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Legal Pleadings:

Initial Brief Final – Murder

STATEMENT OF THE CASE

The Appellant was arrested by Officer P. B. of the Jacksonville’s Sheriff’s Office on July 16, after an interrogation by law enforcement, and charged with Armed Robbery and Felony Murder for the Murder of M. and A. B. on July 14. (R. 1 at 1-4). Three co-defendants, J. G., G. C. and S. B., were additionally charged with varying offenses including the charges that the Appellant was charged (Murder in the First Degree and Armed Robbery) and lesser included offenses (Second Degree Murder). (R. 1 at 18-20; R. 1 at 79-85). Defendant was subsequently indicted by a grand jury for two counts of Murder in the First Degree and Armed Robbery. (R. 1 at 14-17).
On May 14, the State of Florida moved to join the trials of the Appellant and G. C. (R. 1 at 44-45). The Motion for Joinder was granted by the trial court over the objection of Appellant’s counsel on June 18. (R. 1 at 42-43). Counsel for the Appellant subsequently moved to sever the cases of the Appellant and Mr. C. which was denied by the trial court. (R. 1 at 48-52). Subsequently, the Appellant and co-defendant G. C. were tried in a joint trial. However, because the State sought inculpatory statements made by both the Appellant and Mr. C. at trail, the State conceded that separate twelve person juries would be required. (R. 1 at 40). See also Bruton v. United States, 391 U.S. 123 (1968). On February 18, a jury was selected and the case was tried. (R. 1 at 7-9). As a consequence of that trial, Mr. C. was found guilty as charged and subsequently sentenced to life in prison. Case no. 1D15-1428. The jury was unable to reach a verdict in the Appellant’s case. (R. 1 at 9). Trial counsel for the Appellant subsequently withdrew and new counsel was appointed (R. 1 at 9-10, 139-40). On June 15, a new jury was selected and a trial held in full. (R. 1 at 12-13). As a result of that trial, the Appellant was found guilty by the jury, as charged, for all three counts (R. 2 at 220-22). On July 10, the trial court adjudicated the Appellant guilty of all counts and sentenced the Appellant to life sentences on all counts and ordered that the three life sentences run consecutive to one another. (R. 2 at 225-30, 259-60). The Appellant, through counsel, filed a timely notice of appeal on July 17. (R. 2 at 238).

