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Frasch v. State

Florida Court of Appeals, First District

September 25, 2019

Adam Frasch, 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 Leon County. James C. Hankinson, Judge.

          Michael Ufferman of Michael Ufferman Law Firm, P.A., Tallahassee, for Appellant.

          Ashley Moody, Attorney General; and Virginia Chester Harris, Assistant Attorney General, Tallahassee, for Appellee.

          PER CURIAM.

         A jury convicted Appellant of murdering his wife. He is serving a life sentence in prison for first-degree murder, and this is his direct appeal. He asserts the trial court reversibly erred in three respects: (1) by denying Appellant's motion for new trial without conducting an evidentiary hearing; (2) by allowing the State to introduce hearsay evidence; and (3) by denying Appellant's motion to withdraw a formerly-exercised peremptory challenge. After careful consideration, we reject Appellant's arguments and affirm his judgment and sentence.[1]

         (1) Denial of Motion for New Trial.

         We review the trial court's ruling on the new-trial motion for abuse of discretion. Tunidor v. State, 221 So.3d 587, 603 (Fla. 2017). "In order to demonstrate abuse, the nonprevailing party must establish that no reasonable person would take the view adopted by the trial court." Id. (quoting Stephens v. State, 787 So.2d 747, 754 (Fla. 2001)).

         Appellant alleged a Brady[2] violation as grounds for a new trial. To establish a Brady violation, Appellant had to show the evidence was favorable to him, either because it was exculpatory or because it was impeaching; the State suppressed the evidence, either willfully or inadvertently; and prejudice resulted. Floyd v. State, 902 So.2d 775, 779 (Fla. 2005) (citing Carroll v. State, 815 So.2d 601, 619 (Fla. 2002)). The alleged Brady violation involved a statement purported to be from the victim's family, apparently in Madagascar, the victim's home country. Evidence at trial indicated that the victim had no family in the United States, and that her family had never visited her here. At sentencing, the prosecutor explained that the family statement was unsigned, had been roughly translated from the original language, and the family wanted it to be read at sentencing. Without objection or comment from the defense, the prosecutor read the statement into the record, as follows:

For us, the Frasch – well, it says, For us, the Samira family [referencing the victim's first name], we hold [Appellant] responsible for the death of Samira. According to Samira, she was very afraid that [Appellant] would hurt her, because she had noticed the presence of someone prowling in their home nights before his (sic) death.
As [Appellant] came to see the house, certainly she had to tell him her fears. So, why did [Appellant] not do anything to avoid the worst? At least he would have checked the surveillance cameras in their home.
Why was Samira not with him on the day of her death when they went to the beach? Samira would not have accepted that [Appellant] was busy. We all know that [Appellant] had abducted their two girls and left with his mistress, so why the day of her death did [Appellant] supposedly meet [the mother of one of his other children] en route before going to the beach?
Samira's body was found in the pool. Certainly, it does not – it was not there to swim that day if she would part with her children and her husband at the beach. Why did [Appellant] rush to cremate the body of Samira?
There are so many that lead us to say that [Appellant] is responsible for the murder of Samira. Whether he murdered her or he is the sponsor. And we are certain that he could never ...

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