temple and that gunpowder stippling around the entry wound showed the shot to have been fired from very close range. Thus, sufficient competent, substantial evidence supports the jury’s verdict and the judgment of conviction for first-degree murder. We turn now to examination of the testimony of Lieutenant Smith, which we conclude contained error that deprived Tumblin of a fair trial and which necessitates our reversal for a new trial.

The Testimony of Lieutenant Smith

Tumblin contends that the trial court abused its discretion in denying his motion for mistrial made during Lieutenant Dennis Smith’s testimony when Smith testified that he told Detective Coleman he thought that Mayes would tell him the truth. As explained below, we agree that a mistrial should have been granted. Tumblin also contends that the trial court abused its discretion in allowing Lieutenant Smith to tell the jury about Mayes’ prior statement that was consistent with his trial testimony. Although we do not find merit in this claim, we discuss it in some detail because the content and chronology of the testimony of Mayes and Smith are important to our discussion of this issue.

Mayes testified first and told the jury that Tumblin had convinced him to participate in the robbery and that once at Jimmy’s Auto Clinic, Tumblin robbed Johns and without provocation shot him in the head at close range. Later during that same day of trial, Lieutenant Smith, an officer with the St. Lucie County Sheriff’s Department, testified that he arrested Anthony Mayes on July 9, 2004. Mayes was anxious to talk to Smith about the crimes and, even though Smith urged Mayes to wait for the other officers in charge of the investigation, Mayes did recount details of the crime first to Smith. Over objection, the trial court allowed Smith to tell the jury what Mayes told him about the robbery and murder prior to Mayes giving a formal recorded statement on the day he was arrested. Smith testified as follows:

Q. [prosecutor]: Lieutenant, go ahead, what did Mr. Mayes tell you?

A. [Smith]: He told me about being at a house, I believe, on 14th Street earlier in the day, the day of the homicide with the subject he referred to as Man. He told me that Man was — he used the term “boosting.” I understood that to mean encouraging, persuading him to go do a robbery with Man. That Man and his girlfriend went to Wal-Mart to get a box of ammunition, that they called there first. That Man promised him $300 from the proceeds of the robbery. That he told him that — that Man told him that if the victim bucked, meaning if he resists or bucked up, that he was gonna cap him.

Q. Go ahead.

A. And that they went to do the robbery. That he saw Man shoot the victim in the head, told us approximately how far away he was when that occurred.

Q. How far away who was?

A. Mayes. How far away — he told us approximately how far away Mayes was and how far away from the victim Man was when he fired the shot.

Q. How close did he say Man was to the victim when he shot him?

A. As I recall, he — he — very close. I think he may have even stuck the gun to his head.

This prior statement was consistent with the trial testimony Mayes had given earlier that day.

“Generally, prior consistent statements are inadmissible to corroborate or bolster a witness’s trial testimony” because they are usually hearsay, but a prior consistent statement may be admitted as nonhearsay if certain conditions are met. Taylor v. State, 855 So. 2d 1, 22-23 (Fla. 2003). The trial court found that Mayes’ prior consistent statement in this case was admissible under section 90.801(2)(b), Florida Statutes (2008). Section 90.801(2)(b), Florida Statutes, provides that prior statements that are “[c]onsistent with the declarant’s testimony and are offered to rebut an express or implied charge against the declarant of improper influence, motive, or recent fabrication” are not inadmissible hearsay if the declarant testifies at trial and is subject to cross-examination concerning the statement. § 90.801(2)(b), Fla. Stat. (2008).

In reviewing the trial court’s decision to admit Mayes’ prior consistent statement in this case, our standard of review is abuse of discretion. See Hudson v. State, 992 So. 2d 96, 107 (Fla. 2008) (stating that the standard of review of a trial court’s decision to admit evidence is abuse of discretion), cert. denied, 129 S. Ct. 1360 (2009). We conclude that under the circumstances in this case, the trial court did not abuse its discretion when it allowed Smith to testify about Mayes’ prior statement, which was consistent with Mayes’ trial testimony. Defense counsel’s earlier cross-examination of Mayes first suggested that Mayes’ taped statement was only a regurgitation of what Smith had prompted him to say. Other portions of the cross-examination suggested that Mayes was testifying falsely against Tumblin in order to preserve a favorable plea agreement he reached with the State sometime after he gave his initial statements. Defense counsel cross-examined Mayes about the details of his plea agreement and implied that Mayes testified at trial as he did against Tumblin in order to preserve his favorable plea deal and twenty-year sentence.

The cross-examination of Mayes impliedly charged that Mayes testified as he did at trial due to improper influence and that his trial testimony was a recent fabrication intended to preserve his plea deal. Both of these grounds are a basis for admission of prior consistent statements under section 90.801(2)(b), Florida Statutes. Thus, the admission of Mayes’ prior consistent statement was not an abuse of discretion. See Chamberlain v. State, 881 So. 2d 1087 (Fla. 2004) (holding prior consistent statement admissible where it was made after the codefendant was arrested but before plea negotiations with the State because defense counsel implied witness was testifying against the defendant to protect a favorable plea deal and sentence); Rodriguez v. State, 609 So. 2d 493, 500 (Fla. 1992) (holding prior consistent statements admissible because “[d]efense counsel’s references to plea agreements with the state during cross-examination [of the witness] were sufficient to create an inference of improper motive to fabricate”); Jackson v. State, 599 So. 2d 103, 107 (Fla. 1992) (holding that a prior consistent statement was admissible to rebut the inference that the codefendant had a motive to fabricate in light of agreement to testify against Jackson). Although we find that the trial court did not abuse its discretion in allowing Lieutenant Smith to testify about Mayes’ prior consistent statement, that testimony plays a part in our separate determination that other testimony given by Smith, for which Tumblin sought a mistrial, requires a new trial.

During Lieutenant Smith’s direct examination testimony, immediately after Smith recounted Mayes’ prior consistent statement to the jury, the following colloquy occurred:

Q. [prosecutor to Lt. Smith] Did you then recount that or summarize that statement that he gave you to Detective Coleman and Investigator Hamrick when they returned?

A. [Lt. Smith] Yes.

Q. Did you — when you recounted this — when you recounted his version, did you add anything or suggest anything he should say in the future?

A. Only — no, nothing in particular that he should say. I did assure Detective Coleman in front of Mayes that I felt like Mayes would — would tell him the truth.

(Emphasis added.) Tumblin’s counsel objected to this comment on Mayes’ veracity, and the trial court struck the comment. The trial court agreed with Tumblin that Smith “was vouching to another officer that he felt like [Mayes] was going to tell him the truth.”

“[A]llowing one witness to offer a personal view on the credibility of a fellow witness is an invasion of the province of the jury to determine a witness’s credibility.” Seibert v. State, 923 So. 2d 460, 472 (Fla. 2006) (quoting Knowles v. State, 632 So. 2d 62, 65-66 (Fla. 1993)). “It is clearly error for one witness to testify as to the credibility of another witness.” Acosta v. State, 798 So. 2d 809, 810 (Fla. 4th DCA 2001). Moreover, “[i]t is especially harmful for a police witness to give his opinion of a witnesses’ [sic] credibility because of the great weight afforded an officer’s testimony.” Seibert, 923 So. 2d at 472 (quoting Page v. State, 733 So. 2d 1079, 1081 (Fla. 4^th DCA 1999)); see also Acosta, 798 So. 2d at 810. “Police officers, by virtue of their positions, rightfully bring with their testimony an air of authority and legitimacy. A jury is inclined to give great weight to their opinions . . . .” Bowles v. State, 381 So. 2d 326, 328 (Fla. 5th DCA 1980); see also Lee v. State, 873 So. 2d 582, 583 (Fla. 3d DCA 2004) (holding police officer’s comment that witness was credible and positive in her pretrial lineup identification was error requiring new trial); Olsen v. State, 778 So. 2d 422, 423 (Fla. 5th DCA 2001) (”[I]t is considered especially harmful for a police officer to give his or her opinion of a witness’ credibility because of the great weight afforded an officer’s testimony.”); cf. Perez v. State, 595 So. 2d 1096, 1097 (Fla. 3d DCA 1992) (stating that improper admission of police officer’s testimony to bolster the credibility of a witness cannot be deemed harmless).

The case of Acosta v. State is illustrative of the similar problem we face in this case. In Acosta, the district court reversed the conviction for uttering a forged instrument and grand theft because of a statement by a police officer witness that bolstered the credibility of a key state’s witness, Sarah Riley, who had been involved with Acosta in the crimes. 798 So. 2d at 809. When the officer was asked why a handwriting sample was not taken from Riley, he responded, “Up until that point, everything Sarah Riley told me appeared to be truthful.” Id. Acosta’s motion for mistrial was denied but the court gave a curative instruction to the jury to disregard the comment. Id. The Fourth District held that it is clear error for one witness to offer his personal view on the credibility of a fellow witness, especially where the witness offering the view is a police officer, because of the great weight accorded an officer’s testimony. Id. at 810. In reversing, the district court held:

Riley was the key witness for the state, and the state’s case hinged primarily on her credibility. She was an admitted participant in the crime, but was not charged. She testified that she had not, but that the appellant had forged the check. The state’s handwriting expert could only corroborate her testimony to the extent he believed it was “probable” that it was appellant’s handwriting. He found significant similarities between the signature on the check and appellant’s handwriting, and dissimilarities which could not be accounted for. This expert has various classifications which he uses to explain the strength of his opinion, and this classification was third from the strongest.

Because Riley’s testimony was crucial and the defense’s main emphasis was on her lack of credibility, we cannot agree with the State that the error was harmless or that it was cured by the instruction. We therefore reverse and remand for a new trial.

Id. Similarly, in the instant case, the trial court sustained the objection, struck the comment, and later gave a curative instruction.⁷ Even so, as we explain below, we conclude that the curative measures did not erase the taint of the testimony and, as a result, the trial court abused its discretion in denying Tumblin’s motion for mistrial. “The giving of a curative instruction will often obviate the necessity of a mistrial. However, there are some instances in which the prejudice is so great that it is impossible `to unring the bell.’” Graham v. State, 479 So. 2d 824, 825-26 (Fla. 2d DCA 1985) (citation omitted).

“[T]his Court reviews a trial court’s ruling on a motion for mistrial under an abuse of discretion standard.” Salazar v. State, 991 So. 2d 364, 371 (Fla. 2008), cert. denied, 129 S. Ct. 1347 (2009); see also Perez v. State, 919 So. 2d 347, 363 (Fla. 2005); Floyd v. State, 913 So. 2d 564, 576 (Fla. 2005). The motion should be granted “only when it is necessary to ensure that the defendant receives a fair trial.” Salazar, 991 So. 2d at 372 (quoting Cole v. State, 701 So. 2d 845, 853 (Fla. 1997)). In the present case, as the trial court noted:

Other than Anthony Mayes, is there any evidence that Alwin Tumblin shot Jimmy Johns? The answer is no, it’s all circumstantial and nobody puts him on the scene, nobody sees what happened, nobody saw him with a gun that day, nobody said he drove over there that day. Everything that places him at the scene and committing that murder comes from Anthony Mayes.