STATEMENT OF FACTS

Pursuant to a stipulated statement of facts presented to the jury in this cause, On July 14, brothers M. and A. B. were shot and subsequently died from their injuries. (R. 3 at 10). The Appellant and three other co-defendants were charged with the murders and armed robberies of M. and A. B. (R. 3 at 10-11).
On July 14, K. L., the head of security at a restaurant in Jacksonville, Florida was alerted to a possible shooting in the parking lot of the business. (R. 4 at 188-91). Mr. L. responded to the parking lot where he came across a pick-up truck, later determined to belong to M. and A. B. (R. 4 at 192-93). Mr. L. approached the vehicle and found a person he later learned was A. B. in the passenger seat of the vehicle. (R. 4 at 192-93). Mr. L. observed A. B. “actively bleeding” and determined that his injuries were too severe to render aid. (R. 4 at 194). Mr. L. walked around the back of the truck in an effort to “clear the area” and discovered the body of M. B. a few feet from the vehicle. (R. 4 at 197-99). Mr. L. further determined that M. B. was also “actively bleeding” and that the injuries to M. B. were too severe to render aid. (R. 4 at 198-99). Mr. L. went back into the restaurant to secure the employees and contact law enforcement. (R. 3 at 199.) After a few moments, Mr. L. exited the restaurant and secured the area until law enforcement was able to arrive. (R. 4 at 199-200).
Law enforcement officers with the Jacksonville Sheriff’s Office arrived to the scene, as well as several rescue personnel. (R. 4-6 passim). Video surveillance from the restaurant was obtained by employees of the restaurant and provided to law enforcement. (R. 4 at 205-07). Video surveillance showed another vehicle near the pick-up truck belonging to A. and M. B., but did not show who was in the vehicle. (R. 5 at 432). In a video-taped statement to law enforcement, the Appellant indicated that J. G., G. C., S. B., and the Appellant were in the vehicle. (R. 5 at 432). However, Det. B. with the Jacksonville Sheriff’s Office testified that the Appellant could not be identified as being either the shooter or one of the individuals who had been in the automobile near the truck belonging to M. and A. B. at the time of the shooting. (R. 6 at 569).
When rescue personnel arrived, they pronounced A. B. dead at the scene. (R. 4 at 222-23). However, M. B. still indicated signs of life and rescue personnel determined that he should be transported to a hospital. (R. 4at 223-25). M. B. subsequently succumbed to his injuries and was pronounced dead later that evening at the hospital. (R. 5 at 393).
Law enforcement initially focused on finding the vehicle that had been on the surveillance tape, which was later determined to belong to the mother of C. P. (R. 5 at 410). The vehicle was discovered abandoned in the roadway in the early morning hours of June 16, two days after the deaths of A. and M. B. (R. 5 at 410-11). The discovery of the vehicle led to the questioning of C. P. by law enforcement. (R. 5 at 410). Ms. P. testified that she had a previous sexual relationship with the Appellant and that she had been at a house party hosted by “the twins” on July 14. (R. 4 at 236-39). Ms. P. indicated that she had been at the party with others, including the Appellant. (R. 4 at 239). Ms. P. indicated that she knew the co-defendants, J. G., G. C. and S. B. as well. (R. 4 at 236-38). Ms. P., the Appellant, J. G., G. C. and S. B. were all at the party hosted by “the twins”, whom Ms. P. did not know. (R. 4 at 240). Ms. P. testified that while at the party, the Appellant asked her for the keys to her mother’s vehicle. (R. 4 at 241-42). The Appellant told Ms. P. that he was going to purchase marijuana with her vehicle, as he did not have a vehicle. (R. 4 at 256). Ms. P. indicated that she saw the Appellant leave, but did not know if J. G., G. C. and S. B. had gone with him. (R. 4 at 242). She indicated that the Appellant returned within forty-five minutes and that J. G., G. C. and S. B. were with him when he returned. (R. 4 at 243). Ms. P. said that she had not seen the Appellant with a firearm at any time that evening, or any other time. (R. 4 at 255). Ms. P. had previously seen J. G. with firearms in his possession. (R. 4 at 255). J. G. was in possession of a black handgun when he returned with the Appellant after borrowing Ms. P.’s vehicle. (R. 4 at 258). Ms. P. observed that the Appellant was visibly upset after returning from borrowing her vehicle. (R. 4 at 256). Ms. P. further indicated that the Appellant, on numerous occasions, had his cell phone with him and frequently used his cell phone. (R. 4 at 254). However, on the night of June 14, she had not seen the Appellant with his cell phone. (R. 4 at 254).
Ms. P. indicated that when the Appellant and J. G., G. C. and S. B. returned that they had a jar containing marijuana with them. (R. 4 at 244). Ms. P. described the marijuana being divided among the individuals at the party and marijuana use by everyone present. (R. 4 at 245-46). Ms. P. identified the marijuana container, which was subsequently recovered by law enforcement. (R. 4 at 245).
Ms. P. denied seeing J. G., G. C. and S. B. subsequent to that evening. (R. 4 at 247). Ms. P. met up with the Appellant on June 15 at a home outside of Jacksonville. (R. 4 at 248). Ms. P. stated that the Appellant approached her about the vehicle and asked her to lie about when he borrowed the vehicle from her, which she refused to do. (R. 4 at 248). Ms. P. agreed to remove several stickers off of the back of the vehicle at the behest of the Appellant. (R. 4 at 249). Ms. P. left the home of her friend after her conversation with the Appellant. (R. 4 at 249). At some point in her travel, Ms. P. ran out of gasoline and abandoned the vehicle on the side of the roadway. (R. 4 at 249). The vehicle was subsequently discovered by law enforcement and Ms. P. agreed to speak with them. (R. 4 at 250).
Subsequent to the discovery of Ms. P.’s vehicle by law enforcement, on June 16, law enforcement was contacted by C. M. (R. 5 at 415-16). Mr. M. is an acquaintance of the Appellant, as well as all three of the co-defendants. (R. 4 at 264-65). Mr. M. contacted law enforcement with regards to private messages that he had received on the social networking website, Facebook. (R. 4 at 267). The messages were purportedly between Mr. M. and the Appellant. (R. 4 at 268). Mr. Martin testified that he provided law enforcement access to his Facebook account on June 16, and that law enforcement screen captured a conversation that took place between his Facebook account and the Facebook account of the Appellant. (R. 4 at 268). The Facebook messages stated the following:
C. M.: were you at

