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Marshall v. State

Florida Court of Appeals, First District

August 13, 2019

Terry L. Marshall, III, Appellant,
v.
State of Florida, Appellee.

         Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331

          On appeal from the Circuit Court for Duval County. Tatiana Salvador, Judge.

          Terry L. Marshall, III, pro se, Appellant.

          Ashley Moody, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Appellee.

          Per Curiam.

         Terry L. Marshall, III, appeals an order denying a motion brought pursuant to Florida Rule of Criminal Procedure 3.850. For the reasons discussed below, we affirm.

         Marshall was tried for armed robbery with a firearm. The victim and his mother testified for the State. Those witnesses testified that the victim and Marshall were friends from college. Marshall used to push the victim around in his wheelchair when the victim was wheelchair-bound in 2011. At the time of the offense in 2013, the victim was able to walk with the assistance of a walker. He was living in an apartment with his mother and his three-month-old daughter.

         On the day of the offense, Marshall called the victim and asked to visit. Marshall arrived with a man he introduced as his cousin. The victim's mother let the two men into the apartment, and they joined the victim in the living room, where he was watching television with his daughter on his lap. The victim's mother stepped outside to smoke a cigarette.

         Marshall asked the victim for ten dollars. When the victim declined, Marshall pulled a gun, cocked it, and pointed it at the victim's head. The victim pleaded, "[P]lease don't shoot me, not while I got my baby." Marshall took money from the victim's pockets. Marshall's cousin searched the other rooms, taking money that the victim's mother kept on the refrigerator. Overhearing the commotion, the victim's mother rushed back into the apartment. She saw Marshall pointing a gun at the victim and his baby and shielded them with her body. As Marshall left the apartment, he stopped in the door, the gun still pointed at the victim, and said, "You know my name."

         The victim was so upset afterwards that he became physically ill and had to calm down before he could call 911. The victim and his mother separately identified a photograph of Marshall for the police. They both also identified Marshall in court.

         The defense theory was that the victim had fabricated the robbery to seek revenge against Marshall for testifying against the victim's friend, Tim Burrows. During cross-examination, defense counsel elicited testimony from the victim that he knew Burrows. Counsel impeached the victim with prior inconsistent statements from his deposition that he did not know Burrows.

         Defense counsel also called Burrows as a witness. Burrows testified that Marshall had been his codefendant in a criminal case. Marshall cooperated with the State and was released sooner than Burrows, who was still incarcerated at the time of trial. Burrows testified that he grew up with the victim, who was like a brother to him. He stated that it was the victim who introduced him to Marshall.

         Before cross-examination, the State proffered evidence regarding the nature of the charges in Burrows' prior criminal case. Defense counsel objected to this testimony, arguing that the nature of the charges would be too prejudicial because the prior case involved a robbery. Counsel noted that he had filed a motion in limine on this issue, which the trial judge had reserved ruling on. The State argued that defense counsel had opened the door to this line of questioning by eliciting testimony about the prior criminal case. The trial judge ruled that the State could ask Burrows what offenses he had been convicted of in that prior case.

         Burrows then testified that after Marshall became a witness against him, he pled nolo contendere to two counts of robbery, battery on a law enforcement officer, and two counts of battery on a detainee. Burrows indicated ...


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