The trial court also questioned whether the State could prove premeditation without Mayes’ testimony. Smith’s testimony concerning Mayes’ truthfulness occurred after the jury heard Mayes’ version of events, which also matched Mayes’ prior consistent statement related by Smith to the jury. Because Mayes gave the same version of events to Lieutenant Smith informally that he testified to at trial, Smith’s vouching for his truthfulness could be reasonably inferred by the jury to extend to Mayes’ veracity at trial. Under these circumstances and the facts of this case, in which Mayes gave the only eyewitness testimony that Tumblin committed the murder and did so in a premeditated manner, we conclude that the trial court abused its discretion in denying the motion for mistrial.

We also find that Mayes’ critical eyewitness testimony in the guilt phase was an essential component of the evidence of aggravation relied upon by the State and the court in the penalty phase. The trial court found that the murder was committed in a cold, calculated, and premeditated manner (CCP) based in large part on Mayes’ testimony that Tumblin took a gun from the waistband of his pants and coldly aimed it at Johns, asking, “What you think about this?” This evidence came solely from Mayes. The trial court also relied on Mayes’ testimony that Tumblin convinced him to commit the robbery and be a lookout. Again, this fact came only from Mayes. In finding CCP, the trial court also relied on Mayes’ testimony that on the way to Jimmy’s Auto Clinic, Tumblin told Mayes he would kill everybody “that exists” there. The trial court noted evidence from Mayes that he did not know where the robbery would occur and Tumblin had chosen the target business in advance. The trial court also cited testimony that came only from Mayes that Johns did not resist in any way before being shot.

The heavy reliance by the trial court on testimony given by Mayes in establishing CCP is summed up in the following excerpt from the sentencing order:

In the days, hours and minutes preceding this robbery and murder, the Defendant procured a firearm, obtained ammunition, secured an accomplice (Anthony Mayes), stayed at his sister’s house in Fort Pierce the night before, drove to Jimmy’s Auto Clinic with Anthony Mayes proclaiming that he would commit murder in the process, found Jimmy Johns alone at Jimmy’s Auto Clinic, robbed him without incident and then shot him in the head, execution-style. It is noteworthy that neither the Defendant nor Anthony Mayes attempted to disguise their identities. Further, the Defendant chose to drive to and flee from the murder scene in an emphatically distinct, yellow taxicab-looking car. Also, the Defendant engaged the victim in a conversation about a car part before asking Mr. Johns where the money is. In this otherwise well-planned and orchestrated “robbery” the Defendant took no precautions to prevent or minimize his identification by any would-be victim. To be sure, he had no intentions of leaving any survivors as further evidenced by his statement to Anthony Mayes before the robbery and murder [that he would kill anyone who exists there].

Thus, it can be seen that Anthony Mayes’ testimony—and his credibility before the jury and the court—was instrumental in the jury finding Tumblin guilty of first-degree premeditated and felony murder and in the trial court finding that the murder was cold, calculated, and premeditated. Because Lieutenant Smith improperly volunteered testimony that essentially vouched for Mayes’ credibility in a manner that tied his credibility both to the version of events Mayes gave to officers prior to trial and to the same version of events he gave the jury during trial, we conclude that Tumblin did not receive a fair trial. Although the trial court correctly recognized the error, struck the testimony, and later gave a curative instruction, these corrective measures could not erase the inescapable impression upon the jury that Lieutenant Smith believed the version of events testified to by Mayes was truthful.

Under the facts and circumstances present in this case, we find that Smith’s testimony that he believed Mayes would tell the truth deprived Tumblin of a fair trial. We are thus constrained to reverse and remand for a new trial. This reversal and remand for a new trial obviates the need for us to reach any of the penalty phase claims or the issue of proportionality in this case.

CONCLUSION

Accordingly, for the reasons explained above, we reverse Tumblin’s convictions and sentences, and we remand for a new trial.

It is so ordered.

QUINCE, C.J., and PARIENTE, LEWIS, LABARGA, and PERRY, JJ., concur.

CANADY, J., dissents with an opinion, in which POLSTON, J., concurs.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND IF FILED, DETERMINED.

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Notes:

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CANADY, J., dissenting.

I disagree with the majority’s conclusion that the trial court’s denial of Tumblin’s motion for mistrial constituted an abuse of discretion. I would affirm Tumblin’s convictions and sentences because I conclude that there is no basis for reversal.

Under the abuse of discretion standard that governs our review of the trial court’s denial of the mistrial motion, “the trial court’s ruling should be sustained unless no reasonable person would take the view adopted by the trial court.” Overton v. State, 801 So. 2d 877, 896 (Fla. 2001). A trial court should grant a motion for mistrial “only when the error committed was so prejudicial as to vitiate the entire trial.” Cobb v. State, 376 So. 2d 230, 232 (Fla. 1979). That is, declaring a mistrial is appropriate only when doing so “is necessary to ensure that the defendant receives a fair trial.” Cole v. State, 701 So. 2d 845, 853 (Fla. 1997). “In this State the rule has been long established and continuously adhered to that the power to declare a mistrial and discharge the jury should be exercised with great care and caution and should be done only in cases of absolute necessity.” Salvatore v. State, 366 So. 2d 745, 750 (Fla. 1978); see also England v. State, 940 So. 2d 389, 402 (Fla. 2006); Pagan v. State, 830 So. 2d 792, 814 (Fla. 2002); Thomas v. State, 748 So. 2d 970, 980 (Fla. 1999).

Given this rule, which governed the trial court’s consideration of the motion for mistrial, it is unwarranted to conclude that “no reasonable person would take the view adopted by the trial court” in denying the motion. Overton, 801 So. 2d at 896.

I acknowledge that this Court has recognized that allowing “a police witness to give his opinion of a witness['s] credibility” is “especially harmful.” Seibert v. State, 923 So. 2d 460, 472 (Fla. 2006) (quoting Page v. State, 733 So. 2d 1079, 1081 (Fla. 4th DCA 1999)). The special concern associated with such improper testimony does not, however, justify a categorical rule that such errors are remediable only by declaring a mistrial. The error should instead be assessed within the context of the trial to determine whether corrective action short of a mistrial is sufficient to avoid a prejudicial impact that vitiates the entire trial. As with other errors, such improper testimony justifies a mistrial “only in cases of absolute necessity.” Salvatore, 366 So. 2d at 750.

Here, the context supports the conclusion that a reasonable trial judge could decide that striking the improper testimony and giving a curative instruction would be adequate “to ensure that the defendant receive[d] a fair trial. Cole, 701 So. 2d at 853. The single reference to Mayes’ credibility was indirect and apparently uncalculated. We have previously held that where an improper reference “was isolated and appear[ed] to have been inadvertent,” “[t]he trial court was well within its discretion to determine that the statement did not prevent [the defendant] from having a fair trial.” Merck v. State, 664 So. 2d 939, 941 (Fla. 1995).

Although Mayes’ testimony clearly was a significant part of the State’s case against Tumblin, it is unjustified to conclude that “the state’s case hinged primarily on [Mayes'] credibility.” Acosta v. State, 798 So. 2d 809, 810 (Fla. 2001) (emphasis added). Substantial evidence other than Mayes’ testimony was presented to show not only that Tumblin was involved in the robbery and murder but also that Tumblin—rather than Mayes—shot the victim. Jean Nicole Ruth testified that Tumblin made statements shortly after the crimes occurred implicating himself in the shooting. Tumblin’s sister Rhonda gave testimony establishing that Tumblin owned and possessed the murder weapon prior to the crimes. The evidence at trial also established that shortly after the crimes, the murder weapon was found in Tumblin’s bedroom in Rhonda’s house, a location to which Tumblin—and not Mayes—had returned after the murder. Accordingly, even if Acosta was correctly decided, the instant case is distinguishable.

The trial court did not abuse its discretion in determining that Tumblin was not entitled to a mistrial. The convictions and sentences should be affirmed.

POLSTON, J., concurs.

STATE OF FLORIDA, Appellant,
v.
BRANDON ABBEY, Appellee.

No. 4D09-88.

District Court of Appeal of Florida, Fourth District.

February 24, 2010.

Appeal of non-final order from the Circuit Court for the Seventeenth Judicial Circuit, Broward County, Stanton S. Kaplan, Judge, L.T. Case No. 06-22827 CF 10A.

Bill McCollum, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellant.

Mardi Levey Cohen of the Law Office of Mardi L. Cohen, P.A., Fort Lauderdale, for appellee.

ON MOTION FOR REHEARING

TAYLOR, J.

The defendant timely filed a motion for rehearing directed to our opinion dated November 18, 2009. We grant the motion for rehearing to the extent of substituting this opinion for our original opinion.

In this prosecution for vehicular homicide, the state appeals the trial court’s order granting the defendant’s motion to suppress evidence seized after execution of a search warrant. The trial court found that the affidavit and application for a search warrant for the “black box” from the defendant’s vehicle lacked sufficient facts to establish probable cause for issuance of the warrant. We disagree and reverse.

On September 25, 2006, around 12:48 p.m., the defendant was driving his Corvette northbound on Military Trail in the right lane, when Joseph Hatton, driving a Toyota Camry southbound in the left lane of Military Trail, attempted to make a left turn onto N.W. 5th Street in Deerfield Beach. The cars collided, and Hatton died as a result of his injuries from the crash.

Detective John Grimes of the Broward County Sheriff’s Office investigated the accident and filed a General Affidavit and Application for Search Warrant for the sensing and diagnostic module (”SDM”) (also known as a “black box”) from the defendant’s vehicle. The officer alleged in his affidavit that his investigation “reveal[ed] that [the defendant] . . . was traveling well in excess of the [40-m.p.h.] posted speed limit.” He stated that the “[p]ost impact distance traveled by both vehicles was greater than one hundred twenty five feet. There

Page 2

were no pre-impact tire marks, suggesting that no braking took place before impact. Post impact tire marks along with physical evidence on scene suggest that [the defendant's] vehicle was traveling in excess of 70 [m.p.h.].” The affidavit further reported that an eyewitness “stated that she heard the tires on the vehicle that [the defendant] was driving `chirp’ as the vehicle was changing into a faster gear.”

The officer explained in the affidavit that the “black box” located in the defendant’s vehicle “may contain electronically stored data including, but not limited to, data pertaining to the pre impact speed of the vehicle, airbag system deployment time and status, engine RPM’s, brake circuit status, seat belt circuit status, Delta V readings, and ignition cycles.” A search warrant was issued and executed.