A. W.: A’s why wats good

C. M.: wat yall doin

A. W.: shii jus cooling fam wassup witcha

I got a nigga who we can lick on for an ounce of loud

M. B.

Just put the fye to his face or pistol whip his ass

C. M.: shit raining were he at

A. W.: Idk you want me to set it up for ya? Just toss me a quarter out the onion nigga

C. M.: I got to get my niggas fire ill let u knw when I get it

A. W.: Bet if not I got one from smoke

C. M.: ok well day will work to

C. M.: were bro goin to be at tonight

Mr. M. indicated that “lick” meant to rob someone. (R. 4 at 269). Mr. M. further provided that “an ounce of loud” is a reference to an ounce of “stronger marijuana”. (R. 4 at 269). Mr. M. testified that “fye” is short for firearm, or a handgun. (R. 4 at 270). Additionally, “got to get my niggas fire” meant that Mr. M. would need to obtain a firearm and that fire is another slang word for firearm. (R. 4 at 271). Mr. M. further explained that “pistol whip his ass” means to hit somebody in the face with a firearm. (R. 4 at 270). Finally, Mr. M. explained that “toss me a quarter out the onion” was a request to split the proceeds of the stolen marijuana. (R. 4 at 271).
Mr. M. indicated that at the conclusion of this conversation that he had no further contact with the Appellant, J. G., G. C. or S. B. (R. 4 at 273). The direct examination of Mr. M. culminated with Mr. M. testifying that he had never had communication with J. G., G. C. or S. B. from another person’s phone number or Facebook account. (R. 4 at 273). The final question was whether “[d]uring that conversation was the – – A. W. was using words that you knew to come from A. W. . . . using the same type of language, sentences he would normally use?” (R. 4 at 273). Mr. M. indicated that the language and sentences were consistent with that of the Appellant. (R. 4 at 274). Mr. M. testified that, based on his experience with Facebook, that an induvial who was using the phone of another individual would be able to access their Facebook account and send messages without requiring the owner of the phone’s password. (R. 4 at 276). Mr. M. further agreed that it was possible that another individual could send messages from the account of someone else. (R. 4 at 276).
After meeting with Ms. P. and Mr. M., Detective P. B. of the Jacksonville Sheriff’s Office, the lead homicide detective assigned to investigate the deaths of M. and A. B., began interviewing the Appellant, J. G., G. C., and S. B. (R. 5 at 417-22). The Appellant was the first of the four co-defendants who was interrogated. (R. 5 at 575). The appellant was taken to the police station and a recorded interview was conducted. (R. 5 at 423-24). The Appellant was provided his Miranda warnings and spoke with law enforcement. (R. 5 at 425-27). Detective B. confronted the Appellant with the Facebook messages between his account and Mr. M. (R. 5 at 429-30). The Appellant denied sending the messages on Facebook to Mr. M. (R. 5 t 431). The Appellant conducted a lengthy interview with Detective B. and other law enforcement witnesses with the Jacksonville Sheriff’s Office and numerous inculpatory and exculpatory statements were made. (R. 5 at passim). The total length of the interview was approximately three hours. (R. 5 at 572-73).
Detective B. testified that, as a result of his investigation, he believed that J. G. fired the shots that killed M. and A. B. (R. 5 at 570). Detective B. testified that his investigation revealed that M. and A. B. previously knew the Appellant, J. G., G. C., and S. B. (R. 5 at 577). Detective B. further testified that he was unable to determine what device had sent the messages to C. M. from the account of the Appellant and that it was possible for another individual to use the Facebook account of another. (R. 5 at 582).
Officer F. of the Jacksonville Sheriff’s Office testified regarding his processing of the crime scene and evidence recovered. (R. 4 at 282). Officer F. was an evidence technician, specifically a major case crime scene detective with regards to the investigation underlying this case. (R. 4 at 285). Trial counsel for Appellant attempted to ask Officer F. about money that was recovered on or near M. and A. B. during the processing of the crime scene. (R. 4 at 305). The State promptly objected and argument was conducted outside the presence of the jury. (R. 4 at 304-10). The State objected on grounds that the question would lead to impermissible character evidence with regard to M. and A. B., as drugs had been found at their residence. (R. 4 at 305). The State further objected on grounds that the testimony sought was irrelevant and unfairly prejudicial. (R. 4 at 305). The State’s theory of the case was that M. and A. B. believed that he was meeting the Appellant “to sell marijuana.” (R. 3 at 173). The State conceded on several occasions, even in jury selection, that “A. and M. B. went to that parking lot (at the restaurant) to sell drugs”. (R. 3 at 60).
