2D09-1325 / Bearden v. State

SUPREME COURT CASES

Laws-info.com » Cases » Florida » Second District Court of Appeal » 2011 » 2D09-1325 / Bearden v. State

State: Florida

Court: Florida Southern District Court

Docket No: 2D09-1325

Case Date: 04/13/2011

Plaintiff: 2D09-1325 / Bearden

Defendant: State

Preview:NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
JOSEPH ELI BEARDEN,                                                                          )
)
Appellant,                                                                                   )
)
v.                                                                                           )   Case No. 2D09-1325
)
STATE OF FLORIDA,                                                                            )
)
Appellee.                                                                                    )
)
Opinion filed April 13, 2011.
Appeal from the Circuit Court for Polk
County; J. Michael Hunter, Judge.
Terry P. Roberts of Law Office of Terry P.
Roberts, Tallahassee, for Appellant.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Susan D. Dunlevy,
Assistant Attorney General, Tampa, for
Appellee.
WALLACE, Judge.
Joseph Eli Bearden challenges his judgment and life sentence for second-
degree murder.   On appeal, Bearden makes two closely related arguments.   First, he
argues that the trial court erred in refusing to allow a witness to testify that she heard

Ray Allen Brown admit to committing the offense for which Bearden was convicted.
Second, Bearden contends that the trial court erred in prohibiting him from questioning
Ray Allen concerning Ray Allen's purported declarations against penal interest.1   We
find no error and affirm Bearden's judgment and sentence.   We write to explain our
reasoning.
I.   THE FACTS
The murder victim was a young man named Ryan Skipper.   On March 14,
2007, his body was found on the side of Morgan Road in the Wahneta area—he had
been stabbed to death.   The evidence at trial reflected that on March 13, 2007, Skipper
left home in his car after taking a telephone call at 11:10 p.m.   Shortly thereafter, he
encountered Bearden, who was walking on the side of the road.   Skipper picked up
Bearden and drove a few blocks to J.T. Brown's home.   While Skipper waited outside,
Bearden went inside and unsuccessfully attempted to trade a used laptop computer for
drugs.   Present in the residence were J.T. Brown, Ray Allen Brown (J.T.'s son), John
Kirchoff (who was temporarily living there), and William Brown (J.T.'s nephew).   All four
of these men were methamphetamine users.
The events that followed Skipper and Bearden's arrival at the Brown
residence led to Skipper's murder.   And there was no question that William Brown
wielded the knife used to kill Skipper.2   But, as discussed below, Bearden's conviction
1Bearden also makes two claims of ineffective assistance of trial counsel.
We decline to consider these claims on direct appeal.   Our affirmance is without
prejudice to Bearden's right to file a timely postconviction motion raising these claims.
See Johnson v. State, 942 So. 2d 415, 416 (Fla. 2d DCA 2006).
2William Brown was tried and convicted of the first-degree murder of
Skipper.   His appeal is currently pending in this court under case number 2D10-74.
- 2 -

hinged on whether the jury accepted his version of the events as reflected in his pretrial
statement3 or the version testified to by J.T., Ray Allen, and Kirchoff at trial.   Bearden's
version implicated William and Ray Allen in the murder; J.T., Ray Allen, and Kirchoff's
version implicated William and Bearden.
J.T., Ray Allen, and Kirchoff testified that after Bearden and Skipper
arrived, the generator providing electrical power to the residence began to falter
because it was low on fuel.   They asked Skipper to drive to a nearby gas station to buy
gas for the generator.   According to them, Skipper was accompanied on this trip by
William, Ray Allen, and Kirchoff.   Skipper and the three men returned from the gas
station without incident.   Thereafter, William, Bearden, and Skipper left in Skipper's car
while Ray Allen remained at home for the rest of the night and went to sleep.
This testimony conflicted with Bearden's pretrial statement that the trip to
the gas station was a ruse to permit the Browns to rob Skipper.   Bearden also claimed
that only William and Ray Allen went with Skipper to buy gas and that they returned
alone in Skipper's car.   When they returned, the men and the car were covered in blood.
Although Bearden acknowledged that he knew of the Browns' plan to rob Skipper, he
claimed to have no idea that they would kill him.   He admitted that he and William
cleaned the car and unsuccessfully attempted to sell it or trade it for drugs.   But he
denied assisting in Skipper's murder or being present when Skipper was killed.
Thus the critical issue of fact at Bearden's trial was whether Skipper was
stabbed on the trip to get gas, as Bearden claimed, or when Skipper drove away from
3Bearden did not testify in his own defense.   But a few days after Skipper's
murder, Bearden voluntarily gave detectives a taped statement.   The State played this
statement for the jury at Bearden's trial.
- 3 -