The defendant filed a motion to suppress physical evidence from his vehicle, including information downloaded from the black box. After a hearing on the motion, the trial court granted the defendant’s motion to suppress the evidence. The court concluded “[t]hat the general affidavit and application for search warrant did not contain specific and sufficient facts to establish probable cause that a crime had been committed and that the evidence of that crime would be found in the defendant’s vehicle. Speed alone was insufficient.”

We review an appeal of an order granting a motion to suppress under the following standard of review:

Typically, “[t]he standard of review applicable to a motion to suppress evidence requires that this Court defer to the trial court’s factual findings but review legal conclusions de novo.” Backus v. State, 864 So. 2d 1158, 1159 (Fla. 4th DCA 2003) (citing Batson v. State, 847 So. 2d 1149, 1150 (Fla. 4th DCA 2003)). However, where the issuance of a search warrant based on a probable cause affidavit is at issue, the standard of review is not de novo, but rather a standard of “great deference.” See United States v. Soderstrand, 412 F.3d 1146, 1152 (10th Cir. 2005). This standard of “great deference” is defined as follows:

“The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the `veracity’ and `basis of knowledge’ of persons supplying hearsay information there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of reviewing courts is simply to ensure that the

Page 3

magistrate had a `substantial basis for … concluding]’ that probable cause existed.”

DeLaPaz v. State, 453 So. 2d 445, 446 (Fla. 4th DCA 1984) (quoting Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)); see also Schmitt v. State, 590 So. 2d 404, 409 (Fla.1991) (same). When so reviewing the issuance of a warrant based on a probable cause affidavit, a court is confined to a consideration of the four corners of the probable cause affidavit. See Schmitt, 590 So. 2d at 409; Brachlow v. State, 907 So. 2d 626, 628 (Fla. 4th DCA 2005). In sum, “[a]lthough the reviewing court `should afford a magistrate’s probable cause decision great deference,’ it should `not defer if there is no “substantial basis for concluding that probable cause existed.”‘ United States v. Beck, 139 Fed.Appx. 950, 954 (10th Cir.2005).

State v. Rabb, 920 So. 2d 1175, 1180-81 (Fla. 4th DCA 2006) (alterations in original).

A search warrant for property may be issued “[w]hen any property constitutes evidence relevant to proving that a felony has been committed.” § 933.02(3), Fla. Stat. (2006) (emphasis added).

For the magistrate to determine that probable cause exists to issue a search warrant, two elements must be proven within the affidavit: “(1) the commission element—that a particular person has committed a crime—and (2) the nexus element—that evidence relevant to the probable criminality is likely to be located at the place searched.” State v. Vanderhors, 927 So. 2d 1011, 1013 (Fla. 2d DCA 2006) (citing Burnett v. State, 848 So. 2d 1170, 1173 (Fla. 2d DCA 2003)) (emphasis added).

The Florida Supreme Court “defined `probable cause’ as a reasonable ground of suspicion supported by circumstances sufficiently strong to warrant a cautious person in the belief that the person is guilty of the offense charged. The reasons cited by the police must be sufficient to create a reasonable belief that a crime has been committed. As long as the neutral magistrate has a substantial basis for concluding that a search would uncover evidence of wrongdoing, the requirement of probable cause is satisfied.” Schmitt v. State, 590 So. 2d 404, 409 (Fla. 1991) (internal citations omitted). Further, the “existence of probable cause is not susceptible to formulaic determination. Rather, it is the `probability, not a prima facie showing, of criminal activity [that] is the standard of probable cause.’” Doorbal v. State, 837 So. 2d 940, 952-53 (Fla. 2003) (citing Illinois v. Gates, 462 U.S. 213, 230-39 (1983)) (alterations in original). The issuing magistrate’s duty “is simply to make a practical, common-sense decision whether, given all the circumstances set

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forth in the affidavit before him, . . . there is a fair probability that . . . evidence of a crime will be found in a particular place.” Rabb, 920 So. 2d at 1180 (internal quotations and citations omitted).

Vehicular homicide is “the killing of a human being . . . caused by the operation of a motor vehicle by another in a reckless manner likely to cause the death of, or great bodily harm to, another.” § 782.071, Fla. Stat. (2006). Vehicular homicide, by definition, requires proving reckless driving, which is “driving with a willful or wanton disregard for safety.” D.E. v. State, 904 So. 2d 558, 561 (Fla. 5th DCA 2005); accord § 316.192(1)(a), Fla. Stat. (2006).

We have held that “the rate of speed of a vehicle can be firmly shown . . . to be so excessive under the circumstances that to travel that fast under the conditions is by itself a reckless disregard for human life or the safety of persons exposed to the speed.” Copertino v. State, 726 So. 2d 330, 332 (Fla. 4 th DCA 1999). Speeding above the limit—for example, only five miles per hour above—does not normally prove the gross, wanton, or willful conduct that is associated with the “reckless disregard for human life or safety.” Id. We distinguished between speeding slightly over the speed limit, and speeding at “such an immensely excessive rate that no one could reasonably drive.” Id.

Although other “circumstances” are necessary to make a prima facie showing¹ of vehicular homicide, such as location, time of day, and road conditions, see id., that is not the standard for probable cause in order to issue a search warrant. A magistrate may issue the search warrant “[w]hen any property constitutes evidence relevant to proving that a felony has been committed.” § 933.02(3), Fla. Stat. (emphasis added). Excessive speed is a major factor in finding the crime of vehicular homicide occurred and therefore is relevant to proving the felony was committed, as required by section 933.02(3). See Copertino, 726 So. 2d at 332-33 (affirming conviction of manslaughter by culpable negligence because the defendant was young, inexperienced, operating his vehicle in the late evening with reduced visibility at a major thoroughfare near residential areas in a large city, and his speedometer was locked at 90.41 m.p.h.); Pozo v. State, 963 So. 2d 831, 832-33 (Fla. 4th DCA 2007) (holding that the mere fact that the defendant was driving at an excessive speed, between 67 and 90 m.p.h., in a residential neighborhood was enough to bring his case in line with Copertino and justify denying his motion for judgment of acquittal).

Here, the detective presented enough facts in his affidavit for the magistrate to make a practical, common-sense decision, based on the circumstances set forth in the affidavit, that the defendant committed the alleged crime (the commission element) and that “evidence relevant to the probable criminality [of

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vehicular homicide was] likely to be located at the place searched”—the Corvette’s black box (the nexus element). See Vanderhors, 927 So. 2d at 1013. The affidavit alleged that the accident occurred on a Monday afternoon at 12:48 p.m. at the intersection of North Military Trail and N.W. 5th Street in Deerfield Beach. The affidavit further alleged that the defendant was traveling over 70 m.p.h., “well in excess of the [40-m.p.h.] posted speed limit.” Finally, the affidavit alleged that the vehicles traveled one-hundred-twenty-five feet after impact, that the lack of pre-impact tire marks suggested braking did not occur, and that a witness heard the gears “chirp” as the car accelerated to a faster gear. These facts showing excessive speed support the finding that there was a probability, though not necessarily a prima facie showing, of criminal activity—”operation of a motor vehicle by another in a reckless manner likely to cause the death of, or great bodily harm to, another.” § 782.071, Fla. Stat.

The magistrate needed only to determine whether the facts related in the supporting affidavit were sufficient to justify a probable cause determination, not whether the facts made a prima facie showing that the crime occurred. Doorbal, 837 So. 2d at 952-53. Because the general affidavit and application for the search warrant in this case contained sufficient facts to establish probable cause that vehicular homicide was committed and that the evidence of that crime would be found in the defendant’s vehicle, the magistrate properly issued the search warrant. Accordingly, we reverse the trial court’s order suppressing the evidence.

Reversed.

GROSS, C.J., and HAZOURI, J., concur.

Not final until disposition of timely filed motion for rehearing.

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Notes:

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F.E.H., Jr., a child, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. 4D09-740.

District Court of Appeal of Florida, Fourth District.

February 24, 2010.

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County, Steven B. Feren, Judge, L.T. Case No. 08-9223DL00A.

Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.

GROSS, C.J.

We reverse the circuit court’s finding that an interaction between appellant and a detective was a consensual encounter because, under the circumstances, a reasonable person would not have believed that he was free to disregard the order of a detective and leave the area. The stop and subsequent search therefore violated the Fourth Amendment.

Late one night a detective saw two males standing in the corner of the open parking lot of a closed daycare center. One of them was the 16 year old appellant. The detective got out of his car to investigate why the pair was on the property. At the same time, four or five other officers jumped out of their vehicles and walked past appellant to focus on other persons. When appellant walked away from the parking lot, the detective “called him back.” The detective did not pull his weapon. Appellant testified that he came back because “[h]e was a policeman; I had to come back.”

The area was a high narcotics area, so the detective asked appellant, “Is there anything I should know about? Is there anything on you I need to know about?” Appellant responded, “Yes, I have a bag of marijuana,” and handed it to the detective.

Appellant moved to suppress the seizure of the marijuana. After an evidentiary hearing, the circuit court denied the motion, holding that the stop was a consensual encounter and that appellant’s responses to the detective’s questions were voluntary. Appellant entered a plea of no contest to possession of less than 20 grams of cannabis and reserved the right to appeal the issue raised in the motion to suppress.

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This case implicates the fuzzy constitutional line between a consensual encounter and an investigatory stop. See Johnson v. State, 785 So. 2d 1224, 1228 (Fla. 4th DCA 2001) (acknowledging the “analytical difficulty” in distinguishing a citizen encounter from an investigatory stop). The Florida Supreme Court has described “three levels of police-citizen encounters” for the purpose of Fourth Amendment analysis. Popple v. State, 626 So. 2d 185, 186 (Fla. 1993). A first level “consensual encounter” involves “only minimal police contact,” during which

a citizen may either voluntarily comply with a police officer’s requests or choose to ignore them. Because the citizen is free to leave during a consensual encounter, constitutional safeguards are not invoked.

Id. at 186 (citing U.S. v. Mendenhall, 446 U.S. 544 (1980)). The second level of police-citizen encounter is an investigatory stop. Id. At this level,

a police officer may reasonably detain a citizen temporarily if the officer has a reasonable suspicion that a person has committed, is committing, or is about to commit a crime. In order not to violate a citizen’s Fourth Amendment rights, an investigatory stop requires a well-founded, articulable suspicion of criminal activity. Mere suspicion is not enough to support a stop.

Id. (citations omitted).¹ Thus, an investigatory stop is a seizure for constitutional purposes, which requires a factual basis to support it. However, a consensual encounter is not a seizure, so it may occur without repercussion, even when a police officer has no reason to suspect that criminal activity is afoot.