The Appellant’s theory of the case is that the Appellant arranged for a purchase of marijuana and that there was no intent to commit a robbery, but rather J. G. decided to kill M. and A. B. of his own volition and that the Appellant was guilty of the lesser included offense of felony murder of the third degree, with the attempted purchase of cannabis as the predicate felony. (R. 6 at 740). In arguing for the admissibility of the evidence, trial counsel for the Appellant replied that leaving large quantities of cash in the pockets of A. B. was inconsistent with a robbery, but consistent with the Appellant’s theory of the case. (R. 4 at 306). Although the evidence was not proffered by O. F., counsel for the State proffered that “there was cash found inside the victim’s pocket.” (R. 4 at 307). The trial court inquired how much “cash”, and counsel for the State provided an amount of $372. (R. 4 at 308). Counsel for Appellant reiterated the probative value, stating that:
The state has already in the opening statement claimed that these are drug dealers. I’m not sure what we’re talking about some inference that’s not allowed and that’s not even my point. My point is obviously that it is a robbery and those items may be taken or should be taken, usually taken and that’s the one I think I should be able to enter to the jury.
(R. 4 at 308-09). The trial court did not allow the evidence, but did allow Officer F. to testify that an “iPod” was recovered from the personal effects of M. B. with the agreement of the State. (R. 4 at 313).
The Appellant testified at the trial. (R. 6 at 627). Prior to his testimony, trial counsel for Appellant indicated to the trial court, outside of the presence of the jury, that during the testimony of Mr. M., the Appellant said that the language in the Facebook messages presented to the jury was inconsistent with the language frequently used by the Appellant and that prior messages indicated that there had been a “falling out” between the Appellant and Mr. M. and that prior messages would corroborate the rift between the two. (R. 6 at 598-99). Trial counsel for Appellant indicated that it was already late in the afternoon and suggested that the testimony of Appellant be taken the following morning so that trial counsel for Appellant could properly disclose the messages and allow the State and opportunity to prepare. (R. 6 at 599-600). The matter was discussed in great detail between the trial court and counsel for both parties. (R. 6 at 598-626). The Facebook messages are provided as a court exhibit in the record. (R. 1 at 178-86).
The State responded that the name on the Facebook account purporting to be Mr. M.’s had the name “B. M.” as opposed to “C. M.”. (R. 6 at 601). The State further indicated that the State could not authenticate the messages at that time. (R. 6 at 601). At that time, the State did not move to exclude the evidence or seek any other remedy, but inquired why counsel for the State was “finding out about this in the middle of the trial?” (R. 6 at 601). Trial counsel for Appellant indicated that the information was both relevant and necessary and that trial counsel had just been made aware of it. (R. 6 at 602-03). Trial counsel for Appellant stated that he needed more time to provide the messages in discovery. (R. 6 at 603). The trial court, sua sponte, indicated that the State was “not asking for more time. He’s asking me to keep it out.” (R. 6 at 603). At that time, the State had not made such a request.
The trial court and trial counsel for Appellant continued in dialog regarding the relevance of the Facebook messages. (R. 6 at 609). At this point, the State had yet to object on relevance grounds. Trial counsel for Appellant pointed out that the language and jargon of the previous Facebook messages was inconsistent with the language and jargon of the Facebook messages about a potential robbery of M. B. purportedly made by the Appellant. (R. 6 at 609). The trial court indicated that it did not necessarily agree that the messages were indicative of a “falling out”, but that it did not find the messages particularly relevant. (R. 6 at 610).
The State concurred with the trial court that the messages were not “particularly prejudicial” but argued that counsel for the State was unsure if the messages could have been altered, modified, or if portions could be deleted. (R. 6 at 610). The trial court asked if counsel for the State was requesting time to review the material. (R. 6 at 611). Counsel for the State indicated that he would not be prepared for the evidence overnight. (R. 6 at 611). The trial court asked counsel for the State what the prejudice would be in admitting the Facebook messages. (R. 6 at 612). Counsel for the State replied “I don’t know what I don’t know, so without an opportunity to don’t know if it’s original, if it’s been changed.” (R. 6 at 612). The trial court indicated that Mr. M. could authenticate the Facebook messages and that he was currently in the custody of the local sheriff on an unrelated case. (R. 6 at 612). Counsel for the State agreed that Mr. M. could authenticate the Facebook messages, but complained again that he did not have adequate time to respond. (R. 6 at 612).
