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Larry v. State

Florida Court of Appeals, Second District

March 23, 2018

HARLEME L. LARRY, Appellant,


          Appeals from the Circuit Court for Pasco County; Pat Siracusa, Judge.

          Howard L. Dimmig, II, Public Defender, and Dan Hallenberg, Special Assistant Public Defender, Bartow, for Appellant.

          Pamela Jo Bondi, Attorney General, Tallahassee, and David Campbell, Assistant Attorney General, Tampa, for Appellee.

          SILBERMAN, Judge.

         Harleme L. Larry appeals his judgment and forty-year sentence for murder in the first degree that was committed during a robbery when he was fourteen years old.[1] Larry raises issues regarding the denial of the motion to suppress his statements, incomplete jury instructions, and the exclusion of evidence the defense sought to admit at trial. Because Larry was denied his right to a fair trial by the exclusion of evidence that another person confessed to the murder, we reverse and remand for a new trial. We also direct the trial court on remand to instruct the jury on robbery, the underlying felony for felony murder. We have determined that no error occurred regarding the remaining issues and do not address them.

         This charge arose after four Hispanic men were robbed while they were sitting on the steps outside a home on Oak Street shortly after midnight on July 10, 2010. The men had only a few dollars, and the perpetrator shot one of the men in the chest. That individual died as a result of the shooting. The gun was never recovered. Witnesses testified that the perpetrator was wearing a dark bandanna, possibly black, and carrying a black bag.

         About two days later, Larry went to the sheriff's office. He confessed that he shot the man but stated that he was not robbing the men and that he acted in self-defense. But at trial, Larry testified that he was "taking the rap" for his older friend, Derrick Wright. His defense was that Wright committed the robbery and shooting and that Wright had talked Larry into giving a false confession. Wright and his aunt had taken Larry to the sheriff's office so that Larry could make his confession.

         After Larry confessed, a black bag was found in his residence, and the bag had gunshot residue in it. At trial, Keith Cheatum testified that he saw a black male walking near Oak Street in the early morning of July 10, 2010. The male had a red bandanna on his face and was carrying a black bag. The male asked Cheatum what he was looking at, and Cheatum responded that he was not looking at anything. Cheatum identified the bag found in Larry's residence as looking like the bag he saw the male carrying. Cheatum was later recalled and testified that he had known Wright since he was a young child and knew his voice. Cheatum was certain that the man he encountered on the street that night was not Wright.

         Larry sought to introduce Edner Dely's testimony that Wright had admitted to committing the crime. Larry proffered Dely's testimony, but the trial court excluded it after considering the factors set out in Chambers v. Mississippi, 410 U.S. 284 (1973). Larry also proffered Wright's testimony in which he denied killing the victim and stated that he had never seen or spoken to Dely until the day of trial. Larry sought to impeach Wright with his out-of-court statement to Dely. The trial court prohibited the impeachment, stating that the defense could not impeach Wright with a statement that it knew he was not going to admit to making and that the defense could not call Dely to confront Wright with the statement. Based on the ruling, the defense chose not to call Wright as a defense witness.

         On appeal, Larry recognizes that Wright's alleged confession to Dely is not admissible as a hearsay exception for a declaration against penal interest under section 90.804(2)(c), Florida Statutes (2013), because Wright was available to testify at trial. Larry instead argues that his due process right to a fair trial was violated.

         In Lightbourne v. State, 644 So.2d 54, 57 (Fla. 1994), the court observed that in Chambers the United States Supreme Court determined that due process concerns can overcome hearsay rules. Thus, "a trial judge may be required to admit a third-party confession under constitutional principles, even if it does not qualify as a declaration against penal interest under the state law of evidence." Bearden v. State, 161 So.3d 1257, 1265-66 (Fla. 2015). The Chambers Court considered four factors in determining when an out-of-court statement is admissible:

(1) the confession or statement was made spontaneously to a close acquaintance shortly after the crime occurred; (2) the confession or statement is corroborated by some other evidence in the case; (3) the confession or statement was self-incriminatory and unquestionably against interest; and (4) if there is any question about the truthfulness of the out-of court confession or statement, the declarant must be available for cross-examination.

Bearden, 161 So.3d at 1265 (citing Chambers, 410 U.S. at 300-01). The main consideration is whether the statement has sufficient indications of reliability. Id. at 1265 n.3. The Florida Supreme Court pointed out that a defendant's statement can serve as corroboration and that Chambers required corroboration by "some other ...

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