“[W]hether a person has been seized in the constitutional framework will be judged in accordance with the reasonable-person standard articulated by the United States Supreme Court in United States v. Mendenhall . . . .” G.M. v. State, 19 So. 3d 973, 978 (Fla. 2009). In Mendenhall, a plurality of the Court concluded

Page 3

that a person has been “seized” within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.

G.M., 19 So. 3d at 978 (quoting Mendenhall, 446 U.S. at 554 (emphasis added) (footnote omitted)); see also Michigan v. Chesternut, 486 U.S. 567, 573 (1988) (where Supreme Court adopted the “free to leave” analysis utilized by the Mendenhall plurality to determine whether a seizure has occurred). Whether a seizure has occurred “is determined by what a reasonable person in [the defendant's] position would have concluded based upon the conduct of the officers.” G.M., 19 So. 3d at 980 n.5 (citation omitted).

Here, appellant began to walk away from the detective. He returned to engage the detective as the result of what a reasonable person would believe was an order, so this response was more of a surrender to authority than an act of free will. Florida courts have held that a police officer’s direction to a person to do a particular thing, such as to get out of a car, to take hands out of pockets, or to open a mouth are indicative of a seizure. See Popple, 626 So. 2d at 188 (concluding that deputy’s “direction” for defendant to “exit his vehicle constituted a show of authority which restrained [defendant's] freedom of movement” amounted to a seizure); Kramer v. State, 15 So. 3d 790, 791 (Fla. 5th DCA 2009) (ordering Kramer to open his mouth transformed consensual encounter into an investigatory stop); Johnson, 785 So. 2d at 1228 (explaining that “`[o]rders or even requests to remove a hand from a pocket causes a consensual encounter to become a seizure.’” (quoting Harrison v. State, 627 So. 2d 583, 584 (Fla. 5th DCA 1993))); Grant v. State, 596 So. 2d 98, 100 (Fla. 2d DCA 1992) (finding encounter not consensual where officer ordered defendant to come over and talk with him).

This case resembles D.G. v. State, where this court held that a reasonable juvenile would not feel free to leave, where

the officer did not approach the juveniles, nor did he ask whether they minded approaching him to answer some

Page 4

questions. On the contrary, he ordered them to come over to him, using words of compulsion.

714 So. 2d 644, 646 (Fla. 4th DCA 1998).

Here, the detective stated that when he saw appellant walk down the street, “that’s when I got out of my car and I called out to him.” He stated that he “called him back.” Appellant testified that the detective said, “Yo, come here” and that the detective “told me to come here.” He did not feel free to disobey that directive, because he knew the detective was an officer in the middle of a police action in which four or five other officers were involved. The detective’s words were more indicative of a command than a question, so this case is distinguishable from the line of cases holding encounters to be consensual where a policeman’s words were non-aggressive, indicative of a docile request suggesting that a defendant had the option to refuse. See P.W. v. State, 965 So. 2d 1197, 1198 (Fla. 4th DCA 2007) (police officer in marked car pulled up next to juvenile and asked to speak with him through open window); Chapman v. State, 780 So. 2d 1036, 1037 (Fla. 4th DCA 2001) (holding that one officer asking defendant to “[c]ome here for a minute, can I talk to you,” was not a seizure); State v. Crumpton, 676 So. 2d 987, 988-89 (Fla. 2d DCA 1996) (asking defendant if “he `minded’ coming over to the unit and telling the officer what he had placed in his pocket” did not constitute a seizure).

Another factor supporting the finding of a seizure is that the detective approached appellant during a police sweep involving other officers. A police action involving a number of officers is a fact that can influence a person’s perception that he is not free to ignore an officer’s command. Thus, in Clayton v. State, 616 So. 2d 615, 616-17 (Fla. 4th DCA 1993), the presence of four officers from a narcotics task force was one factor that “communicated to [the] defendant that he was not at liberty to ignore their presence and go about his business.” Compare J.N. v. State, 778 So. 2d 440, 442 (Fla. 3d DCA 2001) (where three uniformed officers in police cars pulled up alongside juvenile and ordered him to stop, court concluded that a seizure had occurred), with State v. Triana, 979 So. 2d 1039, 1044 (Fla. 3d DCA 2008) (observing that “[t]he presence of police officers alone, absent any indication of coercive words or acts, misrepresentation, deception, or trickery is insufficient to raise an inference of submission to police authority”).

In this case, the convergence of the police officers combined with the detective’s order created a display of authority sufficient to convince a reasonable juvenile that he had no choice but to comply with the

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detective’s direction. For this reason we hold that a seizure occurred when appellant returned to face the detective.

Finally, we reject the state’s alternative argument that the detective had reasonable suspicion to make an investigatory stop of appellant for trespassing. The parking lot where appellant was standing was an open parking lot on a corner, and people walking down the street often cut the corner by walking through the unenclosed lot. The state did not present sufficient evidence that the lot was “posted” within the meaning of subsections 810.09(1)(a) and 810.011(5)(a), Florida Statutes (2008). See Baker v. State, 813 So. 2d 1044 (Fla. 4th DCA 2002); Smith v. State, 778 So. 2d 329, 330 (Fla. 2d DCA 2000). Appellant had already left the premises when he was stopped. See L.J.S. v. State, 905 So. 2d 222, 225-26 (Fla. 2d DCA 2005).

We reverse the conviction for possession of cannabis and remand to the circuit court to discharge the defendant.

MAY and CIKLIN, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

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Notes:

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DOMINGO ANTONIO RODRIGUEZ, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. 4D08-438.

District Court of Appeal of Florida, Fourth District.

February 24, 2010.

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County, Karen M. Miller, Judge, L.T. Case No. 2007CF005184 axxmb.

Glenn H. Mitchell, West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for appellee.

FARMER, J.

Defendant was charged and convicted of three counts of animal fighting for events occurring on a single day in April. Among other things, he appeals the refusal to suppress evidence because a search warrant was invalid and, alternatively, a denial of a judgment of acquittal because the evidence was legally insufficient to support the conviction. Although we agree with both, the latter requires that he be acquitted and discharged.

According to testimony of an investigating officer, she found over 100 animals on his property. In the backyard she found individually caged juvenile roosters, hens and chicks, dogs and parrots. In the garage she found adult roosters all individually caged in pens, travel boxes, and cardboard boxes. Several of the roosters she found had been trimmed and dubbed — meaning their feathers, combs, and wattles had been removed, which reduces the weight of the rooster and helps prevent overheating. One of the roosters had blood on his face.

She found a bag in the home containing lighters, glue sticks, elastic, nail clippers and butane. She testified that the glue sticks are used to attach spurs to the rooster and the nail clippers are used to trim the rooster’s natural spur. Another bag found in the garage held “identibands” to identify individual birds, teasers used to bait another rooster, sparring muffs which guard the rooster’s artificial spur so that it cannot injure its handler, duct tape to protect the rooster’s beak, a stopwatch, ointments and medications, and needles. One of the bottles contained a thick gel which could be used to stop bleeding quickly in

Page 2

fighting roosters. The bag contained antiseptic ointment which could be used for treating wounds and insulin syringes which could be used for injecting steroids. She also found testosterone which could be given to roosters to enhance their aggression. She recovered a blue travel bag commonly used to transport roosters because it keeps them quiet and is less noticeable than a cardboard box. Artificial spurs were also recovered from defendant’s kitchen.

The officer never witnessed any animal fighting during any of her visits to the property. Nor did she witness anyone baiting or attempting to induce birds to fight. Because of the particular breed of the birds, she conceded that if housed together in one cage they would kill each other. She admitted that the proper way to keep these birds was in separate cages. She admitted that arenas are typically used when the birds fight but there was no arena on defendant’s property. Particular breeds of roosters are trimmed and dubbed to signify their breed, similar to trimming certain breeds of dogs. Roosters are also trimmed and dubbed to prevent overheating and mites. Thus, the fact that the roosters in the garage were trimmed and dubbed does not refute innocent possession of such fowl. She had none of the seized items tested for blood. Although she had a CD of video surveillance from the property, she never watched it.

Another officer testified and recounted the items found in defendant’s home discussed by the previous officer. She explained how each item could be used in rooster fighting. She testified she observed B-12 vitamins and hormones on the property, that these are often used to increase lactic acid buildup in the muscles increasing stamina and decreasing fatigue. She decided to arrest defendant because of the items found on his property but never witnessed him training any birds to fight. Nor did she witness any act of animal fighting while she was on the property. She interviewed defendant at the police station, an audio tape of which was played for the jury. In the tape, defendant explains he was preparing to move all of his fowl to a larger property owned by a family friend because he knew his chickens were bothering his neighbor. Defendant also explained that he used to bring some of the items found in his home to the Dominican Republic for his brother to use in cockfights there.

A man who had worked for defendant for three years testified he was there seven days a week caring for the animals. He never witnessed any birds being trained to fight or actually fighting.

The President of the Florida Delegation of the Game Bird Breeders

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Association testified about the game fowl breed. Game fowl is a particular type of domesticated poultry, he explained, suitable for the sport of cock fighting, but they are also used in shows. Game fowl’s natural instinct is to fight other fowl; hence it is appropriate to transport or keep them caged separately. He pointed out that fowl are trimmed to promote fertility and to control mites and are dubbed in order to promote fertility and vigor and prevent fowl pox. The fowl’s natural spur is commonly trimmed in order to prevent injury to the bird’s handlers. Muffs are also put on the birds in order to prevent injury to handlers. Various vitamins, including B-12, are used to promote health in the roosters and testosterone is commonly used to increase fertility. Supplements often labeled and marketed for cock fighting are simply high potency vitamins that are good for promoting the general health of farm fowl. He admitted during cross-examination that the stop watch, thread, and artificial spurs are not necessary for showing game fowl.

Defendant himself testified that he had owned roosters since he was very young in the Dominican Republic. After coming to the United States, he moved to Florida in 1992 when he learned that it was legal to own and breed roosters in Florida. Since 1992, he had owned about 1,500 roosters. He returns to the Dominican Republic about once a year and had visited there one month before the April search of his residence. Cock fighting is legal in the Dominican Republic. He admitted he attended cock fights while there. He conceded he brought some vitamins and supplements for his animals back in the duffel bags recovered by the authorities. He gave them to his animals to keep them healthy. The pill packs labeled with statements regarding cock fighting were purchased in a Palm Beach County feed store and were given to the birds to keep them healthy. He did not give his roosters the supplements to help them fight. He had never “fought” his roosters. He used the Quick Stop gel to stop the bleeding that often occurred after he clipped animals’ nails. He trimmed and dubbed his roosters for looks, breeding purposes, and to help them eat without wattles getting in the way.