After further conversation, the messages were printed and copies were provided to counsel for the State. (R. 6 at 616). The trial court requested that counsel for the State to review the Facebook messages and declare, “what, if anything, you specifically object to on the grounds that the prejudicial impact outweighs any probative value.” (R. 6 at 617). Counsel for the State indicated that the messages provided were “a snapshot. If I had been provided with this earlier I could have subpoenaed all of his records to anybody.” (R. 6 at 617). Counsel for the State further elaborated, stating, “I’m not quite sure of the relevancy. It makes C. M. out to be a drug user as well as the defendant, of course. Makes him out to be a drug seller. It is hearsay. There’s — I mean A. W. uses the word nigga in here. He uses the word fuck in here.” (R. 6 at 617-18).
In response, the trial court indicated that it was concerned with “the discovery aspect of it”. (R. 6 at 619). Counsel for the State indicated again that it was hearsay and that he was not able to determine if the messages had been altered.” (R. 6 at 619). The trial court gave both parties an opportunity to address the relevancy and subsequently ruled:
I’m not going to allow this evidence in. I do think that — number one, I do find that it is a discovery violation. I don’t think it’s trivial. I think it’s substantial. It’s — it’s not inadvertent. It’s not willful in the sense that clearly, Mr. H. (trial counsel for the Appellant), I know that — I believe this has been — this came to you at the last minute so clearly this is not something that you intended to have happen, so I don’t – I don’t want to make it sound like I’m saying that.
However, in that sense it is a willful violation, and again as I indicated it’s a substantial one. I think there is prejudicial impact, not so much in terms of the evidence itself but in what it prohibits state from being able to elicit in terms of either cross examining the defendant on it or eliciting rebuttal evidence. I think they would be prohibited from being able to do that because of the fact that we’re in the middle of a trial here and that evidence would clearly if it exists and if they could get at it and it probably does exist, there’s certainly a likelihood that it exists, would take them weeks to get.
I also am finding that — I have indicated that I don’t think that it’s particularly probative. I think Mr. W. can — as I expected that he will certainly — and given the indication that he will testify say that he did not have this conversation with Mr. M. and then it is for the jury as it properly should be for them to decide whether or not they believe the evidence presented by the state or the evidence presented by the defense in this regard.
(R. 6 at 624-25).
Subsequently the Appellant testified. (R. 6 at 627). The Appellant testified that he had arranged a meeting between J. G. and the B. brothers to arrange the purchase of marijuana. (R. 6 at 630). The Appellant testified that he did not send the purported messages to C. M. and that the language used was inconsistent with how he would approach someone on Facebook. (R. 6 at 631). The Appellant further testified that he had previously messaged C. M. and that the language of those Facebook messages was not consistent with the language of the Facebook messages regarding a potential robbery. (R. 6 at 632).
The Appellant testified that he had driven to meet M. and A. B. at the restaurant, but that he had not seen any firearms prior to arriving at the restaurant. (R. 6 at 635). The Appellant further stated that there had been no plans, intentions, or communication about committing a robbery with any of the co-defendants. (R. 6 at 635). The Appellant indicated that the reason other individuals would have had access to his Facebook account was because he borrowed several individuals telephones and i-Pads to Facebook message, as his phone had been broken. (R. 6 at 640-41). The Appellant testified that when he admitted to detectives that he had “set things up”, he was referring to a drug transaction, and not a robbery. (R. 6 at 645-46).
In closing argument, the State argued that the Appellant uses language similar to the Facebook messages between his Facebook account and C. M. regarding a potential robbery. (R. 6 at 717-18). Counsel for the State further argued that C. M. had “Facebooked” the Appellant before, that it was not their first time, that the message was not out of character, and there was “not an inkling that someone else was sending that message.” (R. 6 at 718).

