Initial Brief – Violation of Injunction for Protection against Domestic Violence

STATEMENT OF THE CASE

The Appellant was arrested by Officer J. L. N. of the Jacksonville’s Sheriff’s Office on November 1, after an investigation and interrogation by law enforcement, and charged with Violation of Injunction for Protection against Domestic Violence, in violation of Florida Statute 741.31(4)(A) and Domestic Battery, in violation of Florida Statute 784.03(1)(A)(1). (R. 1 at 1-4). Defendant was subsequently formally charged by information for the two aforementioned charges, as well as a third count for Violation of Injunction for Protection against Domestic Violence, in violation of Florida Statute 741.31(4)(A), which alleged an additional violation of the same Injunction for Protection against Domestic Violence in another case. (R. 1 at 17-22). Defendant was adjudged to be indigent and assigned representation by the Office of the Public Defender for the Fourth Judicial Circuit. (R. 1 at 12).
On February 1, a jury was selected and the case was tried in full. Prior to the trial, the Appellant discharged his court appointed counsel and proceeded pro-se with the assistance of stand-by counsel. (R. 3 at 4-5). The trial court made none of the necessary findings as required by Faretta, but did ask the Appellant what was the highest level of education that he had obtained. (R. 3 at 3-4). The Appellant, prior to jury selection, moved to dismiss the case on speedy trial grounds. (R. 3 at 6-8). The Appellant was not offered counsel for his motion to dismiss, reoffered counsel subsequently to the motion to dismiss, and no Faretta inquiry was conducted before, during, or after the hearing on the Appellant’s motion to dismiss. Passim. The trial court heard the Appellant’s motion to dismiss, denied the motion to dismiss, and proceeded to trial. (R. 3 at 6-8). The Appellant re-raised the issue after the jury was selected, but before opening statements. (R. 3 at 131-33). The trial court again heard and denied the motion to dismiss, but no further Faretta inquiry was made. (R. 3 at 132). No subsequent Faretta hearing was conducted, no inquiry was made of Appellant, and no offer of counsel was made.
As a result of that trial, the Appellant was found guilty by the jury, as charged, for all three counts (R. 1 at 49-51). On February 19, the trial court held a sentencing hearing. (R. 1 at 71). The parties agreed that the Appellant could not be adjudicated on both counts one and three, as the charges were multiplicative. (R. 1 at 117-19). The trial court adjudicated the Appellant guilty of counts one and two and sentenced the Appellant to one year in the county jail as to counts one and two, such sentences to run consecutively to one another, with credit for 109 days in the county jail. (R. 1 at 122). The Appellant, through counsel, filed a timely notice of appeal. (R. 1 at 61).