Because police officers continuously visited him and threatened that they would one day gain access to his property, about a month before the execution of the search warrant defendant installed a surveillance system consisting of eight cameras. He reviewed the footage of the 28 days leading up to the execution of the search warrant and saw no animal fighting and no baiting of the roosters. Portions of the video were played for the jury and depicted his employee caring for roosters on a daily basis. It also showed defendant filing a rooster’s spur and placing a muff over it so his son could hold the fowl for the first time. The stuffed animal roosters the officer testified could be used for baiting were a gift

Page 4

defendant brought for his son from the Dominican Republic and a souvenir meant to bring a breeder good luck. The artificial spurs recovered from his kitchen drawer were intended to make a necklace.

The Animal Fighting Act provides:

(3) Any person who knowingly commits any of the following acts commits a felony of the third degree…:

(a) Baiting, breeding, training, transporting, selling, owning, possessing, or using any wild or domestic animal for the purpose of animal fighting or baiting;

(b) Owning, possessing, or selling equipment for use in any activity described in paragraph (a);

(c) Owning, leasing, managing, operating, or having control of any property kept or used for any activity described in paragraph (a) or paragraph (b);

(d) Promoting, staging, advertising, or charging any admission fee to a fight or baiting between two or more animals;

(e) Performing any service or act to facilitate animal fighting or baiting, including, but not limited to, providing security, refereeing, or handling or transporting animals or being a stakeholder of any money wagered on animal fighting or baiting;

(g) Betting or wagering any money or other valuable consideration on the fighting or baiting of animals; or

(h) Attending the fighting or baiting of animals. Notwithstanding any provision of this subsection to the contrary, possession of the animal alone does not constitute a violation of this section.

§ 828.122, Fla. Stat. (2007). Two things are clear from this statute. The first is that mere possession of the fowl is not evidence of the crime; the second is that all of the offenses within include the element of animal fighting or baiting. We conclude that this statute requires some evidence of animal fighting or baiting beyond mere possession.

A trial court’s ruling on a motion for judgment of acquittal is reviewed de novo. Burkell v. State, 992 So.2d 848, 851 (Fla. 4th DCA 2008). In cases where guilt is based entirely on circumstantial evidence, a judgment of acquittal should be granted “if the state fails to present evidence from which the jury could exclude every reasonable hypothesis except that of guilt.” Id. (quoting Darling v. State, 808 So.2d 145, 155-56

Page 5

(Fla. 2002)). As the court explained in State v. Law, 559 So.2d 187 (Fla. 1989), the state is required to introduce competent, substantial evidence inconsistent with defendant’s theory of events. 559 So.2d at 189.

Defendant’s testimonial evidence of defense was that he never had any intent to use his birds in illegal animal fighting. Defendant adduced positive evidence that he owned the birds solely as pets, as he had his entire life, and that his birds were not used for fighting or baiting. Moreover he adduced evidence that the materials found on his premises and the condition in which the fowl were being kept was consistent with his evidence of mere possession without fighting or baiting.

The State argues his theory of defense was refuted by the recovery of a stop watch from one of the duffel bags located on defendant’s property and a bird who had blood on his face when the search warrant was executed. We conclude that the recovery of the stop watch and the bird with blood on the face are not legally sufficient, competent evidence inconsistent with his testimony. Law, 559 So.2d at 189. Under the statute defining the crime being tried and the burden imposed by the cases, the State was required to produce additional evidence directly refuting defendant’s evidence. See Johnston v. State, 863 So.2d 271, 284 (Fla. 2003) (reasoning that defendant’s testimony explaining presence of fingerprints at scene in circumstantial evidence case imposed burden on State rebutting explanation to make prima facie case of guilt); Jaramillo v. State, 417 So.2d 257 (Fla. 1982) (circumstantial evidence that defendant’s fingerprints found at murder scene insufficient to support first-degree murder convictions where State failed to adduce evidence fingerprints could have been placed only when murder committed). The failure of the state to do so means that the trial court erred in denying the motion for judgment of acquittal.

Reversed for judgment of acquittal.

HAZOURI, J., and BOWMAN, JOHN B., Associate Judge, concur.

Not final until disposition of timely filed motion for rehearing.

JIMMY TURNER a/k/a TOMMIE WILSON, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. 4D08-2678.

District Court of Appeal of Florida, Fourth District.

February 24, 2010.

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County, Michael L. Gates, Judge, L.T. Case No. 07-14997 CF10A.

Carey Haughwout, Public Defender, and James W. Mclntire, Assistant Public Defender, West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.

WARNER, J.

Appellant, Jimmy Turner, was convicted of fleeing and eluding a law enforcement officer, giving a false name to an officer, and driving while license suspended. He contends that the trial court erred in failing to grant his motion for judgment of acquittal based upon his defense of duress to the fleeing and eluding charge. Because the evidence supporting his defense, namely his own testimony, was rebutted, we affirm. He also moved for judgment of acquittal on the charge of driving while license suspended. Because the state failed to prove the element of knowledge of the suspension, we reverse that conviction.

While on road patrol one evening, a law enforcement officer observed a vehicle operating without headlights. The officer activated his lights and siren and attempted to conduct a traffic stop. The vehicle continued eight blocks without slowing down, turned onto another street, continued one more block, and then turned again into a shopping plaza before coming to a stop. The officer testified that the vehicle did not stop at all when it got to the street where it turned. Two passengers, one of whom was carrying a handgun, exited the vehicle and fled. The officer approached Turner, the driver. At the time Turner was out on bond on another felony. Turner gave the officer a false name, and he was booked into jail under that name. He also told the officer that he did not know his passengers.

At trial, Turner presented a duress defense, claiming that his cousin and a friend were the passengers with him in the vehicle. When the officer turned on his lights and sirens, his cousin “flipped out” and told

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him to go on. He drove about eight blocks with his cousin screaming at him not to stop. At a corner, Turner stopped but his cousin demanded that he continue to drive. His cousin told him that he had bullet proof vests and masks in the vehicle. The cousin was also wanted on an outstanding warrant. Turner, however, was worried that he was in his girlfriend’s car, and the police could take the car if he continued to “go away.” Then his cousin “pulled it out.” Turner then turned the corner. He eventually stopped in a shopping plaza where his cousin and the passenger fled.

On direct, Turner also told his attorney that he never saw the gun. Then he testified that his cousin’s friend was holding it and running away. Yet on cross-examination he said he actually saw the gun.

Turner admitted that he told the officer that he did not know the names of the people in the car, and he never told the officer that he had been threatened by them. He explained this by saying they were “blood.” He also testified that he did not give the officer his real name, because he was a convicted felon and felt he would not be well-treated by the officer. Defense counsel moved for a judgment of acquittal, which the trial court denied. The jury convicted Turner of all charges, and Turner appeals.

Turner claims that he presented, as a defense to the charge of fleeing and eluding, unrebutted evidence that he was under duress. As well, he asserts that the state presented no evidence that he knew that his license was suspended. Therefore, as to those two charges he claims that the trial court erred in denying his motion for judgment of acquittal.

A de novo standard of review applies in reviewing a motion for judgment of acquittal. Pagan v. State, 830 So. 2d 792, 803 (Fla. 2002). In moving for a judgment of acquittal, a defendant admits the facts in evidence and every conclusion favorable to the adverse party that may be fairly and reasonably inferred from the evidence. Lynch v. State, 293 So. 2d 44, 45 (Fla. 1974). A court should grant a motion for judgment of acquittal only if “the evidence is such that no view which the jury may lawfully take of it favorable to the opposite party can be sustained under the law.” Id. The court should submit the case to the jury “[w]here there is room for a difference of opinion between reasonable men as to the proof or facts from which an ultimate fact is sought to be established, or where there is room for such differences as to the inferences which might be drawn from conceded facts.” Id. Generally, an appellate court will not reverse a conviction supported by competent substantial evidence. Pagan, 830 So. 2d at 803. “If, after viewing the evidence in the light most favorable to the State, a rational trier of fact could find the existence of

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the elements of the crime beyond a reasonable doubt, sufficient evidence exists to sustain a conviction.” Id.

Turner submits that his testimony as to the claim of duress, which would exonerate his conduct, was unrebutted. Therefore, it must be accepted by the trier of fact, and the trial court must enter a judgment of acquittal. In Dudley v. State, 511 So. 2d 1052, 1057-58 (Fla. 3d DCA 1987), the court succinctly stated the impact of a criminal defendant’s testimony:

It is well settled in Florida that a defendant’s otherwise reasonable, unrebutted, and unimpeached testimony in a criminal case must be accepted by a trier of fact and — if such testimony is entirely exonerating, the trial court is obligated to enter a judgment of acquittal for the defendant on the crime charged. On the other hand, where the defendant’s exonerating testimony (a) is not reasonable on its face, or (b) is contradicted by other evidence in the case, or (c) is otherwise impeached, the trier of fact is privileged to reject such testimony and convict the defendant of the crime charged, providing, of course, there is otherwise sufficient evidence of guilt.

(footnote omitted). The issue of an affirmative defense should not be resolved by a judgment of acquittal and should be submitted to the jury where the facts are disputed. See Dias v. State, 812 So. 2d 487, 491 (Fla. 4th DCA 2002).

To prove the defense of duress, a defendant must demonstrate six elements:

1) the defendant reasonably believed that a danger or emergency existed that he did not intentionally cause; 2) the danger or emergency threatened significant harm to himself or a third person; 3) the threatened harm must have been real, imminent, and impending; 4) the defendant had no reasonable means to avoid the danger or emergency except by committing the crime; 5) the crime must have been committed out of duress to avoid the danger or emergency; and 6) the harm the defendant avoided outweighs the harm caused by committing the crime.

Driggers v. State, 917 So. 2d 329, 331 (Fla. 5th DCA 2005) (citing Fla. Std. Jury Instr. (Crim.) 3.6(k)).

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Moreover, as this court has articulated:

A threatened harm that is “impending” is not only one that is “temporal, i.e. about to take place, but includes whether there is, no matter the lapse of time, a reasonable opportunity to escape the compulsion without committing the crime.” Wright v. State, 402 So. 2d 493, 497 n.6 (Fla. 3d DCA 1981). An “imminent” danger is one which cannot be guarded against by calling for the protection of the law. Id. Thus, the defense does not apply where a defendant has an opportunity to escape the compulsion without committing the crime. Id.; see Gahley v. State, 567 So. 2d 456, 459 (Fla. 1st DCA 1990); Corujo v. State, 424 So. 2d 43, 44 (Fla. 2d DCA 1982).

Mickel v. State, 929 So. 2d 1192, 1196 (Fla. 4th DCA 2006).