SUMMARY OF THE ARGUMENT

1. The trial court erred in not permitting evidence that A. B. possessed a large quantity of United States currency at the time J. G. shot and killed him. The State’s argument that such evidence was unduly prejudicial is without merit. The State in jury selection, opening statement, through the testimony of witnesses, and in closing argument conceded that M. and A. B. intended to participate in a drug transaction. As such, no prejudice existed. A large quantity of money being left behind is inconsistent with the State’s theory of the case and consistent with the Appellant’s theory of the case. The exclusion of such evidence was highly prejudicial and precluded the Appellant from presenting an effective defense.
2. The trial court erred in not permitting evidence of prior Facebook messages between C. M. and the Appellant. The trial court did not properly conduct a hearing consistent with the dictates of Richardson v. State, 246 So. 2d 771 (Fla. 1971). The trial court applied the incorrect law in not permitting the evidence of prior Facebook messages by reliance on the fact that the Appellant would be able to testify as to what was in the messages without their admission. This error was further compounded by the failure to admit the evidence discussed in Argument I and the argument of counsel for the State in closing argument.

ARGUMENT I

THE TRIAL COURT ERRED IN EXCLUDING EVIDENCE THAT LARGE QUANTITIES OF MONEY WERE CONTAINED IN THE POCKET OF THE ALLEGED VICTIM. EXCLUSION OF SUCH EVIDENCE UNDERMINED THE APPELLANT’S ABILITY TO PRESENT A DEFENSE AND IS VIOLATIVE OF THE RULES OF EVIDENCE.

I. Introduction

The trial court erred in not allowing evidence that A. B. possessed a large amount of money at the time he was killed by J. G. The State’s theory of the case is that the Appellant arranged for the robbery of M. and A. B., while the Appellant contends that there was an intention to arrange a sale of marijuana and J. G. committed murder independent of the actions of the Appellant. Excluding tangible evidence of the Appellant’s theory of the case cannot be said to be harmless.
II. Standard of Review

“As a general rule, a trial court’s ruling on the admissibility of evidence will not be reversed, absent an abuse of discretion.” McCray v. State, 919 So. 2d 647, 649 (Fla. 1st DCA 2006) citing Globe v. State, 877 So. 2d 663, 673 (Fla. 2004); Russ v. State, 832 So. 2d 901, 910 (Fla. 1st DCA 2002). “However, a court’s discretion is limited by the evidence code and applicable case law. A court’s erroneous interpretation of these authorities is subject to de novo review.” Id. citing Gilliam v. Smart, 809 So. 2d 905 (Fla. 1st DCA 2002).
III. Preservation

Trial counsel attempted to solicit testimony from Officer F. of the large quantity of United States currency found on the person of A. B. (R. 4 at 304). Trial counsel for the Appellant attempted to ask “And how about money? Do you recall – -” (R. 4 at 304). Although the evidence was not proffered by Officer F., counsel for the State proffered that “there was cash found inside the victim’s pocket.” (R. 4 at 307). The trial court inquired how much “cash”, and counsel for the State provided an amount of $372. (R. 4 at 308). After the trial court indicated that it would not admit the evidence, trial counsel for the Appellant renewed his request to have the evidence admitted. (R. 4 at 310).

IV. Application of the Facts to the Law

As a preliminary matter, the proponent of any evidence bears an initial burden of demonstrating relevancy. Evidence that tends to prove or disprove a material fact is relevant and admissible. Johnson v. State, 40 So. 3d 883, 886 (Fla. 4th DCA 2010). It is clear that money and items of value left behind by a purported robber are relevant. Trial counsel clearly proffered the relevancy of such evidence prior to the trial court ruling, stating:
Ultimately the state is trying to prove this was a robbery and in terms of it being a robbery or the situation being a robbery property of value, drugs, guns, the money are things that would be stolen typically in a robbery, at least we can argue that, okay? So, Your Honor, in terms of arguing against this being a robbery or intended robbery then we believe it is relevant.

(R. 4 at 306). “The right of a criminal defendant to cross-examine adverse witnesses is derived from the Sixth Amendment and due process right to confront one’s accusers. One accused of crime therefore has an absolute right to full and fair cross-examination.” Steinhorst v. State, 412 So.2d 332, 337 (Fla.1982). Cross-examination includes the ability of defense counsel to elicit evidence that is consistent with a defendant’s theory of the case, particularly when such evidence is inconsistent with the State’s theory of the case.
Although trial courts have wide latitude in determining in determining what is relevant, “exclusion of exculpatory evidence implicates the defendant’s constitutional right to defend himself.” McDuffie v. State, 970 So.2d 312, 322 (Fla.2007). In this case, exclusion of that evidence speaks directly to the defense raised in the trial.
Additionally, the argument by the State at trial that the evidence that was attempted to be elicited is wholly without merit. The State discussed in its opening statement that M. and A. B. believed that they were meeting the Appellant “to sell marijuana.” (R. 3 at 173). The State said in jury selection that “A. and M. B. went to that parking lot (at the restaurant) to sell drugs”. (R. 3 at 60). The prejudiced complained of was that by possessing money in the amount of $371, that M. and A. B. are drug dealers or some inference along those lines, impermissible character evidence. (R. 4 at 305). However, trial counsel for the Appellant never made or insinuated any argument of the sort. The trial court erred in not allowing testimony of significant quantities of cash that were left behind as a result of a purported robbery. As the Appellant never made any inappropriate argument and there was no prejudice in admitting the statement, the trial court abused its discretion in failing to admit the evidence. It has been held that “the discretionary power that is exercised by a trial judge is not, however, without limitation…. The trial court’s discretionary power is subject only to the test of reasonableness, but that test requires a determination of whether there is logic and justification for the result. The trial courts’ discretionary power was never intended to be exercised in accordance with whim or caprice of the judge nor in an inconsistent manner.” Huff v. State, 569 So. 2d 1247, 1249 (Fla. 1990) citing Canakaris v. Canakaris, 382 So.2d 1197 (Fla. 1980). “Relevant evidence should not be excluded from the jury unless no other remedy suffices.” Cooper v. State, 336 So.2d 1133, 1136 (Fla. 1976). Given the fact that there was no valid basis to object, the trial court abused its discretion.
Given how essential extrinsic evidence that there was no intention to commit a robbery was in this case, the State is unable to meet its burden “to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction.” State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla.1986). Therefore, Appellant is entitled to a new trial.