STATEMENT OF FACTS

The Appellant stipulated during trial that a Final Injunction for Protection against Domestic Violence was entered against Appellant and was subsequently admitted into evidence. (R. 3 at 159-60). The Final Injunction prohibited violence, contact, or coming to the residence of the Petitioner. (R. 3 at 161-62). The injunction indicated that both the Petitioner and the Respondent (Appellant) were present and signed for the injunction as a result of the final hearing. (R. 3 at 162). A. S., a clerk of the Circuit Court, testified that the injunction was valid on November 1. (R. 3 at 165). The Petitioner was the Appellants former wife. (R. 3 at 172-73).
The Appellant’s former wife testified that she had been previously married to the Appellant and that she obtained an Injunction for Protection against Domestic Violence against the Appellant a few years prior. (R. 3 at 172-74). She testified that she had subsequently spoken to the Appellant about having the injunction removed or modified, but that she had never taken steps to do so. (R. 3 at 176). She testified that the Appellant came to her residence on November 1 in the evening hours. (R. 3 at 176-77). She was accompanied by her two minor children and her boyfriend. (R. 3 at 177). She indicated that she tried to shut the garage of her home and subsequently the door of her home, but was prevented from doing so by the Appellant. (R. 3 at 178-79). She testified that she asked the Appellant to leave the home. (R. 3 at 180). Appellant sat on the sofa of his ex-wife’s home and after being informed that the police were on the way to the home, left the home through a back entrance. (R. 3 at 180-81). She admitted that she had spoken to the Appellant numerous times about lifting the injunction and allowed her son to accompany the Appellant out of state on several occasions. (R. 3 at 196-97).
The Appellant’s ex-wife’s boyfriend, M. M., testified that he called 911 when the Appellant came to the home of his ex-wife. (R. 3 at 210-13). Mr. M. reported to 911 that the Appellant had come to the home, but that he could not see what was going on inside the house. (R. 3 at 210-13). The 911 operator told Mr. M. to stay out of the home and Mr. M. stayed outside and waited for law enforcement to arrive. (R. 3 at 212-14).
The State called the Appellant’s ex-wife’s juvenile son, T. H., who testified that he had previously lived with Appellant as a step-father. (R. 3 at 231-33). T.H. testified that the Appellant came into the home and shoved his ex-wife at one point. (R. 3 at 235). T. H. further testified that his mother told the Appellant to leave the home. (R. 3 at 236). T. H. indicated that the Appellant threw her phone, cracking the screen. (R. 3 at 236-37). T. H. said that after she said that the police had been called, that the Appellant exited out the back door of the home. (R. 3 at 238-39). T. H. admitted on cross-examination that the Appellant at no point hurt anyone prior to, or on the evening of November 1. (R. 3 at 247).
Officer N. C. T. testified that he was dispatched to a call and arrived at the home of the Appellant’s ex-wife. (R. 3 at 251-53). Officer T. said that when he arrived, the Appellant was not in the home, but he had been made aware that the Appellant had gone out the back door. (R. 3 at 252). Officer T. went outside of the home and began to look around the back of the home for the Appellant. (R. 3 at 252-53). Officer T. observed the Appellant hiding outside of the home and along with another officer, Officer N., detained the Appellant. (R. 3 at 253-54).
Officer N. testified that after the Appellant was pointed out by Officer T., that he ordered the Appellant to come out, where he peacefully surrendered himself. (R. 3 at 268). Officer N. subsequently provided the Appellant warnings pursuant to Miranda and the Appellant answered the officer’s questions. (R. 3 at 269). The Appellant admitted to Officer N. that he had been at his ex-wife’s home, and that his vehicle was in the driveway of the residence. (R. 3 at 269-70). Officer N. was then permitted to testify as to how injunctions worked, why he arrested the Appellant, and was permitted to summarize the evidence and statements of other witnesses, as well as provide his opinion as to the consistency of the statements of the witnesses. (R. 3 at 270-74). On re-direct examination, Officer N. was again asked to give his opinion regarding the validity of the charges and the definitions of the offenses, culminating with the officer giving an incorrect statement of the law. (R. 3 at 277-79).
Over the objection of the Appellant, the State, while questioning Officer Wilder of the Jacksonville Sheriff’s Office introduced recorded jail calls of the Appellant and an unknown individual. (R. 3 at 283-86). Officer W. is the custodian of the jail recordings. (R. 3 at 281). During the jail call played to the jury, the State allowed to be played sections that discuss the specific sentence the Appellant was facing, the fact that he was intending to fire his Public Defender, as well as a quote from the other individual on the phone, who stated “you know what they say, the man who defends himself has a fool for a lawyer.” (R. 3 at 285-86). The Appellant objected to the introduction of the call, as well as to the relevance of the call. (R. 3 at 281-87).
The Appellant chose to become a witness in his case after the State rested. The Appellant testified that he was told that his ex-wife, the Petitioner in the underlying injunction, had successfully removed the injunction. (R. 3 at 313-14). The Appellant testified, that on numerous occasions, that he had taken steps to verify that the Final Injunction had indeed been removed. (R. 3 at 313-18). The Appellant said that he had been given several assurances by his ex-wife that the Final Injunction was no longer in place and that he had been allowed to visit with her and her minor children on several occasions. (R. 3 at 316-19). The Appellant admitted to entering the home of his ex-wife, but denied knowledge of the existence of a Final Injunction. (R. 3 at 323-24). Additionally, the Appellant said that he contacted his ex-wife, but that the contact was unintentional, characterizing it by saying that the Appellant and his ex-wife “bumped each other on the way to the door”. (R. 3 at 324-25). The Appellant further averred the contact was neither harmful nor intentional. (R. 3 at 325). After argument by the Appellant and counsel for the State, addressed in more detail below, the case was given to the jury to deliberate. The jury returned a verdict of guilty to all three counts. (R. 3 at 396-97). The Appellant subsequently moved to discharge court appointed counsel on another case after the verdict of the jury. (R. 3 at 398-99). The trial court discharged court appointed counsel again with no Faretta inquiry. (R. 3 at 398-400).

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 (of a 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). “R. 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 A. B. 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.