Turner provided equivocal testimony as to the elements of duress. While he testified that his cousin “flipped out” when the officer turned on his lights in an attempt to stop the vehicle, Turner did not mention the gun or any use of force until his cousin told him to turn onto another street. Thus, the evidence is equivocal as to whether the threat of harm was real when he eluded the police for eight blocks. Moreover, his testimony regarding the gun was not consistent, having testified at one point that he never saw the gun and that the friend, not his cousin, was carrying the gun. Secondly, the threat came from his cousin who allegedly pulled the gun on him, yet he refused to divulge his name or this danger to the officers when he finally did stop, because his cousin was “blood.” His explanation that he would not divulge the name of someone who has threatened his life and was capable of inflicting mortal harm simply because he is a relative is less than reasonable. Finally, the officer contradicted his testimony, because the officer testified that Turner did not stop before he turned the corner to the second street, while Turner testified that he did stop. Because Turner’s testimony was not completely reasonable and unrebutted, the court did not err in denying the motion for judgment of acquittal and submitting the case to the jury.

On the motion for judgment of acquittal as to the charge of driving with a suspended license, Turner argued that the state did not present any evidence that he knew his license had been suspended, and he testified that in fact he did not know of it. The Department of Motor Vehicles had suspended his license for failure to pay traffic fines. Its

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record, admitted into evidence, shows that notice of the suspension was sent to Turner pursuant to section 322.251, Florida Statutes.

Section 322.34(2)(a) provides that a person whose driver’s license has been suspended who, knowing of such suspension, drives any motor vehicle upon the highways of this state while such license is suspended, is guilty of a second-degree misdemeanor. Knowledge is satisfied if the person was previously cited for driving with a suspended license, the person admits to knowledge of the suspension, or the person received notice by way of a judgment or order suspending the driver’s license. § 322.34(2), (4), Fla. Stat. The state did not offer evidence that the defendant received the notice from the Department. Thus, it did not prove that he had knowledge of the suspension. See Brown v. State, 764 So. 2d 741 (Fla. 4th DCA 2000). Although the state sought to rely on a rebuttable presumption that the knowledge requirement was satisfied because there was a notation on the Department’s records that a judgment or court order had been entered suspending his license, the presumption does not apply to the administrative suspension for failure to pay traffic fines. See § 322.34(2), Fla. Stat.; Brown, 764 So. 2d at 744; see also Haygood v. State, 17 So. 3d 894 (Fla. 1st DCA 2009).

While the driving record did not prove that Turner had knowledge of his suspended license, the state contends that it presented other evidence from which knowledge could be reasonably inferred. See § 322.34(3), Fla. Stat. (”In any proceeding for a violation of this section, a court may consider evidence, other than that specified in subsection (2), that the person knowingly violated this section.”). Specifically, Turner fled and eluded the police officer who attempted to stop him, and, when he finally stopped, Turner gave the officer a false name. That evidence is equivocal at best to prove knowledge of the suspension. Turner was out on bond on another felony charge. He knew that one of his passengers, his cousin, was wanted on a warrant. His cousin told him that they had masks and bullet proof vests in the vehicle. The cousin and the other passenger escaped from the vehicle, one with a gun. Turner could have been fleeing the officer because of any of these factors. For instance, being a four-time convicted felon, he may have been concerned with being apprehended with a firearm in his vehicle. The evidence does not exclude these other equally reasonable inferences. And in this case, his direct testimony that he did not know his license was suspended because he had not received notice of it was not rebutted or challenged.

In opposing the motion for judgment of acquittal the prosecutor relied on the rebuttable presumption, which Brown shows is not applicable to this case. Moreover, the state erroneously argued to the jury that the

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DMV record created a rebuttable presumption of knowledge, and the trial court instructed the jury on the statutory requirements and rebuttable presumption, never informing the jury that it could rely on other evidence from which knowledge could be inferred. On this record, we are compelled to reverse the conviction, as the state did not prove the element of knowledge to support the charge of driving while license suspended.

Turner also argues that the trial court erroneously denied his motion to discharge counsel so that he could retain private counsel. The record, however, does not show that Turner ever requested to discharge his counsel. On the day of trial, he asked the court if he could hire his own counsel, but the court denied the request unless private counsel was present in the courtroom. Counsel was not present, nor is it clear that private counsel had actually been retained. The public defenders assigned to represent Turner told the court they were ready to try the case but admitted that their first conversation with Turner was the day before. Turner had been in prison and had just been returned to Broward County for this trial. He told the court that he did not know about the trial until he was transferred to Broward. The public defender told the court that Turner had wanted them to call a witness but they informed him that it was too late to list a witness. The public defenders did not request a continuance, and the court seemed anxious to get the case to trial as it had been pending for ten months. Turner had not sought to hire counsel during that ten-month period until he appeared for trial. Under these circumstances, the court did not err in denying his request for private counsel. See, e.g., Evans v. State, 741 So. 2d 1190 (Fla. 4th DCA 1999).

We affirm the convictions for fleeing and eluding and giving a false name. We reverse the conviction for driving on a suspended license with directions to vacate the conviction and sentence.

LEVINE, J. and McCANN, JAMES, Associate Judge, concur.

Not final until disposition of timely filed motion for rehearing.

Turner v. State, No. 4D08-2678 (Fla. App. 2/24/2010) (Fla. App., 2010)

STATE OF FLORIDA, Petitioner,
v.
JOEL DE LA OSA, Respondent.

No. 4D09-5003.

District Court of Appeal of Florida, Fourth District.

February 24, 2010.

Petition for writ of certiorari to the Circuit Court for the Seventeenth Judicial Circuit, Broward County, Carlos A. Rodriguez, Judge, L.T. Case No. 08-4028 CF10C.

Bill McCollum, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for petitioner.

Teresa Williams, Fort Lauderdale, for respondent.

WARNER, J.

The state petitions for a writ of certiorari to review the trial court’s order denying disqualification of defendant’s attorney, Teresa Williams, a former assistant statewide prosecutor in Broward County. It claims that the attorney was in charge of the investigative unit of the statewide prosecutor’s office from which defendant’s prosecution arose. Ms. Williams left her position four years prior to the institution of the charges in this case. We deny the petition.

While the state claims that Ms. Williams had substantial participation in this case as a prosecutor, at an evidentiary hearing on the issue, the trial court found that she did not. Competent substantial evidence supports the trial court’s finding. The task force in which Ms. Williams was involved targeted hundreds of individuals. Ms. Williams had limited involvement as a prosecutor regarding a co-defendant’s bond hearing in another case; names of some witnesses in the current case appeared in notes she took during staff meetings, but with no information related to the present cases; she represented the state at a hearing when two witnesses entered pleas; and she sat in for another prosecutor at a meeting with law enforcement regarding a co-defendant who could become a state witness. The state suggests that it is clear she has an actual or potential conflict because her employment with the task force gave her insight on the state’s strategy and position. However, during the hearing, at a private sidebar discussion between the state and the court without Ms. Williams present, the state did not point to any specific strategic insight or confidential information she would have.

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To grant a writ of certiorari to quash a non-final order, the petitioner must show: (1) the order departed from the essential requirements of law; (2) the order will cause material injury; (3) and the injury must be irreparable, i.e, one for which there will be no adequate remedy after final judgment. Am. Express Travel Related Servs., Inc. v. Cruz, 761 So. 2d 1206, 1208 (Fla. 4th DCA 2000) (citing Martin-Johnson, Inc. v. Savage, 509 So. 2d 1097 (Fla. 1987) and Bared & Co., Inc. v. McGuire, 670 So. 2d 153 (Fla. 4th DCA 1996) (en banc)).

The denial of a motion to disqualify counsel may be reviewed in a petition for writ of certiorari. See Frank, Weinberg & Black, P.A. v. Effman, 916 So. 2d 971 (Fla. 4th DCA 2005); Sultan v. Earing-Doud, 852 So. 2d 313 (Fla. 4th DCA 2003); Matluck v. Matluck, 825 So. 2d 1071, 1072 (Fla. 4th DCA 2002). The party seeking disqualification of counsel has the burden of proving that disqualification is necessary. Herschowsky v. Guardianship of Herschowsky, 890 So. 2d 1246, 1247 (Fla. 4th DCA 2005).

Although the state has cited civil cases supporting its contention that disqualification is necessary, the test for disqualification of counsel in a civil case does not apply in a criminal case where the defendant’s Sixth Amendment rights are involved. See Freeman v. State, 503 So. 2d 997, 998 (Fla. 3d DCA 1987); see also Endress v. Coe, 433 So. 2d 1280, 1281 (Fla. 2d DCA 1983) (observing “the test to disqualify defense counsel in a criminal proceeding will not always be the same as the test that may disqualify counsel in a civil proceeding”).

The Sixth Amendment right to counsel includes a criminal defendant’s right to secure counsel of his own choice. Powell v. Alabama, 287 U.S. 45, 53 (1932). Although there is a presumption in favor of the defendant’s choice of counsel, the presumption may be overcome if the there is a showing of an actual conflict or “serious potential for conflict.” Wheat v. United States, 486 U.S. 153, 164 (1988); see also United States v. Ross, 33 F.3d 1507, 1522-23 (11th Cir. 1994). In moving for disqualification of counsel, the state has the burden of overcoming this presumption. See State v. Ehlers, 631 N.W.2d 471, 481 (Neb. 2001) (concluding the trial court erred in applying presumptions in favor of disqualification that apply in civil cases to disqualification of chosen counsel in a criminal case and concluding the burden of proof should be on the state).

The Ninth Circuit Court of Appeals has addressed the necessity of disqualification in circumstances quite similar to the present case. Like this case, United States v. Washington, 797 F.2d 1461 (9th Cir. 1986),

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involved former government lawyers representing a criminal defendant. In Washington, the Ninth Circuit concluded the trial court erred in disqualifying the defendant’s chosen attorneys who previously worked for a Justice Department “strike force” based on a mere appearance of impropriety. In finding the trial court did not give proper deference to the defendant’s choice of counsel, the court reasoned:

We have grave doubts whether an appearance of impropriety would ever create a sufficiently serious threat to public confidence in the integrity of the judicial process to justify overriding Sixth Amendment rights. It is easy to express vague concerns about public confidence in the integrity of the judicial process. It is quite a different matter to demonstrate that public confidence will in fact be undermined if criminal defendants are permitted to retain lawyers who worked for the government in the field of law implicated by an indictment. We are unwilling to sacrifice a defendant’s Sixth Amendment right to counsel of his choice on such an unsubstantiated premise. Indeed, for all we as judges know in a vacuum, the public very well may have greater confidence in the integrity of the judicial process assured that a criminal defendant’s right to counsel of his choice will not be lightly denied.

