final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Fifteenth Judicial Circuit,
Palm Beach County; Karen M. Miller, Judge; L.T. Case No.
M. Noble of Noble Law, Palm Beach Gardens, for appellant.
Jo Bondi, Attorney General, Tallahassee, and Georgina
Jimenez-Orosa, Senior Assistant Attorney General, West Palm
Beach, for appellee.
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.
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.
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.
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
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.
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
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.
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
its closing, the State emphasized the unbelievable nature of