the Browns' residence after returning safely from that trip, as the State's witnesses
suggested.   William—the person who actually stabbed Skipper—was in the car on both
trips.   If the killing occurred during the trip to the gas station, Ray Allen was directly
implicated in the killing because he went along on that trip, but Bearden did not.   If the
killing occurred after Skipper left the Brown residence the second time with William and
Bearden, then Bearden was implicated and Ray Allen—who remained at the Brown
residence and went to sleep—could not have had any direct involvement in the killing.
Skipper's partially burned car was discovered near a boat ramp at a lake
in the area.   Law enforcement officers recovered several sets of fingerprints from the
vehicle, including Bearden's and William's fingerprints.   After law enforcement officers
arrested Bearden, a grand jury indicted him for first-degree murder and robbery with a
deadly weapon.   The State sought the death penalty, but the jury's verdict of second-
degree murder eliminated the death penalty as a sentencing option.4   On the count
charging Bearden with robbery with a deadly weapon, the jury found him guilty of the
lesser-included offense of grand theft of a motor vehicle.   The trial court sentenced
Bearden to five years in prison on the grand theft of a motor vehicle conviction, to run
concurrently with his life sentence.   Bearden does not challenge his conviction and
sentence for grand theft of a motor vehicle.
4In a separate information, the State charged Bearden with accessory
after the fact to first-degree murder, tampering with physical evidence, and dealing in
stolen property.   Bearden moved to consolidate the two cases, and the trial court
granted his motion.   Bearden has not appealed the disposition of the charges filed in the
separate information, and we do not address those matters further.
- 4 -

II.   THE PERTINENT EVENTS AT TRIAL
At issue in this appeal is the trial court's exclusion of testimony that would
have supported Bearden's version of the events that led to Skipper's death.   Bearden's
case went to trial in February 2009, almost two years after the murder.   On the second
day of trial, the prosecutor's office received a telephone call from a previously unknown
witness, Angela Tyler, and the Sheriff's Office sent a detective to take her statement.
Tyler told the detective that Ray Allen had admitted to her a few days after the murder
that it was he, not Bearden, who was with William in the car when William stabbed
Skipper.   The prosecution sent a copy of Tyler's statement to defense counsel.   The
defense then notified the court of its intention to call Tyler as a defense witness,
indicating that it planned to use her testimony to impeach the anticipated testimony of
Ray Allen.   The prosecution had planned to call Ray Allen as a witness in its case-in-
chief.   But after Tyler's deposition was taken, the prosecutor announced that the State
would not be calling Ray Allen as a witness.   The State's motive for this sudden change
in its trial strategy was obvious.   Ray Allen's testimony would be cumulative to that of
J.T. and Kirchoff.   Everyone expected Ray Allen to deny any involvement in Skipper's
killing, and the State did not wish to give the defense an opportunity to impeach him by
asking him if he had made the purported statements to Tyler.
After the prosecution rested its case-in-chief without calling Ray Allen as a
State witness, the defense announced that it would call him as a defense witness.   The
trial court cautioned that the defense could not call Ray Allen as a witness for the sole
purpose of developing impeachable testimony.   In addition, it instructed the defense that
- 5 -