Id. at 1466. The court remanded for an evidentiary hearing to determine whether, as a result of their work with the strike force, the attorneys had received confidential information which was material to the government’s case and would give the defense an advantage. See also Robinson v. State, 750 So. 2d 58, 60 (Fla. 2d DCA 1999) (noting that “a criminal defendant has a constitutional right to counsel of choice which cannot be overcome by mere unsubstantiated fears or allegations, and that an order disqualifying a defendant’s counsel over his or her objection must generally be supported by specific findings of fact in order to withstand appellate review”). As noted above, the trial court conducted an evidentiary hearing and determined that Ms. Williams had not obtained confidential information nor had the state proved that her work with the government four years earlier would provide her with an advantage in this case.

The state relies on cases such as United States v. Brothers, 856 F. Supp. 370 (M.D. Tenn. 1992), and State v. Medina, 493 A.2d 623 (N.J. Super. 1985). In each of those cases, however, a former prosecutor was properly disqualified from defending a criminal case where the attorney, while working as a prosecutor, had learned of confidential information or

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evidence critical to the current prosecution. In Medina, for example, the court affirmed the disqualification of the defense attorney who, as a prosecutor, had learned of information bearing on a crucial element of the case against his client. In this case, the state was not able to prove to the trial court’s satisfaction such specific knowledge or involvement in defendant’s case by Ms. Williams.

The state has not shown that the trial court applied the wrong law or otherwise departed from the essential requirements of law. The petition for writ of certiorari is denied.

DAMOORGIAN and GERBER, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

NICHOLAS AGATHEAS, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. 4D06-4870.

District Court of Appeal of Florida, Fourth District.

February 24, 2010.

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County, Krista Marx, Judge, L.T. Case No. 502005CF006013AXXXXMB.

Richard L. Rosenbaum of Arnstein & Lehr, LLP, Fort Lauderdale, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.

ON MOTION FOR REHEARING AND REHEARING EN BANC

DAMOORGIAN, J.

Nicholas Agatheas filed a Motion for Rehearing and Rehearing En Banc. We deny appellant’s motions, withdraw our opinion of December 16, 2009, and substitute the following.

After being tried and convicted of first degree murder with a firearm, Nicholas Agatheas (”the defendant”) appeals. We affirm.

On September 20, 2006, the defendant was arrested for murdering Thomas Villano (”the victim”). The State’s theory at trial was that the defendant hated the victim and retaliated against the victim for allegedly raping one of the defendant’s friends. The State argued that, on the night of the murder, the defendant showed up at the victim’s house and fatally shot him eight times in the head and neck.

The defendant’s former girlfriend testified that weeks prior to the murder, she walked in on the defendant in her bedroom dressed in black clothes wearing a bandana on his face and holding a revolver-type gun in his hand. She described the defendant’s appearance as that of a “gangster.” When she started to laugh, he grew very serious and told her that this was the way he was now.

On the day of the murder, the defendant and the former girlfriend fought, and the defendant made arrangements to stay at a friend’s house that night. The former girlfriend then went to work and did not return

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home until later that evening. Shortly after arriving home, she noticed that the backpack in which the defendant stored his gun was missing from her closet. She had not spoken to the defendant since their fight earlier that day. Several hours after retiring to bed that night, she was awoken by the defendant’s phone call. According to the former girlfriend, the defendant called her from a pay phone and asked her to contact his friend and arrange for his friend to pick him up. The former girlfriend agreed and made the call.

A few nights later, while the former girlfriend and the defendant were watching TV, a news story aired about the victim’s murder. At this time, the defendant bragged to the former girlfriend that he murdered the victim because the victim raped one of his friends. He also admitted to her that he took off his t-shirt and left it at the scene of the crime. After murdering the victim, he drove the victim’s car around listening to music very loudly before abandoning it.

During the investigation of the murder, the police recovered a black tshirt with the defendant’s DNA in the front yard of the victim’s residence. The police also recovered the victim’s vehicle near the pay phone the defendant used to call his former girlfriend on the night of the murder. The radio in the recovered vehicle was set at a high volume. Although there was evidence connecting the defendant to the crime, he was not charged at that time. It was not until the former girlfriend came forward years later that there was sufficient evidence to charge the defendant. With the former girlfriend’s statement, the police arrested the defendant for the murder. At the time of the arrest, the defendant had in his possession a backpack, which contained, among other things, a .45 caliber revolver and latex gloves nestled inside another pair of gloves.

At trial, the State introduced the actual contents of the defendant’s backpack and photographs of the contents, which included the .45 caliber revolver, latex gloves nestled inside another pair of gloves, a flashlight, batteries, a lighter, a screwdriver, and a bandana. However, as established by uncontroverted expert testimony, the gun used to murder the victim was a “.38 caliber gun or a .38 class gun.” The defendant’s counsel did not object at trial to the introduction of this evidence.

On appeal, the defendant claims that his trial counsel was ineffective for failing to object to the introduction of the .45 caliber revolver and the other contents of his backpack, and that the facts giving rise to this claim are apparent on the face of the record. See Jones v. State, 815 So. 2d 772, 772 (Fla. 4th DCA 2002) (”[Ineffective assistance of counsel will

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only be addressed on direct appeal for the first time when the facts giving rise to the claim are apparent on the face of the record, a conflict of interest is shown, or prejudice to the defendant is shown."). The defendant also argues that the introduction of the revolver was highly prejudicial and that it was fundamental error for the trial court to admit this evidence because the State failed to connect the revolver to the murder.

We first address the defendant's ineffective assistance of counsel claim. An ineffective assistance of counsel claim is a mixed question of law and fact that is subject to de novo review. Bowman v. State, 748 So. 2d 1082, 1083-84 (Fla. 4th DCA 2000). In State v. Pearce, the Florida Supreme Court cited the U.S. Supreme Court's ineffective assistance of counsel test in Strickland v. Washington, 466 U.S. 668 (1984), and noted the heavy burden a defendant faces in order to prevail on an ineffective assistance of counsel claim:

[I]n ineffective assistance of counsel claims two requirements must be satisfied: (1) the claimant must identify a particular act or omission of the lawyer that is outside the broad range of reasonably competent performance under prevailing professional standards, and (2) the clear, substantial deficiency shown must further be shown to have affected the fairness and reliability of the proceeding so that confidence in the outcome is undermined. As to the first prong, the defendant must establish that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment. There is a strong presumption that trial counsel’s performance was not ineffective.

994 So. 2d 1094, 1099 (Fla. 2008) (citations and quotation marks omitted).

As to the first prong of the Strickland test, as cited in Pearce, the defendant argues that his trial counsel should have objected to the admissibility of the backpack contents because the State failed to show how the contents were linked to the murder, and the evidence suggested that the defendant had a propensity to engage in criminal activities. We disagree and conclude that this evidence was relevant to corroborate the former girlfriend’s testimony. See Czubak v. State, 570 So. 2d 925, 928-29 (Fla. 1990); Williams v. State, 834 So. 2d 923, 926 (Fla. 3d DCA 2003), rev’d on other grounds, 863 So. 2d 1189 (Fla. 2003) (citing Allen v. State, 662 So. 2d 323, 327 (Fla.1995)); Kirby v. State, 625 So. 2d 51, 53

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(Fla. 3d DCA 1993) (stating that a photograph is admissible if relevant to an issue at trial, either independently or to corroborate other evidence, unless the probative value is outweighed by undue prejudice). On several occasions throughout the trial, the defendant’s trial attorney attacked the former girlfriend’s credibility, arguing, among other things, that she fabricated the story after a private investigator leaked information to her. The .45 caliber revolver and bandana recovered from the defendant’s backpack corroborated her testimony regarding her observations around the time the crime was committed. The photographs of these items were, therefore, relevant to her credibility. We also conclude that the latex gloves and photographs of the gloves were relevant and admissible because latex gloves like the ones found in the defendant’s backpack were found along the path from the victim’s vehicle to the pay phone that the defendant used to contact the former girlfriend on the night of the murder. The defendant’s trial attorney was not ineffective for failing to object to evidence that we conclude was relevant and admissible.

Although we have not found, and the State has not identified, any evidence connecting the flashlight, batteries, lighter, and screwdriver to the murder, we conclude that the erroneous admission of these items did not undermine confidence in the outcome of this cause and that the admission of this evidence was harmless. See State v. DiGuilio, 491 So. 2d 1129, 1139 (Fla. 1986). Accordingly, we hold that the defendant has not stated a claim for ineffective assistance of counsel regarding the trial attorney’s failure to object to these items.

Having concluded that the .45 caliber revolver, bandana, and latex gloves, and photographs of these items were relevant and admissible, and that the admission of the other backpack contents was harmless error, we need not address the defendant’s claim that the admission of this evidence constitutes fundamental error.¹

We find no merit to any of the other issues raised.

Affirmed.

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MAY and CIKLIN, JJ., concur.

—————

Notes:

—————

Elison Mirutil, Appellant,
v.
The State of Florida, Appellee.

No. 3D08-2127.

District Court of Appeal of Florida, Third District.

Opinion filed February 24, 2010.

An Appeal from the Circuit Court for Miami-Dade County, Beatrice A. Butchko, Judge, Lower Tribunal Nos. 05-38115, 05-37017, 05-37018, 05-37019.

Carlos J. Martinez, Public Defender, and Howard K. Blumberg, Assistant Public Defender, for appellant.

Bill McCollum, Attorney General, and Rolando A. Soler, Assistant Attorney General, for appellee.

Before RAMIREZ, C.J., CORTIÑAS, J., and SCHWARTZ, Senior Judge.

CORTIÑAS, J.

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Elison Mirutil was charged with multiple offenses of burglary and theft committed on four separate occasions. He pled guilty to all of the charges, and the trial court imposed juvenile sanctions, committing him to a moderate risk program with aftercare. Mirutil successfully completed the moderate risk program and was close to completing the aftercare program when he was arrested and charged with several new offenses. After a hearing, the trial court granted the request of the Department of Juvenile Justice to terminate supervision, revoked the juvenile sanctions, and set the case for sentencing Mirutil as an adult.

At the sentencing hearing, the State offered evidence of the new violations “to show this defendant’s danger to the community.” Defense counsel objected to the court’s consideration of any evidence related to the new crimes, arguing that it would grossly “prejudice the [c]ourt on unproven charges.” The trial court accepted testimony on the new cases “for purposes of probable cause of the four corners of the arrest affidavits in those cases.” After hearing from the State’s three eyewitnesses to the new offenses, the trial court found that “[t]he State ha[d] proven probable cause that exists that [Mirutil] did in fact commit the new offenses.” It imposed sentences for the previous crimes, totaling seventy-five years in state prison, nearly the maximum dictated by the criminal punishment code scoresheet.¹ Mirutil appeals, arguing that it was improper for the trial court to

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consider the subsequent offenses in sentencing him for the earlier offenses.

