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Balzourt v. State

Florida Court of Appeal, Second District

December 9, 2011

Mourad BALZOURT, Appellant,
STATE of Florida, Appellee.

Page 831

James Marion Moorman, Public Defender, and Julius J. Aulisio, Assistant Public Defender, Bartow, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Timothy A. Freeland, Assistant Attorney General, Tampa, for Appellee.

MORRIS, Judge.

Mourad Balzourt appeals his convictions for first-degree murder and abuse of a dead human body. Because the State's evidence was insufficient to prove premeditation, we conclude that the trial court erred in denying Balzourt's motion for judgment of acquittal on the charge of first-degree murder. We also conclude that the trial court abused its discretion in

Page 832

admitting Williams [1] rule evidence. Accordingly, we reverse and remand for a new trial on the charges of second-degree murder and abuse of a dead human body.

Balzourt was convicted of murdering his girlfriend, Solymarie Roman, and setting fire to her body in the woods in Polk County near Poinciana, Florida, in the morning hours of November 1, 2007.[2] The cause of death was asphyxiation, and the State's theory, based on the evidence, was that Balzourt manually strangled the victim. Prior to the trial, the State sought to admit Williams rule evidence that in 2000, Balzourt strangled his then-wife to the point of unconsciousness. The trial court allowed the State to introduce such evidence for the purpose of proving that Balzourt was the perpetrator of the charged murder.

On appeal, Balzourt contends that the trial court erred in admitting the Williams rule evidence because it was not similar enough to the charged homicide to be offered for purposes of proving identity. He claims that the only similarity between the collateral offense and the charged offense is manual strangulation, which is neither unique nor uncommon. Balzourt argues that the collateral evidence was irrelevant and offered only to show his bad character and propensity to choke women.

" [C]ollateral-crime evidence, such as bad acts not included in the charged offenses, is admissible when relevant to prove a material fact in issue, but is inadmissible when the evidence is relevant solely to prove bad character or propensity." Wright v. State, 19 So.3d 277, 291-92 (Fla.2009); see § 90.404(2)(a), Fla. Stat. (2007). " ‘ When the purported relevancy of past crimes is to identify the perpetrator of the crime being tried, [Florida courts] have required a close similarity of facts, a unique or " fingerprint" type of information, for the evidence to be relevant.’ " Kimbrough v. State, 700 So.2d 634, 637 (Fla.1997) (quoting State v. Savino, 567 So.2d 892, 894 (Fla.1990)).

The mode of operating theory of proving identity is based on both the similarity of and the unusual nature of the factual situations being compared. A mere general similarity will not render the similar facts legally relevant to show identity. There must be identifiable points of similarity which pervade the compared factual situations. Given sufficient similarity, in order for the similar facts to be relevant the points of similarity must have some special character or be so unusual as to point to the defendant.

Drake v. State, 400 So.2d 1217, 1219 (Fla.1981). Evidence of a prior act " ‘ is not competent to prove the commission of a particular act charged against him, unless connected in such a way as to indicate a relevancy beyond mere similarity in certain particulars.’ " Williams v. State, 110 So.2d 654, 659 (Fla.1959) (quoting 13 Fla. Jur. Evidence § 140).

In this case, we must consider evidence of two incidents of manual strangulation committed by a man against his domestic partner at the time. The Williams rule testimony was that Balzourt strangled his ex-wife during an argument. They pushed and hit each other back and forth, and then Balzourt strangled the ex-wife, causing her to lose consciousness. The State's theory in this murder case was that Balzourt choked the victim during an argument over the victim's ex-boyfriend, William Jusino.

Page 833

But the State presented no evidence regarding the circumstances leading up to and surrounding the actual physical event resulting in the victim's death. The State was only able to present evidence on the cause of death, i.e., asphyxiation with evidence of manual strangulation and " burking," [3] but not the circumstances leading up to the death. The State presented Jusino's testimony that the victim called him in the middle of the night hours before her body was found. During the phone call, the victim told Jusino that things were over between her and Jusino and Jusino could tell that the victim was with Balzourt because Jusino could hear Balzourt in the background telling the victim what to say and to speak English.[4] Jusino testified that he could tell that the victim was sad because her voice was broken, but he did not testify that he heard Balzourt and the victim arguing during the phone call.

As for the circumstances surrounding the victim's death, the medical examiner agreed that there was evidence indicating that the victim may have been " burked." In arguing for a judgment of acquittal on premeditation, the defense pointed out that the evidence was not inconsistent with the theory that the perpetrator was sitting on the victim's chest, strangling her, and hitting her head on the ground. The ex-wife had been standing when she was strangled, but when she regained consciousness, she found herself lying on the floor. The medical examiner testified that it only takes seconds to render a person unconscious by strangulation, whereas it takes approximately two minutes to kill somebody by strangulation and " burking" and three to four minutes to kill somebody by strangulation alone. Because the State did not present evidence of the circumstances leading up to the victim's death and because the evidence of the physical acts committed against the victim varied from the physical acts committed against the ex-wife, we cannot compare the two incidents to determine whether a domestic dispute and physical incident occurred between Balzourt and the victim similar to the one involving Balzourt and his ex-wife.

One circumstance that cuts against a finding of similarity is the fact that Balzourt's ex-wife did not die as a result of the strangulation, yet the victim in this case died as a result of the strangulation. This distinguishing factor between the Williams rule evidence and the charged offense weighed greatly in Berube v. State, 5 So.3d 734, 741 (Fla. 2d DCA 2009). In Berube, the defendant was charged with murder by strangulation, and the State was permitted to introduce evidence that the defendant had physically battered and raped two other women in the past. This court considered " [m]ost important[ ] [the fact that] neither rape victim was murdered," unlike the murder victim in the charged case. Id.

The Florida Supreme Court's case in Drake is instructive on both similarity and uniqueness. In Drake, the murder victim met the defendant at a bar, left with him, and was later found dead with her hands bound behind her back. The State introduced Williams rule evidence that " on two prior occasions[,] [the defendant] had ...

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