no questions could be asked about his purported statements to Tyler until her testimony
had been proffered to the court.
Despite the trial court's cautionary instruction, the defense called Ray
Allen to the stand before proffering Tyler's testimony.   And, as discussed above, his
testimony echoed that of the State's witnesses, J.T. and Kirchoff, which was not helpful
to the defense.   In accordance with the trial court's express ruling, defense counsel did
not ask Ray Allen about his purported statements to Tyler.   When Ray Allen left the
witness stand, it was noted that he was "subject to recall."
Later, the defense proffered Tyler's testimony to the court.   She testified
that she knew Bearden and the Brown family, who lived down the road from her parents'
home.   Tyler had maintained "a dating relationship . . . [o]ff and on for about three
years" with Junior Brown (J.T.'s son and Ray Allen's brother).
According to Tyler, she met Ray Allen at her mother's house on March 18,
2007.   Ray Allen was upset, and she asked him what was wrong.   Tyler gave the
following account of Ray Allen's response:
[Ray Allen] said that he had got—that he was with his
cousin, [William].                                                                           [William] had gotten into a confrontation
with a gay guy, and they had an argument, and he had
stabbed the guy.   And he was with his cousin when he did it.
. . . I had asked him if he was involved in the murder,
or like the stabbing, because I didn't know there was a
murder at the time, and he said no, that he didn't involve in
the murder, I guess, or whatever.   He said that he had to
help his cousin, though, was his exact words, because they
was family.
- 6 -

[Ray Allen] was just telling me about him and his
cousin was in a vehicle with a guy, and the guy had tried his
cousin, I guess like sexually, I don't know.   And his cousin
had gotten upset and stabbed the guy.   And that's when he
told me he was in the car when it happened.
After speaking with Ray Allen, Tyler had no doubt that he had admitted that he was with
William and had helped him when Skipper was killed, even though he denied actually
stabbing Skipper.
If Tyler's testimony were true, then Ray Allen's admissions inculpated him
in Skipper's killing.   Although Bearden could not deny that he was involved in cleaning
Skipper's car and attempting to dispose of it, Ray Allen's purported admissions would
exonerate Bearden of any direct involvement in Skipper's death.
After proffering Tyler's testimony, the defense made two requests.   First, it
requested to recall Ray Allen to ask him whether he had made the purported statements
to Tyler.   Second, it requested to present Tyler's testimony about the purported
statements to the jury.
The trial judge found that the proposed evidence was inadmissible under
the Evidence Code and indicated that it would only be admissible if it met the four-part
test of Chambers v. Mississippi, 410 U.S. 284 (1973).   The trial judge outlined the four-
part test of Chambers as follows: (1) the confession or statement was made
spontaneously to a close acquaintance after the crime occurred; (2) the confession or
statement is corroborated by other evidence in the case; (3) the confession or statement
is self-incriminating and unquestionably against interest; and (4) if there is any question
about the truthfulness of the confession or statement, the declarant must be available
for cross-examination.
- 7 -

The trial judge reserved ruling on the defense's requests so that he could
consider them over the evening.   The following day, the trial judge ruled that Ray Allen's
purported statements to Tyler met only the first and fourth parts of the Chambers test.
In the trial judge's view, the statements were not corroborated by other evidence in the
case and were not against Ray Allen's penal interest.   The trial judge also denied the
defense's request to recall Ray Allen to ask him about his purported statements to Tyler.
The trial judge concluded by stating, "I believe that we've eliminated Angela Tyler and
Ray [Allen] Brown from being recalled."
III.   DISCUSSION
A.                                                                                            Calling Ray Allen Brown for Impeachment Purposes
We consider Bearden's second argument first.   Bearden contends that the
trial court erred in refusing to permit him to recall Ray Allen to ask him about his
purported statements to Tyler.   But before the defense asked to recall Ray Allen, the
trial court had ruled that—under the Evidence Code—the defense could not call Ray
Allen for the sole purpose of developing impeachable testimony.   Recalling Ray Allen
for this purpose would only be permissible under a Chambers analysis.
Florida courts generally disapprove of calling a witness for the primary
purpose of developing impeachment evidence.   See Morton v. State, 689 So. 2d 259,
264 (Fla. 1997), receded from on other grounds by Rodriguez v. State, 753 So. 2d 29,
47 (Fla. 2000).   However, "a party may always impeach its witness if the witness gives
affirmatively harmful testimony."   Id.; see also § 90.608, Fla. Stat. (2008) ("Any party,
including the party calling the witness, may attack the credibility of a witness by . . .
[i]ntroducing statements of the witness which are inconsistent with the witness's present
- 8 -