ARGUMENT TWO

THE TRIAL COURT ERRED IN EXCLUDING THE FACEBOOK MESSAGES BETWEEN THE APPELLANT AND COREY MARTIN ON THE BASIS OF A DISCOVERY VIOLATION. THE TRIAL COURT APPLIED THE INCORRECT LAW AND FAILED TO EXPLORE SANCTIONS SHORT OF EXCLUSION OF THE EVIDENCE FOR A DISCOVERY VIOLATION. THE ERROR IN EXCLUDING THIS EVIDENCE, AS WELL AS THE EVIDENCE EXCLUDED IN ARGUMENT ONE UNDERMINED THE APPELLANT’S RIGHT TO A FAIR TRIAL AND REVERSAL IS REQUIRED.

I. Introduction

Outside of statements by the Appellant during a long police interrogation, the principal evidence that the Appellant planned a robbery prior to meeting with M. and A. B. is that the Appellant purportedly discussed a plan to rob M. B. with C. M. The Appellant contended throughout his interrogation by law enforcement and throughout the trial that he never sent the alleged Facebook messages planning a robbery to C. M. By excluding extrinsic evidence C. M. and the Appellant were not getting along, as well as evidence that the language used in the Facebook message soliciting C. M. to commit a robbery is inconsistent with prior Facebook messages, the trial court erred and the Appellant is entitled to a new trial.
II. Standard of Review

The “erroneous exclusion of exculpatory defense evidence following a Richardson hearing is subject to harmless error analysis.” Sanchez-Andujar v. State, 60 So. 3d 480, 486 (Fla. 1st DCA 2011) (quoting Dawson v. State, 20 So.3d 1016, 1021 (Fla. 4th DCA 2009)); see also C.D.B. v. State, 662 So.2d 738, 741 (Fla. 1st DCA 1995). “The proper test is whether there is a reasonable possibility that the lack of the evidence complained of might have contributed to the conviction or, in other words, was the error harmless beyond a reasonable doubt.”); Chambers v. State, 708 So.2d 664, 666 n. 4 (Fla. 4th DCA 1998). “Error is harmless only where it can be said, beyond a reasonable doubt, that the error could not have affected the verdict.” Comer v. State, 730 So. 2d 769, 775 (Fla. 1st DCA 1999) (citing Czubak v. State, 570 So.2d 925, 928 (Fla. 1990)).
III. Preservation

Trial counsel for Appellant attempted to submit the excluded evidence during the trial. Further, the evidence was proffered, in consultation with the State. (R. 6 at 625). The proffered evidence is a part of the record on appeal. (R. 1 at 178-86). Finally, the Appellant raised the exclusion of the evidence in his timely filed Motion for New Trial. (R. 2 at 236-37).
IV. Application of the Facts to the Law

With regard to the statements, the trial court engaged in a significant hearing and the evidence was made a part of the record on appeal. The primary objection from the State as to the evidence was that it did not have adequate time to investigate further, although other objections were discussed. (R. 5 at 621).
The Florida Supreme Court has routinely held that:
Where exclusion of evidence or other sanction is sought because of a discovery violation, Richardson holds that the trial court’s discretion can be properly exercised only after an adequate inquiry is made into three areas: (1) whether the discovery violation was willful or inadvertent; (2) whether it was trivial or substantial; and (3) whether it had a prejudicial effect on the opposing party’s trial preparation.

