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Joseph v. State

Florida Court of Appeals, Fourth District

June 27, 2018

KEVIN JOSEPH, Appellant,

          Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Mindy F. Solomon, Judge; L.T. Case No. 06-2016-CF-001383 A.

          Carey Haughwout, Public Defender, and Benjamin Eisenberg, Assistant Public Defender, West Palm Beach, for appellant.

          Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.


          Conner, J.

         We grant the State's motion for clarification, withdraw our previously issued opinion, and substitute the following in its place.[1]

         Appellant Kevin Joseph timely appeals his conviction and sentence after a jury found him guilty of the lesser-included offense of aggravated battery. Appellant asserts the trial court erred in: (1) granting a pretrial motion to admit two recorded statements by the Victim, after determining the Victim was unavailable for trial due to actions by Appellant; (2) denying his motion to reconsider the admission of the Victim's recorded statements and his motion to continue the trial; and (3) admitting a recorded call by Appellant from the jail to an unidentified female. We affirm without discussion the trial court's denial of the motion for reconsideration, the denial of the motion to continue, and the admission of Appellant's jail call. We reverse the trial court's evidentiary determination that the Victim's recorded statements were admissible as a forfeiture-by-wrongdoing exception to the hearsay rule. We remand for a new trial because the error was not harmless.


         As the prequel to the incident that led to the prosecution which is the subject of this appeal, the Victim and his girlfriend ("the Girlfriend") were sent to a residence to clean it. Appellant confronted the Victim and the Girlfriend at the residence and explained that he was in control of the neighborhood and they needed to leave the house they were cleaning. The confrontation escalated to the point of Appellant pointing a gun at the Victim, which the Girlfriend recorded on her cell phone as a video. No physical injuries occurred during that incident.

         A few days later, the Victim was attacked and beaten, which caused him to be hospitalized. The Victim gave a statement recorded by the main investigating officer ("the Detective") a few hours after he was hospitalized, describing the events that caused his hospitalization. The Victim explained that as he was walking to church, he passed a man ("the Co-Defendant") on the street who said, "Oh, is that [the Victim]?" and "Hey, n*****, when I - when my homeboy see [sic] you, he going to f*** you up." The Co-Defendant intentionally blocked the Victim's path, put his face in the Victim's face, and said "N*****, I'm going to make him f*** you up." The Victim then turned around and saw Appellant approaching him, and Appellant asked the Victim whether he remembered him from the prior altercation.

         The Victim said at that point, the Co-Defendant snuck up behind him and tried to punch him, and then the Co-Defendant swung a pipe, which the Victim blocked with his hand. As the Victim and Co-Defendant were wrestling, Appellant approached with another pipe and hit the Victim in his jaw from behind. The Victim was then hit again, but was disoriented and could not determine who hit him. The Co-Defendant and Appellant then ran away. In the recorded statement, the Victim also explained the extent of his injuries. Additionally, he stated that, when he arrived at the hospital, he noticed that he was missing $80 in cash that he was sure he had before he was attacked. In conjunction with the recorded statement, another detective conducted a photo lineup in which the Victim identified Appellant as one of his assailants.

         The Victim was shown a second photo lineup in which he identified the Co-Defendant as the other assailant. In conjunction with the second lineup, the Victim gave a second recorded statement to the Detective. In the second recording, the Victim confirmed that he had identified the Co-Defendant in a photo array. The Victim then explained the incident and his injuries. He also specifically mentioned being on "a liquid diet." The Victim reiterated that both Appellant and the Co-Defendant "jumped [him] with metal pipes" and hit him several times.

         Appellant and the Co-Defendant were arrested and both were charged with attempted first-degree murder and strong arm robbery. Appellant and the Co-Defendant were tried separately. Appellant was incarcerated from the date of his arrest until trial. The Co-Defendant bonded out of jail after his arrest.

         Shortly before trial, the State moved to declare the Victim unavailable for trial and to admit his recorded statements pursuant to the doctrine of forfeiture-by-wrongdoing. The State alleged that Appellant "engaged in efforts with [Co-Defendant] to prevent or persuade [the Victim] from testifying in th[e] trial."

         The State's motion included four attachments. The first attachment was a DVD that contained seventy-eight recorded jail calls between Appellant and various individuals totaling approximately thirty hours in length. The motion alleged that the pertinent excerpts from the jail calls were as follows:

In a recorded jail call on February 5, 2016, [Appellant] states, "Don't pay none of that s*** until we go to court. This n**** out here demanding ransom." He also states, "YB over in the village cause they out there lookin for bro because he's lying on the papers. The whole neighborhood knows what happened."
In a recorded jail call on February 6, 2016, [Appellant] states, "We gotta catch this f*** n**** and bring his ass to justice."
In a recorded jail call on April 6, 2016[, ] [Appellant] states, "I gave my lawyer all the names and he's gonna demand a speedy trial. Now all we gotta do is find buddy and see whatever else we gotta take care of." He also states, "We gotta stay strapped and swipe this s*** out."
In a recorded jail call on April 8, 2016[, ] [Appellant] states, "I'm gonna send his ass to the hospital. N****s on liquid diets, needing surgery. I do this shit. I do ...

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