testimony.").   But even though section 90.608 permits a party to impeach its own
witness, "it is still improper under Florida law for a party to call a witness merely as a
device to place the impeaching testimony before the jury."   Curtis v. State, 876 So. 2d
13, 20 (Fla. 1st DCA 2004) (citing Morton, 689 So. 2d 259).
When Bearden's trial began, Ray Allen was slated to appear as a witness
for the prosecution.   It was only after Tyler surfaced as a potential witness—almost two
years after Skipper's death—that the State lost interest in Ray Allen as a witness and
the defense suddenly decided to present his testimony.   As previously noted, Ray
Allen's testimony for the defense was cumulative to that of J.T. and Kirchoff and was
simply not helpful to the defense.   In seeking to recall Ray Allen, the defense was
clearly not anticipating a dramatic, Perry Mason-style moment during which Ray Allen
would confess that it was he and not Bearden who was present in the car when William
stabbed Skipper to death.   Undeniably, the defense's sole reason for seeking to recall
Ray Allen was to develop impeachable testimony.   The trial court correctly ruled that the
defense could not recall Ray Allen for this purpose unless Tyler's testimony was
admissible under Chambers.   This conclusion brings us to consideration of Bearden's
first point on appeal.
B.                                                                                           Admissibility of Angela Tyler's Testimony under Chambers
Bearden argues that the trial court erred in excluding Tyler's testimony that
Ray Allen told her that he had helped William kill Skipper.   Bearden contends that
Tyler's testimony was admissible under a proper Chambers analysis.   Because this
point presents a close question, a brief review of Chambers is in order.
- 9 -

Chambers was charged with murder but claimed that a person named
McDonald was the actual perpetrator.   Chambers, 410 U.S. at 289.   Because the
prosecution did not call McDonald as a witness, Chambers called McDonald as a
defense witness.   Id. at 291.   As a result of Mississippi's party witness rule (a rule that—
similar to Florida law—prohibits a party from calling its own witness for the purpose of
impeachment) and hearsay rules, Chambers "was unable either to cross-examine
McDonald or to present witnesses in his own behalf who would have discredited
McDonald[] . . . and demonstrated his complicity."   Id. at 294.   The United States
Supreme Court found that the application of these rules denied Chambers his due
process right to a fair trial.   Id. at 302-03.   With regard to the out-of-court statements
against interest, the Supreme Court added that in certain circumstances, "where
constitutional rights directly affecting the ascertainment of guilt are implicated, the
hearsay rule may not be applied mechanistically to defeat the ends of justice."   Id. at
302.
The Supreme Court noted that the hearsay statements that Chambers
tried to introduce into evidence were made "under circumstances that provided
considerable assurance of their reliability."   Id. at 300.   In Chambers, McDonald had
confessed to three close acquaintances, the confessions were spontaneous, the
confessions were corroborated by other evidence, and the statements were self-
incriminatory and against McDonald's penal interest.   Id. at 300-01.   Although there was
a great deal of other corroborating evidence, the Supreme Court said that "[t]he sheer
number of independent confessions provided additional corroboration for each."   Id. at
300.
- 10 -

