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Byrd v. State

Florida Court of Appeals, Fourth District

June 14, 2017

THOMAS BYRD, Appellant,

         Not final until disposition of timely filed motion for rehearing.

         Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Karen M. Miller, Judge; L.T. Case No. 50-2012-CF-009385-BXXX-MB.

          Jacob M. Noble of Noble Law, Palm Beach Gardens, for appellant.

          Pamela Jo Bondi, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Senior Assistant Attorney General, West Palm Beach, for appellee.

          Damoorgian, J.

         Thomas Byrd appeals his conviction and sentence for one count of first degree murder and one count of armed robbery. On appeal, Appellant argues that the trial court reversibly erred by: (1) allowing the State to introduce a co-defendant's recorded statement to rebut Appellant's alibi witness; (2) admitting certain cell-phone records into evidence; and (3) prohibiting the defense from cross examining the State's crime scene technician about the results of a presumptive gun-shot residue test performed on a co-defendant. We affirm on issues 2 and 3 without further comment. We reverse on issue 1 and remand for a new trial.

         Appellant, along with two other men, Kevin Sammiel and Sherman Colson, were charged with the robbery and murder of Dustin Deckard (the "Victim"). The evidence established the Victim was shot and killed while walking to a friend's home shortly after 12:30 a.m. Surveillance video from a nearby house depicted the Victim walking by while talking on his cellphone at 12:31 a.m. About a minute later, the tape caught a light colored mini-van slowly driving by. Shortly thereafter, a witness saw two men struggling with the Victim, and noticed a "beat-up" "grayish-green" minivan idling nearby. At first, the witness assumed that the van was stopping to call the police, but then saw the two men run towards the van, get in the passenger-sliding door, and watched the van speed away in a northbound direction. The witness called 911 at 12:38 a.m. and the police immediately put out a BOLO for the van. Around the same time, another witness called the police anonymously and reported that there was a dead body lying on the sidewalk.

         The first officer to respond to the BOLO reported seeing what appeared to be a gold colored minivan with damage on the driver's side about three blocks north-east of the shooting at 12:40 a.m. At 12:48, an officer a few miles north spotted a van matching the BOLO description. That officer pursued the van and, as soon as he turned on his overhead lights, a passenger (who turned out to be Appellant) jumped out of the van. The driver (Colson) pulled over and police arrested him and the remaining passenger, Sammiel. Appellant was quickly apprehended with the assistance of a K9 unit. Law enforcement recovered the Victim's cellphone from inside the van. The murder weapon was never found.

         Upon being arrested, Appellant refused to speak with the police. Colson, on the other hand, admitted to his role in the murder and identified Appellant as the shooter. Sammiel spoke with police, but denied any involvement in the robbery and shooting, claiming that an unspecified "they" came and picked him up from his aunt's house presumably after the shooting.

         Relevant to the issue on appeal is Appellant's pretrial motion to sever his case from his two co-defendants' cases because both co-defendants gave statements to police implicating Appellant in the murder. In response to Appellant's motion to sever, the State agreed that both Colson and Sammiel made statements to the police which would constitute inadmissible hearsay if used against Appellant. The State also acknowledged that it intended to offer Colson's statement into evidence and, therefore, agreed that Colson's case should be severed. However, the State informed the court that it did not intend to use Sammiel's statement and, therefore, maintained that Appellant and Sammiel should be tried together. Based on the State's representations, the court granted Appellant's motion to sever as it pertained to Colson but denied it as it pertained to Sammiel.

         Shortly before trial, both Appellant and Sammiel filed a notice of intent to call their aunt as an alibi witness. In response, the State notified the court that it wished to introduce Sammiel's statement to rebut the aunt's statement that both Appellant and Sammiel were at her house at the time of the murder. Based on the State's notice, Appellant renewed his motion to sever, arguing that Sammiel's statement constituted inadmissible hearsay as it pertained to Appellant and if introduced, would violate Appellant's Sixth Amendment Confrontation Clause rights. The court denied Appellant's motion and Appellant and Sammiel were tried together.

         At trial, both Appellant and Sammiel argued that they were not in the van at the time of the shooting and were instead at their aunt's house. In support of this position, they presented testimony from a private investigator, who testified that the aunt's house was only a minute away from the location where the van was spotted before it was ultimately stopped. They also called their aunt as a witness. She testified that on the night of the murder, Appellant, Sammiel, and Colson came to her house around 8 p.m. and the four proceeded to drink and smoke marijuana together. At around 11:45 p.m., they ran out of drugs and alcohol and sent Colson out to get more. According to the aunt, Colson pulled back up in front of her house after 12:30 a.m., "jumped out, " gave the aunt back the money she had given him to buy drugs and alcohol, and told Appellant and Sammiel to get in the van. The three men then left. On cross-exam, the aunt admitted that she waited more than two years to tell anyone about her nephews' purported alibi.

         To rebut the aunt's testimony, the State introduced an excerpt from Sammiel's recorded statement to the police. In that statement, the interviewing detectives confronted Sammiel with the 911 caller's recount and in response, Sammiel stated "what that got to do with me? I just told you, they came and they picked me up from my auntie's house."

         During its closing, the State emphasized the unbelievable nature of the ...

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