McDuffie v. State, 970 So. 2d 312, 321 (Fla. 2007) (citing Richardson v. State, 246 So. 2d 771, 774 (Fla. 1971). While it is true that the same process must be held regardless of whether the State or defense commits the violation, “additional constitutional considerations are involved when a defense witness is excluded.”
McDuffie v. State, 970 So. 2d 312, 321 (Fla. 2007). As in McDuffie, the principal complaint of the State was unfair surprise and that they would need time to fully investigate the information. The State was additionally concerned about fabrication.
However, in this case, the State could have easily consulted with its witness, Mr. M., who could authenticate the Facebook messages. The trial court explicitly stated that Mr. M. was currently in the custody of the local jail and could review the messages in short order to determine their authenticity. (R. 6 at 612). This fact was acknowledged by counsel for the State, who agreed that Mr. M. could authenticate the Facebook messages. (R. 6 at 612).
In this case, as in McDuffie, the trial court determined that the failure to disclose was not willful or motivated by a desire to obtain a tactical advantage. Id. (R. 5 at 624). The court determined that the State was precluded from fully investigating other related evidence. (R. 5 at 624). “Richardson mandates that once a discovery violation is revealed, the trial court must conduct an inquiry to determine the sanctions that should be imposed on the violating party.” Snelgrove v. State, 921 So.2d 560, 567 (Fla.2005).
Where the trial court erred was in failing to explore alternatives to excluding the evidence. “Where the issue involves possible exclusion of defense evidence, the ‘extreme sanction of excluding [defense] evidence … should be used only as a last resort’ and ‘it is incumbent upon the trial court … to determine whether any other reasonable alternatives can be employed to overcome … possible prejudice,’ including declaration of a mistrial.” McDuffie at 322. The failure of the trial court to consider less extreme alternatives warrants reversal and entitles the Appellant to a new trial.
“In a criminal case, the exclusion of a defense witness for a discovery violation implicates a defendant’s sixth amendment right to present witnesses as well as the fundamental right to due process.” Comer v. State, 730 So. 2d 769, 775 (Fla. 1st DCA 1999). Although subject to harmless error analysis, this Honorable Court should “analyze this error cumulatively with the other errors that we conclude also occurred.” McDuffie at 322. The Florida Supreme Court has
Held:
Where multiple errors are discovered in the jury trial, a review of the cumulative effect of those errors is appropriate because ‘even though there was competent
substantial evidence to support a verdict … and even though each of the alleged errors, standing alone, could be considered harmless, the cumulative effect of
such errors [may be] such as to deny to defendant the fair and impartial trial that is the inalienable right of all litigants in this state and this nation.’

McDuffie at 328 (citing Brooks v. State, 918 So.2d 181, 202 (Fla.2005) (quoting
Jackson v. State, 575 So.2d 181, 189 (Fla.1991)). In this case, the alleged prejudice to the State could have been cured with either a brief continuance or a mistrial.
This Court has previously held that “[i]n a system in which the search for truth is the principal goal, the severe sanction of witness exclusion for failure to timely comply with the rules of procedure should be a last resort and reserved for extreme or aggravated circumstances, particularly when the excluded testimony relates to critical issues or facts and the testimony is not cumulative.” Austin v. State, 461 So. 2d 1380, 1381 (Fla. 1st DCA 1984). Because the exclusion of the evidence was not harmless error, cumulative with the error with not admitting the evidence of money possessed by A. B., the Appellant was deprived of the use of critical exculpatory evidence and is entitled to a new trial.

CONCLUSION

The failure of the trial court to admit evidence of money possessed by Andrew Bohannon undermined the ability of the Appellant to effectively argue that there was no pre-conceived plan to commit a robbery and that J. G. acted on his own accord. There was no lawful basis to exclude such evidence and it prevented the Appellant from being able to present his defense. Furthermore, the trial court’s error in failing to admit the messages between C. M. and the Appellant and failing to consider less severe remedies than exclusion for the purported Richardson violation was error. Given the significance of the evidentiary value of the messages submitted in evidence by the State, the inability of the Appellant to use extrinsic evidence to call them into doubt is error that cannot be determined not have affected the outcome beyond a reasonable doubt. Finally, it cannot be argued that the errors were harmless, taken individually, but particularly when examined as a whole. As such, the Appellant is entitled to a new trial.