The Supreme Court's holding in Chambers may be reasonably interpreted
as calling for a four-pronged test to determine the admissibility of hearsay evidence of
an out-of-court confession: (1) the statement must be spontaneous, (2) there must be
some external corroboration for the statement, (3) the statement must be against the
declarant's penal interest, and (4) the declarant must be available to testify.   See, e.g.,
Curtis, 876 So. 2d at 21-22.   But Chambers does not necessarily establish an
immutable checklist of four requirements.   Instead, the primary consideration in
determining admissibility is whether the statement bears sufficient indicia of reliability:
Out-of-court statements are traditionally excluded because
they lack the conventional indicia of reliability: they are
usually not made under oath or other circumstances that
impress the speaker with the solemnity of his statements; the
declarant's word is not subject to cross-examination; and he
is not available in order that his demeanor and credibility may
be assessed by the jury.   A number of exceptions have
developed over the years to allow admission of hearsay
statements made under circumstances that tend to assure
reliability and thereby compensate for the absence of the oath
and opportunity for cross-examination.   Among the most
prevalent of these exceptions is the one applicable to
declarations against interest—an exception founded on the
assumption that a person is unlikely to fabricate a statement
against his own interest at the time it is made.
Chambers, 410 U.S. at 298-99 (footnote omitted) (citation omitted).   In any case, the
four-pronged test provides a helpful framework for the analysis of specific cases.
Here, the trial court held that Bearden had met prong one (spontaneous
statement) and prong four (declarant available to testify).   However, the trial court also
found that Bearden had not met either prong two (corroboration) or prong three
(declaration against penal interest).   With regard to the third prong, the trial court
explained its reasoning as follows:
- 11 -

Here, the statement was made to an alleged acquaintance,
not the police.   Two, the statement is shifting the burden.   It's
not saying I killed him, he said [William] Brown killed him.
. . . [T]he statements that [Tyler] alleged he made that
could be considered against penal interest was, he's, he's
kin, and I helped him.   And some of these cases talk about it
can't be something vague.   It must be truly against penal
interest.   I helped him, with nothing more than that, that's not
chargeable.
. . . So I don't see any corroboration to what he admits
could be considered a statement against interest.
I don't believe it's based on that, that it is, in fact, truly
a statement against interest.   I go back to the case that I rely
on that Butler[5] didn't merely imply guilt, he said I killed him.
In Chambers, the case that—that this exception was created
out of, he admitted he killed him.   And, in fact, in every single
case I've read, the party making the statement admitted to
substantial involvement, not some vague involvement that
he's kin, and I helped him.
. . . I don't think this was truly a statement that could
be considered against his penal interest because without
substantially more than what we heard yesterday [at the
proffer], I don't believe there's any way the state, or Mr.
Brown, could believe that his statement was against his
penal interest, or that the state could bring charges against
him.
On this point, we disagree with the trial court's conclusion.
In reaching its conclusion, the trial court relied on the vague nature of the
remarks attributed to Ray Allen and on the absence of a detailed explanation con-
5The trial court's reference is to Brenton Butler, the juvenile who had
confessed to the murder and robbery for which another man was tried and convicted in
Curtis v. State, 876 So. 2d 13 (Fla. 1st DCA 2004).
- 12 -

cerning how Ray Allen had actually assisted William in killing Skipper.   The trial court's
reasoning is surprisingly incongruous with the facts of the State's case against Bearden.
The State offered no evidence concerning how Bearden had allegedly assisted William
in killing Skipper.   The State's evidence about Bearden's involvement in the killing was
vague and general; its proof was limited to placing Bearden in the car when William
stabbed Skipper.   But this was sufficient for the State to charge Bearden with first-
degree murder and to seek the death penalty against him.   The State's evidence was no
more specific about Bearden's involvement in the killing than the statements that Ray
Allen purportedly made to Tyler.   For these reasons, we agree with Bearden that the
statements attributed by Tyler to Ray Allen were unquestionably against Ray Allen's
penal interest.   Thus the third prong of Chambers is satisfied.
The second prong of the Chambers test, corroboration, is a different
matter.   The trial court found that the purported statements made by Ray Allen to Tyler
were not corroborated.   The trial court offered two main reasons for its ruling.   First, the
purported statements were not corroborated by any evidence in the case except for
Bearden's pretrial statement.   Indeed, the remaining evidence in the case was in direct
conflict with the substance of the purported statements.   The trial court's second reason
focused on Tyler's credibility.   As the trial court observed, Tyler claimed to be close
friends with both the Brown family and Bearden.   Nevertheless, despite these
friendships and the extensive media coverage of the case, Tyler had not mentioned the
substance of the statements to anyone connected with the case for almost two years.   A
recipient's substantial delay in coming forward with a hearsay account of a declarant's
confession to a crime may be considered in assessing the reliability of the recipient's
- 13 -

