from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Mindy F. Solomon, Judge; L.T. Case No.
Haughwout, Public Defender, and Benjamin Eisenberg, Assistant
Public Defender, West Palm Beach, for appellant.
Jo Bondi, Attorney General, Tallahassee, and Mitchell A.
Egber, Assistant Attorney General, West Palm Beach, for
MOTION FOR CLARIFICATION
grant the State's motion for clarification, withdraw our
previously issued opinion, and substitute the following in
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.
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.
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
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.
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.
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.
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."
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***
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