final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Thomas Lynch and Geoffrey Cohen, Judges; L.T.
Case No. 15-16328 CF10A.
Haughwout, Public Defender, and Benjamin Eisenberg, Assistant
Public Defender, West Palm Beach, for appellant.
Jo Bondi, Attorney General, Tallahassee, and Mark J. Hamel,
Assistant Attorney General, West Palm Beach, for appellee.
Pierre challenges his conviction for attempted first-degree
murder. He argues that the trial court erred in admitting a
multi-colored ski mask that was not used in the crime and by
permitting an expert witness to testify to an area outside of
his expertise. As a result of waiver, we find no reversible
error. Because most of the issues were not properly preserved
for review, we affirm and we write to once more impress upon
counsel the duty to be mindful of preserving the right to
appeal, particularly within the rigors of an ongoing jury
evidence adduced at trial reveals that Pierre shot his
ex-wife. Pierre was wearing a dark ski mask, but his ex-wife
and another eyewitness, his son, saw his face when the mask
slipped off. As Pierre attempted to flee, the son threw a
brick at the passenger side of Pierre's vehicle, smashing
the rearview mirror. Five hours later, Pierre was apprehended
in a rental car with a missing rearview mirror. The state
presented testimony from an expert witness, Brian Silvia,
that he put the broken pieces of the rearview mirror
collected at the scene of the shooting together like a puzzle
and that they matched the rental car. Although the mask worn
in the shooting was never found, police discovered a second
but different, multi-colored ski mask in the rental car.
trial, the defense theorized that Pierre rented the vehicle
for a trip to Georgia and not to facilitate the shooting.
Accordingly, Pierre objected to the introduction of the
second mask as irrelevant. The state argued to the trial
judge that the extra mask was relevant to show "state of
mind, nefarious intent." It was admitted.
appeal, Pierre argues the trial court erred by admitting the
second mask because (1) it was irrelevant and (2) any
probative value was outweighed by the danger of unfair
prejudice. The state counters that the knit cap was relevant
because the presence of the additional mask in Pierre's
rental car proved that the rental car was the same car used
in the attempted murder and proved that Pierre had a
premeditated design to kill the ex-wife. The state also
argues that because Pierre did not argue the mask was
unfairly prejudicial below, the issue was not preserved for
trial court's decision on the relevance of evidence will
not be overturned absent an abuse of discretion, though the
court's decision is limited by the rules of
evidence." Jackson v. State, 89 So.3d 1011,
1020 (Fla. 4th DCA 2012). "If reasonable men could
differ as to the propriety of the action taken by the trial
court, then it cannot be said that the trial court abused its
discretion." Booker v. State, 514 So.2d 1079,
1085 (Fla. 1987) (quoting Canakaris v. Canakaris,
382 So.2d 1197, 1203 (Fla. 1980)).
Three sections of the evidence code provide the framework for
evaluating questions of relevance. The general rule is that
"[a]ll relevant evidence is admissible, except as
provided by law." § 90.402, Fla. Stat. (2007).
"Relevant evidence is [defined as] evidence tending to
prove or disprove a material fact." § 90.401, Fla.
Stat. (2007). Section 90.403, Florida Statutes (2007),
establishes a limitation on the introduction of relevant
evidence: "Relevant evidence is inadmissible if its
probative value is substantially outweighed by the danger of
unfair prejudice, confusion of issues, misleading the jury,
or needless presentation of cumulative evidence."
Jackson, 89 So.3d at 1020 (alterations in original).
because reasonable minds may differ as to whether the second
mask was relevant to the issues of the state's or the
defense's case, we find no abuse of discretion in the
trial court's determination of relevance.
we do not reach the merits of whether the probative value of
the second mask was substantially outweighed by the danger of
unfair prejudice it imposed because Pierre failed to assert
this ground below. For proper preservation, a party at trial
must contemporaneously object and assert the specific legal
basis for his or her objection to the admission of the
evidence. Datus v. State, 126 So.3d 363, 365-66
(Fla. 4th DCA 2013). "[A]n objection on relevance
grounds only will ...