account of the confession.   Jones v. State, 709 So. 2d 512, 525 (Fla. 1998).   The trial
court also pointed out that Tyler's account did not include any details that would not
have been known to anyone in Polk County who had followed the reports about the
case that appeared in the local press and on television.   Finally, the trial court
questioned how Tyler could pinpoint the date of her alleged conversation with Ray Allen
almost two years after the event.   Tyler's recollection of this detail seemed too good to
be true.   In short, Tyler's testimony about the purported statements was not credible.
The trial court correctly noted that the only direct corroboration of Tyler's
account of the purported statements was Bearden's prearrest statement to detectives.
Bearden argues that his statement constitutes sufficient corroboration to satisfy
Chambers' third prong, citing the First District's decision in Curtis, 876 So. 2d 13.
In Curtis, a third party named Butler had confessed to the police that he
had shot a murder victim.   Id. at 16.   The case against Butler for the murder went to trial,
and he was acquitted.   Id.   Before Curtis' trial for the same murder, Butler gave a
deposition repudiating his earlier confession and denying that he shot the victim.   Id.
The State made a pretrial motion to exclude evidence about Butler's earlier confession.
Id.   The State argued that Butler's confession was not admissible as a statement
against interest because Butler was available to testify.   Id.; see § 90.804(2)(c), Fla.
Stat. (2001).   The trial court granted the State's motion and ruled that evidence of
Butler's confession would be excluded at Curtis' trial.   Curtis, 876 So. 2d at 16.   At trial,
the defense proffered Butler's earlier confession, but the trial court adhered to its pretrial
ruling and excluded the proffered evidence.   Id. at 18.   Curtis was convicted of first-
degree murder and armed robbery, and he appealed.   Id.
- 14 -

On appeal, the First District reversed and remanded the case for a new
trial.   Id. at 16.   The Curtis court acknowledged that under Florida law it is improper for a
party to call a witness for the sole purpose of placing impeachment testimony before the
jury.   Id. at 20.   Nevertheless, the court found that the due process considerations
discussed in Chambers required the trial judge in Curtis' case "to admit a third-party
confession under constitutional principles, even if it does not qualify as a declaration
against penal interest under the state law of evidence."   Id. at 21.   The First District
explained that, as in Chambers, Butler's confession was made under circumstances that
provided an assurance of reliability.   Id. at 21-23.
We find little similarity between this case and Curtis.   Here, the trial court
was confronted midtrial with the surprise appearance of a previously unidentified
witness nearly two years after Skipper's death.   This witness, who described herself as
a friend of Bearden, claimed that Ray Allen had admitted to her that he was in the car
with William when Skipper was killed.   Under this questionable scenario, the trial court
could reasonably conclude that the statements attributed to Ray Allen by Tyler fell short
of an out-of-court confession made "under circumstances that provided considerable
assurance of [its] reliability."   Chambers, 410 U.S. at 300.
We also consider the doubts expressed by the trial court about Tyler's
credibility as a witness.   Bearden argues that Tyler's credibility was a matter for the jury
to decide.   Although this argument has some appeal, we disagree.   The trial court's task
was to determine—before allowing the jury to hear Tyler's testimony—whether the
purported hearsay statements of Ray Allen bore sufficient indicia of reliability.   To the
extent that Chambers requires an analysis of the reliability of the proposed third party's
- 15 -