“The trial court may not rely upon impermissible considerations when sentencing a defendant.” Cook v. State, 647 So. 2d 1066, 1067 (Fla. 3d DCA 1994). Impermissible factors include a “belief that the defendant likely had committed previous acts of violence although [he] had never been charged with committing any such acts,” Epprecht v. State, 488 So. 2d 129, 130 (Fla. 3d DCA 1986); a “belief that the defendant was guilty of an offense of which he had been acquitted,” id.; and “unsubstantiated allegations of misconduct” and “unsupported speculations.” Reese v. State, 639 So. 2d 1067, 1068 (Fla. 4th DCA 1994).

Mirutil argues that the trial court erred by sentencing him based on testimony concerning his subsequent arrests. The State maintains that “the statute doesn’t require a conviction. . . . It doesn’t say that he needs to be convicted of the new offense, just that he committed a new violation of law.” However, Section 985.565(4)(c), Florida Statutes, allows a “court [to] revoke the previous adjudication, impose an adjudication of guilt, and impose any sentence which it may lawfully impose . . . if the child commits a new violation of law while under juvenile sanctions.” The trial court had already revoked Mirutil’s juvenile sanctions based on the new charges. The sentencing hearing was not tantamount to a probation violation hearing, where the court may consider the new crimes a defendant committed because he violated his probation by doing so; its sole

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purpose was to determine the appropriate sentence to be imposed based on the nature of the offenses for which the court had originally imposed the juvenile sanctions. Accordingly, as in any adult sentencing hearing, it was improper for the judge to consider the details of the pending charges alleged to have occurred after the offenses for which Mirutil was to be sentenced. See Gray v. State, 964 So. 2d 884 (Fla. 2d DCA 2007); Seays v. State, 789 So. 2d 1209, 1210 (Fla. 4th DCA 2001). “The state through its criminal process may not penalize someone merely for the status of being under indictment or otherwise accused of a crime, as it has attempted to do here.” State v. Potts, 526 So. 2d 63 (Fla. 1988). The State cites Whitehead v. State, 21 So. 3d 157, 159-60 (Fla. 4th DCA 2009), for the proposition that pending charges may be considered for their relevance to the sentencing, if the defendant is “given the opportunity to explain or offer evidence” regarding the pending charges. However, this case is readily distinguishable because Whitehead had admitted to the charges, whereas Mirutil maintains his innocence.

“[T]he State has the burden to show from the record as a whole that the trial judge did not rely upon impermissible considerations in passing sentence upon the defendant where portions of the record reflect that the trial judge may have so relied.” Epprecht, 488 So. 2d at 130; see Seays, 789 So. 2d at 1210. The State’s sole argument is that throughout the hearings, the trial judge reiterated that she was

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not considering the new offenses in sentencing Mirutil but was using them solely to prove that Mirutil had violated his probation agreement.

However, testimony regarding the new offenses was the central feature of the sentencing hearing. Discussion of the new offenses comprised forty-eight pages of the transcript, or eighty-five percent of the sentencing hearing, while the testimony of Mirutil’s character witnesses comprised only nine pages. The State presented testimony from three witnesses regarding the new offenses. Their testimony could not have been but extremely prejudicial.

Because we are “not at liberty to assume that items given such emphasis by the sentencing court, did not influence the sentence,” it befalls the State, as we have said, to convince us that these items played no part in the sentence imposed in the present case. While most assuredly there is more than ample justification for the sentence imposed, and our remand in no way precludes this or some equivalent sentence, we are not convinced, as we must be, that these impermissible items played no role in the sentence.

Epprecht, 488 So. 2d at 131 (quoting Townsend v. Burke, 334 U.S. 736, 740 (1948)). “Based on the record and the trial court’s candid remarks it cannot be said that the trial court did not take into consideration impermissible factors in sentencing” Mirutil. Cook, 647 So. 2d at 1967 (citing Epprecht). Therefore, we find that the State has not carried its burden of proving that the trial court did not rely on the later cases in sentencing Mirutil for the previous cases.

Accordingly, we reverse and remand for resentencing by a different judge, “to preclude any perception on [Mirutil's] part that the resentencing may not be

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conducted in a completely fair and impartial manner . . . .” Berry v. State, 458 So. 2d 1155, 1156 (Fla. 1st DCA 1984).

Reversed and remanded.

Not final until disposition of timely filed motion for rehearing.

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Notes:

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EUGENE HARRIELL, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. 4D08-2470.

District Court of Appeal of Florida, Fourth District.

February 24, 2010.

Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St. Lucie County, Cynthia L. Cox, Judge, L.T. Case No. 562006CF005136B.

Philip J. Massa, Regional Counsel, and Genevieve Hall, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Melynda Melear, Assistant Attorney General, West Palm Beach, for appellee.

GROSS, C.J.

Appellant was convicted of robbery, burglary, grand theft, and attempted aggravated battery. We write to address his argument that the state improperly exercised a peremptory challenge against an African-American juror. We affirm, because appellant failed to preserve his claim that the prosecutor’s challenge to a prospective juror was based on nonverbal behavior unsupported by the record.

The state exercised a peremptory challenge against juror Sanders. The prosecutor explained that the juror “was sleeping. He had his eyes closed and I was watching him for ten minutes.” The attorney for the codefendant said that she “didn’t see him sleeping at all,” to which the trial judge replied, “I didn’t see him sleeping either.” However, appellant’s attorney did not dispute the prosecutor’s observation; he said, “Whether he’s sleeping or not, if he had his eyes closed, it doesn’t matter. He can still be listening. He could be resting his eyes.” The trial court allowed the peremptory challenge. Although appellant’s attorney generally objected to the exercise of the challenge, he did not directly refute the prosecutor’s adamant claim that the juror had been sleeping.¹

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Appellant mainly relies on Dorsey v. State, 868 So. 2d 1192 (Fla. 2003). There, the state exercised a peremptory challenge against an African-American woman, on the ground that she “appeared disinterested throughout” and “was sort of staring at the wall.” Id. at 1194. Defense counsel disputed the prosecutor’s observations by pointing out that the woman was attentive and was the only person to indicate that she was happy to be at jury duty. Id. The trial court allowed the state’s challenge, stating that, although he “didn’t notice” the woman’s disinterest, he would “take [the prosecutor] at her word.” Id. at 1195 (brackets in original).

The supreme court reversed and held that the state did not satisfy its burden of production under step 2 of the Melbourne v. State² analysis, since it did not proffer a non-discriminatory reason for the challenge that was either observed by the trial court or supported by the record. Dorsey, 868 So. 2d at 1199-1200, 1202-03. Step 2 of the Melbourne process requires the proponent of a strike to offer a “race-neutral explanation” for the strike. Melbourne, 679 So. 2d at 764. A raceneutral explanation is one where “no predominant discriminatory intent is apparent” from the given explanation, taken at face value. Id. at 764 n.6. In essence, the supreme court in Dorsey created a new hurdle for a proponent of a strike when the basis is nonverbal behavior. Such nonverbal behavior must either be observed by the trial court or supported by the record.

Significantly, however, before this hurdle arises, “opposing counsel [must] challenge[] the factual basis for the explanation [if] the trial court does not observe the behavior, and the record does not otherwise support the reason advanced.” Dorsey, 868 So. 2d at 1196 (footnote omitted). The supreme court was clear on the need for a lawyer to preserve a Dorsey claim: “[T]his issue does not arise where the opponent does not dispute the observation proffered as the reason for the strike.” Id. at 1196 n.3 (citation omitted). Failure to preserve the issue removes the Dorsey hurdle.

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In this case, unlike the codefendant’s lawyer, appellant’s attorney did not preserve his claim as required by Dorsey because he did not expressly dispute the prosecutor’s observations about juror Sanders. At best, the defense attorney conceded that the juror’s eyes may have been closed, but suggested that the juror may not have been sleeping. Sleeping is a race-neutral reason for exercising a challenge against a prospective juror. See Davis v. State, 560 So. 2d 1346, 1347 (Fla. 3d DCA 1990). As the supreme court stated in Dorsey, once the “burden of production is satisfied, the proponent is entitled to the presumption that the reason is genuine.” Dorsey, 868 So. 2d at 1199.

On the remaining issue, we find no error in the trial court’s denial of appellant’s motions for judgment of acquittal, because the state presented evidence sufficient to establish all the elements of the crimes charged. As to the grand theft charge, there was evidence that appellant had possession of the recently stolen van, which gave rise to the presumption that he knew, or should have known, it was stolen. See § 812.022(2), Fla. Stat. (2008).

Affirmed.

MAY and CIKLIN, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

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Notes:

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RODNEY D. HAVENS, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 2D09-4602.

District Court of Appeal of Florida, Second District.

Opinion filed February 24, 2010.

Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Manatee County, Diana Moreland, Judge.

Rodney D. Havens, pro se.

SILBERMAN, Judge.

ORDER RELINQUISHING JURISDICTION FOR ENTRY OF A FINAL POSTCONVICTION ORDER

Rodney D. Havens filed a timely motion for postconviction relief asserting five claims of ineffective assistance of counsel. On August 26, 2009, the circuit court denied four of the claims but dismissed claim five “without prejudice to provide the Defendant the opportunity to make these claims facially sufficient” and to file an

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amended motion within thirty days. This was the appropriate procedure under Spera v. State, 971 So. 2d 754, 755 (Fla. 2007). In the same order, the circuit court notified Havens that he had thirty days to file a notice of appeal, as is required when the court enters a final order on a motion for postconviction relief. See Fla. R. Crim. P. 3.850(g). On September 25, 2009, Havens filed a premature notice of appeal. From our examination of the circuit court clerk’s online docket, however, it appears that Havens also filed an amended motion on that date, which the circuit court denied on October 30, 2009.

An order dismissing a motion for postconviction relief that also provides leave to amend is not a final order for purposes of appeal. Christner v. State, 984 So. 2d 561, 562 (Fla. 2d DCA 2008). Therefore, the circuit court’s notice to Havens that he had the right to appeal the order was erroneous. We have addressed this anomaly in Christner, id., and subsequent cases. See, e.g., Koszegi v. State, 993 So. 2d 133 (Fla. 2d DCA 2008); Lawrence v. State, 987 So. 2d 157 (Fla. 2d DCA 2008).

This case differs from the situation in Christner because it appears that Havens did file an amended motion, which was ultimately denied. However, the circuit court lacked jurisdiction to consider the amended motion after Havens filed his notice of appeal, albeit prematurely. See Fla. R. App. P. 9.600(a); Zinnermon v. State, 685 So. 2d 893 (Fla. 2d DCA 1996).

As in Christner, we elect to relinquish jurisdiction to the circuit court for thirty days for the court to enter a final order encompassing all of Havens’ claims. The circuit court clerk shall immediately supplement the record upon rendition of the final order.

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Jurisdiction relinquished with directions.

WHATLEY and LaROSE, JJ. Concur.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.