Ronald E. HOWARD, DOC #917501, Appellant,
STATE of Florida, Appellee.
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FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Sarasota County; Debra Johnes
L. Dimmig, II , Public Defender, and Steven L. Bolotin ,
Assistant Public Defender, Bartow, for Appellant.
Moody , Attorney General, Tallahassee, and Cynthia Richards ,
Assistant Attorney General, Tampa, for Appellee.
Howard appeals from his judgment and sentences on two counts
of first-degree murder and one count of felon in possession
of a firearm. We agree with him that the State improperly
presented evidence of his prearrest,
pre-Miranda silence and argued that it proved his
guilt. And although Mr. Howard's lawyer failed to object
when the evidence was introduced and the argument was made,
this is one of those rare cases in which the record on its
face shows that the failure constitutes ineffective
assistance of counsel. We reverse and remand for a new trial
or other appropriate proceedings.
15, 2015, Sarasota police responded to a report of shots
fired in a residential neighborhood. They found the bodies of
two men near a home. Both had been shot with a revolver that
the police found on the ground in front of the home. One of
the men was J.C., who lived in the home with his wife and
son. He was shot in the cheek and neck and died at the scene.
The other was C.S., who lived in the neighborhood. He was
shot in the temple. He was taken to the hospital, where he
police encountered Mr. Howard, a neighbor of J.C.'s,
sitting in a chair in front of the house. The police spoke
with him briefly before entering the home. After
investigating inside the home, the police came back outside
and spoke with him again. At some point thereafter—the
trial testimony was uncertain as to when—Mr. Howard
was placed under arrest and was charged with the first-degree
murders of J.C. and C.S., as well as with being a felon in
possession of a firearm.
case was tried in December 2017. Although there was no
dispute that Mr. Howard fired the shots that killed J.C. and
C.S., there were no eyewitnesses and thus was no direct
evidence of the events that led to the shooting. The
State's theory was that Mr. Howard had grown increasingly
frustrated because J.C. parked trucks that he used for his
landscaping business near Mr. Howard's house, making
noise and blocking his driveway. In the State's telling,
tensions over the trucks reached a boiling point. Mr. Howard
and J.C. got into a heated confrontation, in which C.S. also
became embroiled. Mr. Howard got a gun from his house and
fatally shot both victims.
Howard's version of events was starkly different. He said
that J.C. brought the gun and instigated the confrontation.
According to Mr. Howard, J.C. was enraged with him because
J.C. was involved in an extramarital affair and believed that
Howard was going to disclose the affair to J.C.'s wife.
During the confrontation, J.C. placed the gun to Mr.
Howard's head. C.S. told J.C. to put the gun away. While
J.C. was distracted, Mr. Howard went for J.C.'s gun. As
the two men struggled, the gun went off, shooting C.S. in the
head. Mr. Howard wrestled the gun away and shot J.C. in
self-defense as J.C. was charging at him.
opening statements, the prosecutor told the jury that when
the police approached Mr. Howard at J.C.'s home and asked
Mr. Howard what had happened, Mr. Howard remained silent. Mr.
Howard objected that the statement was an impermissible
comment on his constitutional right to remain silent. The
prosecutor responded that it was not impermissible because
Mr. Howard, at that time, had been neither arrested nor given
Miranda warnings. The court asked the parties to
present authorities on the issue and told the State not to
address Mr. Howard's prearrest silence until it had
ruled. But the trial court neither received the authorities
it asked for nor ruled on the objection.
State began its case-in-chief, calling as its first witness
one of the responding police officers—who testified
that he arrived at J.C.'s house and saw Mr. Howard seated
on a chair in front of the carport. He stated that Mr. Howard
appeared "very detached and emotionless." At the
time, the officer did not regard Mr. Howard as a suspect; he
was just trying to find out what happened. But Mr. Howard
"only would indicate that he wasn't shot" and
otherwise "refused to answer any questions." The
prosecutor asked whether Mr. Howard told the officer
"that he had been engaged in a struggle for his life and
that he had acted in self-defense," and the officer said
no. After discussing the officer's inspection of
J.C.'s home, the prosecutor asked about the officer's
conversation with Mr. Howard after the officer left the
house. The officer testified that Mr. Howard stated that
"they were going to shoot me too, or they would shoot me
too, something to that effect" but otherwise
"refused" to answer any questions.
police officers, the State then introduced recordings of
calls Mr. Howard made to his girlfriend and brother while in
jail. Mr. Howard did not admit to premeditated murder during
any of these calls, but he did make statements in them that
may fairly be interpreted as showing a consciousness of
guilt. In one call, for example, Mr. Howard told his
girlfriend that the police had accused him of murder and that
he did not know or remember what had happened but that
"nothing called for me to do two murders." He also
complained about the work trucks J.C. parked near his house,
stating "[t]hat shit will make you crazy, whatever kind
of gas coming out, carbon monoxide or whatever and it will
make you violent." In addition, the State introduced a
recording of the police attempting to get a buccal swab from
Mr. Howard pursuant to a warrant. Mr. Howard told the
officers that his lawyer told him not to cooperate with any
request they made, and a physical struggle ensued. During the
struggle, Mr. Howard told the police "I don't know
why y'all goin through dis, I'm already so court with
dat, which y'all got me for. I'm not, I don't
even need a public defender. I'm guilty, so what?"
son testified that he had seen Mr. Howard in possession of
the gun before the shooting. And J.C.'s wife testified
that Mr. Howard shot her husband but was unable to relate
whether she saw the events leading to the shooting and, if
so, what they were, and she was thus unable to tell the jury
anything either way about premeditation or self-defense. The
State also put on forensic ...