out-of-court confession, an evaluation of the credibility of the witness the defense
proposes to use to place the alleged statements on the record is unavoidable.   See
Czubak v. State, 644 So. 2d 93, 95 (Fla. 2d DCA 1994) ("The trial judge . . . found not
only that there were no corroborating circumstances showing the trustworthiness of the
statements, to the contrary she found the circumstances such as to render the
statements unreliable and unworthy of trust.").
In Chambers, the reliability of the alleged third party's out-of-court
statements was bolstered by several factors.   First, the statements were made to more
than one witness.   Second, the third party was seen with a gun shortly after the
shooting.   Third, there was evidence that the third party had previously owned a gun
and then bought another one shortly after the crime occurred.   410 U.S. at 300.   In this
case, there is nothing other than Bearden's self-serving statements to the detectives
before his arrest.6   In his pretrial statement, Bearden admitted committing several
felonies, but he carefully avoided admitting any direct involvement in Skipper's murder.
And the crimes to which Bearden admitted were crimes that he was unable to deny
because of the number of witnesses who knew that he had participated in cleaning
Skipper's car and attempting to dispose of it.   Under the circumstances, we cannot say
that the trial court abused its discretion in concluding that Tyler's testimony about Ray
6We recognize that the testimony of the State's witnesses and Ray Allen
Brown about the sequence of events was often inconsistent.   And we acknowledge
that J.T. Brown and John Kirchoff likely had a motive to protect Ray Allen Brown from
prosecution.   But inconsistencies in the evidence and the credibility of the witnesses
were issues for the jury to weigh; they do not bear upon the question of whether Ray
Allen Brown's purported out-of-court confession bore sufficient indicia of reliability for
admission under Chambers.
- 16 -

Allen's purported statements failed to meet the test of reliability outlined in Chambers.   It
follows that the trial court did not err in excluding her testimony at Bearden's trial.
IV.   CONCLUSION
For the foregoing reasons, we affirm the judgment and sentences imposed
on Bearden.   Our affirmance is without prejudice for Bearden to raise his claims of
ineffective assistance of counsel in a timely postconviction motion.
Affirmed.
VILLANTI, J., Concurs.
ALTENBERND, J., Concurs with opinion.
ALTENBERND, Judge, Concurring.
I join in the court's opinion but admit that I am troubled by Mr. Bearden's
conviction for second-degree murder.   The evidence supporting that conviction is weak.
Although I cannot say that the trial court committed reversible error by omitting the
hearsay testimony of Angela Tyler concerning the alleged confession of Ray Allen
Brown, if I had been the trial judge, I believe I would have admitted this testimony.   I
write to explain why I would have allowed the jury to decide the significance of this
alleged confession.
- 17 -

The jury's verdict in this case convicting Mr. Bearden not of robbery but of
a grand theft of Mr. Skipper's car is fully supported by the evidence.   After William
Brown killed Mr. Skipper in Mr. Skipper's car, Mr. Bearden had possession of the car as
a known stolen vehicle, and he destroyed evidence of the murder that had occurred in
the car.   Apparently, in a related criminal proceeding, Mr. Bearden was convicted as an
accessory after the fact for this murder on the theory that he was an accessory to the
first-degree murder committed by William Brown.   The evidence in this record would
support that conviction.
The State indicted Mr. Bearden for first-degree premeditated murder of
Mr. Skipper.   The State submitted the case to the jury on theories of both first-degree
premeditated murder and first-degree felony murder.   The jury convicted Mr. Bearden of
second-degree murder.7   I question whether the evidence supported a conviction for
this lesser offense but conclude that the evidence was sufficient to convict Mr. Bearden
of first-degree felony murder.
A great majority of the testimony in this case is influenced by illegal drugs.
The witnesses were either under the influence of drugs at the time of these events or
involved in the sale of drugs.   Credibility is a very complex matter in this case.
Assuming that there were other people in the car at the time William Brown killed Mr.
Skipper, several people in addition to Mr. Bearden had at least an equal motive and
opportunity to participate in the murder.
7Because it would have little practical effect on Mr. Bearden's sentences, I
will not discuss at any length the oddity of a conviction as a principal to second-degree
murder and a second conviction for accessory after the fact for a first-degree murder
arising from a single homicide.
- 18 -

