final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Martin J. Bidwill, Judge; L.T. Case No.
R. Halpern, Fort Lauderdale, and Arthur E. Marchetta, Jr.,
Fort Lauderdale, for appellant.
Moody, Attorney General, Tallahassee, and Mark J. Hamel,
Assistant Attorney General, West Palm Beach, for appellee.
defendant appeals his conviction and sentence for first
degree murder. He argues the trial court erred in admitting:
(1) a co-defendant's statements because they lacked
indicia of trustworthiness and violated the Confrontation
Clause; (2) letters written by the defendant in jail and
parts of a book authored by the defendant; and (3) a recorded
phone call between the victim's father and the defendant.
We agree with him in part and reverse and remand the case for
a new trial.
State charged the defendant and co-defendant with murder in
the first degree. The trial court severed their cases. The
co-defendant ultimately confessed to his involvement, but
claimed the defendant threatened him into doing it and paid
him for it. He provided the State with a testimonial proffer
in exchange for his plea to a reduced charge and his
agreement to testify against the defendant at trial. The
defendant entered a not guilty plea.
to trial, the defendant moved in limine to preclude the
admission of the co-defendant's statements and recorded
conversations in which he inculpated the defendant. The
motion also sought to exclude the defendant's taped
telephone conversation with the victim's father, letters
he wrote from jail to the co-defendant and another inmate,
and parts of his authored book (The Prince of
Pentium). The court denied the motion.
trial, the victim's neighbor testified that he heard
gunshots on the night of the murder. He looked outside and
saw a man driving a blue-and-white motorcycle down the
the State called the victim's father to testify, the
defendant renewed his objection to the introduction of the
recorded phone call between him and the victim's father
the day after the murder. The trial court overruled the
victim's father explained the defendant had previously
dated his daughter. On the night of the murder, the defendant
called to speak with her. She told her father the defendant
would be coming over to meet with her outside. Her father
asked her not to go out.
ten to fifteen minutes after his daughter went outside, the
father heard several gunshots and a motorcycle speeding away.
When he went outside, he saw his daughter lying on the
the paramedics arrived, the father went into the house to get
dressed and follow the ambulance. The phone began ringing.
When the answering machine picked up, he heard the
defendant's voice asking what happened. The defendant
continued to call the victim's father numerous times
after he returned from the hospital.
next day two detectives came to the victim's home. The
defendant called again while the detectives were there. They
recorded the call.
trial court admitted the recorded phone call, which revealed
the defendant continuously asking the victim's father
what happened the night before. The victim's father
accused him of shooting the victim; the defendant adamantly
denied being involved. The father called the defendant a
liar, a punk, and a junkie.
the call, the defendant reached out to the detectives and
agreed to talk to them. During his conversation with them,
the defendant admitted to talking to the victim on the night
of the murder. He agreed to stop by and see her, but claimed
he never came by. Instead, he went to a friend's home on
his motorcycle. He denied shooting the victim or knowing who
shot her. The detectives saw a white motorcycle with blue
lights parked at the defendant's house.
State prepared to call the co-defendant to testify, the
co-defendant presented a letter to the court. In the letter
he claimed he never killed the victim. He completely recanted
his prior statements. The trial court read the letter and
gave copies to both parties. The State advised the court the
co-defendant was unwilling to testify against the defendant,
and asked the court to declare him unavailable.
of the co-defendant's live testimony, the State offered
the testimony of the co-defendant's friend and his recorded
conversations with the co-defendant. The co-defendant told
his friend that he killed the victim by shooting her five
times in the chest and the defendant paid him to do it. He
provided other details of the murder including the use of the
defendant's motorcycle, where he shot the victim, the
type of gun used, and where he got rid of the gun. He said
the victim "knew too much" and assumed that is why
the defendant hired him to do the job.
his fiancée's urging, the friend met with the
police. He agreed to record his conversations with the
co-defendant, and was paid for doing so. The State entered
these recordings into evidence over defense counsel's
recorded conversations made in casual settings, the
co-defendant told the informant that the defendant wanted the
victim's entire family dead. He explained how he felt
driving away from the scene of the crime. He admitted that he
and the defendant drank beer, smoked pot, and/or took Xanax,
but denied that they were incoherent during the
trial court also allowed the State to admit several letters
written by the defendant over defense counsel's
objections. In these letters, the defendant references
characters, Prince and Pistol G, from the defendant's
book Prince of Pentium. A forensic document examiner
verified the defendant's handwriting.
in custody, the defendant sent the letters to the
co-defendant and another inmate in the same facility. They
contained threats to the co-defendant's girlfriend,
suggested that he was a snitch and was talking too much. He
encouraged the co-defendant to tell the truth and admit that
neither of them were involved in the murder. The co-defendant
provided some of the letters to his attorney.
explain the characters referenced in the letters, the State
admitted a portion of the defendant's book, again over
defense counsel's objection. The trial court commented
that the book had probative value to give context to the
reference to Pistol G within the letters.
jury found the defendant guilty. He moved for a new trial,
which the court denied. The defendant now appeals.
review decisions on the admission of evidence for an
"'abuse of discretion, limited by the rules of
evidence.'" Lucas v. State, 67 So.3d 332,
335 (Fla. 4th DCA 2011) (citation omitted). "'In
considering a trial court's ruling on admissibility of
evidence over an objection based on the Confrontation Clause,
our standard of review is de novo.'"
McWatters v. State, 36 So.3d 613, 637 (Fla. 2010)
THE CO-DEFENDANT'S STATEMENTS AGAINST PENAL
defendant argues the trial court erred in admitting the
co-defendant's out-of-court statements because they
lacked the required "particularized guarantees of
trustworthiness" and violated the Confrontation Clause.
The State responds that the statements were not testimonial
and not subject to Crawford v. Washington, 541 U.S.
36 (2004). It also argues the statements qualified as
statements against the declarant's penal interest under
section 90.804(2)(c), Florida Statutes (2016). The statements
possessed those guarantees of trustworthiness because they
were made to a longtime friend in a personal setting and his
descriptions matched police-gathered information.
The Confrontation Clause
Lilly v. Virginia, 527 U.S. 116 (1999), the Court
discussed hearsay statements in the context of the
Confrontation Clause. "[T]he veracity of hearsay
statements is sufficiently dependable to allow the untested
admission of such statements against an accused when (1)
'the evidence falls within a firmly rooted hearsay
exception' or (2) it contains 'particularized
guarantees of trustworthiness' such that adversarial
testing would be expected to add little, if anything, to the
statements reliability." Id. at 124-25 (quoting
Ohio v. Roberts, 448 U.S. 56, 66 (1980)).
Court categorized statements against penal interest:
"(1) as voluntary admissions against the declarant; (2)
as exculpatory evidence offered by a defendant who claims
that the declarant committed, or was involved in, the
offense; and (3) as evidence offered by the prosecution to
establish the guilt of an alleged accomplice of the
declarant." Id. at 127.
Court indicated that statements which fall within category
(3) "are presumptively unreliable," causing them to
fall outside the realm of firmly rooted exceptions to the
hearsay rule. Id. at 131. And when they do so, the
statements "must possess indicia of reliability by
virtue of [their] inherent trustworthiness" to be
admitted. Id. at 138. The Court held that ...