It seems likely from the evidence that Mr. Skipper stopped on the side of
the road late on the evening of March 13, 2007, to pick up Mr. Bearden.   Mr. Skipper
might have known Mr. Bearden, but there is no evidence that the two men were
established friends.   The record leaves one only to speculate as to the reason that Mr.
Skipper picked up Mr. Bearden on this night.   Mr. Bearden claimed that the two men
went briefly to Mr. Skipper's house and then proceeded to the Browns' house to
purchase drugs.
After arriving at the Browns' house, Mr. Skipper appears to have reentered
his car where William Brown stabbed him several times.   No one claims to have been
an eyewitness to this event.   There is no physical evidence that places Mr. Bearden or
anyone other than William Brown in the car at the time of the murder.   However, it is
likely that some other person or persons were in the car at the time of the stabbing, and
it is at least plausible that the additional occupants were principals in the offense and
not merely occupants.   Whether the evidence established beyond a reasonable doubt
that Mr. Bearden was such a principal is a much closer question.
As our opinion reflects, the occupants of the Brown house, where drugs
were being sold, claimed that Mr. Bearden, but not Ray Allen Brown, accompanied
William Brown on the fatal trip in the car.   Mr. Bearden claimed that although he was not
in the car, he knew the Browns were taking Mr. Skipper for a ride to rob him and he
approved of the plan so long as he got something out of the deal.   It is a close question
whether Mr. Bearden's admission of this fact would be sufficient to convict him of first-
degree felony murder.   The State did not charge him with being a member of any
conspiracy.
- 19 -

The primary testimony that would both place Mr. Bearden in the car at the
time of the murder and suggest that he was a principal in that offense was the testimony
of Maria and Robert Aguero.   After the murder occurred and before the car was burned,
Mr. Bearden and another man tried to sell the stolen car to members of the Aguero
family.   This family also appears to have ties to drug dealing.   In the process of trying to
sell the car to them, Mr. Bearden allegedly had private conversations in which he
admitted that he had intended to steal Mr. Skipper's money and credit cards and that he
had "f**cked up" the victim.   This hearsay testimony is hardly a full confession to any
form of murder.
In this context, the evidence may have created an issue for the jury, but
there was barely enough reliable evidence to establish that Mr. Bearden was a principal
in the murder.   It was possible that he was a drug addict who managed to place Mr.
Skipper in a location where others killed him.
I provide this brief explanation because it seems important when deciding
whether the hearsay confession of Ray Allen Brown to Angela Tyler was admissible.   If
admitted, this testimony would have been significant defensive evidence.
This was a televised trial.   Angela Tyler's delay in coming forward to testify
against a member of the Brown family may be explained by entirely innocent reasons.
Moreover, her ability to recall details of such a confession after only two years is not
necessarily surprising.   It is not every day that a person confesses to murder, and the
recipient of the confession is likely to recall the incident in detail.   The trial judge was in
a position to evaluate Angela Tyler's credibility, but I admit that on the basis of the cold
- 20 -

record, I would have allowed the jury to make the evaluation of her credibility given the
weakness of the evidence against Mr. Bearden.
As for the need for corroboration under Chambers, I admit that what
exactly needs to be corroborated is confusing to me.   It is undisputed that Mr. Skipper
was murdered shortly after being in a house with Ray Allen Brown.   Ray Allen Brown
certainly had the ability and even a motive to be precisely where his alleged confession
to Angela Tyler placed him.   The truth is that we have only a little more corroborating
evidence to support the alleged confession of Mr. Bearden to the Agueros than the
alleged confession of Ray Allen Brown to Ms. Tyler.
I cannot dissent in this case, but I would have greater confidence in the
jury's verdict if they had received the additional testimony.
- 21 -

Download 2D09-1325.pdf