04-2850 WILLIAMS V. STATE

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State: Florida

Court: Florida Third District Court

Docket No: 04-2850 WILLIAMS V. STATE

Case Date: 12/20/2006

Preview:NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF.

IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JULY TERM, A.D. 2006

MICHAEL LASHAWN WILLIAMS, Appellant, vs. THE STATE OF FLORIDA, Appellee.

** ** ** ** ** ** LOWER TRIBUNAL NO. 01-34569 CASE NO. 3D04-2850

Opinion filed December 20, 2006. An Appeal from the Circuit Court for Miami-Dade County, Victoria S. Sigler, Judge. Bennett H. Brummer, Public Defender, and Blumberg, Assistant Public Defender, for appellant. Howard K.

Charles J. Crist, Jr., Attorney General, and Jennifer Falcone Moore and Linda S. Katz, Assistant Attorneys General, for appellee.

Before FLETCHER, SHEPHERD, and SUAREZ, JJ. SUAREZ, J. The defendant asserts that he should receive a new trial because the State referred to evidence in its opening statement

that it never introduced at trial, and because admission of the victim's dying declaration violated his right to confront the witness testifying against him. We affirm the conviction and sentence. The defendant was charged with the shotgun murder of his sister's ex-boyfriend. The victim and the defendant's sister, Nicole, had dated and lived together for several years. They fought and Nicole moved out. The victim came to the school where Nicole worked, the two had an argument, and the victim took Nicole's purse. Nicole was upset because the purse contained keys, and a friend drove Nicole from work to her brother's house to pick up an extra set of car keys. That evening, a man who witnesses identified as the defendant, carrying a shotgun,

waited for the victim outside the victim's duplex. He left for approximately fifteen minutes, and then returned with Nicole's keychain. He let himself into the victim's duplex, brought the victim outside, and eventually shot the victim in the abdomen with the shotgun. The victim came back into the duplex and

locked the door. The defendant kicked down the door, followed the victim into the duplex, and exited carrying a black bag. He left the scene on foot. Neighbors and police arrived on the scene within two minutes of the shooting to find the victim bleeding, screaming, and trying to push his intestines back into his abdomen. He told bystanders and the police that his

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girlfriend's brother Mike had shot him. He died at the hospital a few hours later. First, the defendant argues that his motion for mistrial should have been granted because the State's opening statement contained information attributable to Nicole that was not proven at trial. In an opening statement, "[t]he prosecuting attorney may outline the facts which he, in good faith, expects to prove and which are competent for him to prove." Paul v. State, 209 So. 2d 464, 464 (Fla. 3d DCA 1968). Here, the prosecutor laid out the facts that the State expected to present at trial. This included testimony that it stated would come from Nicole. Prior to trial the State had met with and interviewed Nicole. She gave the State her cellular phone number and promised to appear at trial. She then failed to appear. There has been no suggestion that the prosecutor acted in bad faith by outlining Nicole's expected testimony in the State's opening statement. Ricardo v. State, 481 So. 2d 1296 (Fla. 3d DCA 1986). Even though Nicole failed to testify, the evidence that the State claimed in opening would be elicited through Nicole was either introduced by the State through other witnesses at trial or was irrelevant or tangential. Therefore, the objected-to portion of the opening statement was harmless beyond a reasonable doubt. Occhicone v. State, 570 So. 2d 902 (Fla. 1990) (trial court did not abuse its discretion by

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referring briefly in opening statement to doctor expected to testify who ended up not being called); Williams v. State, 865 So. 2d 17 (Fla. 4th DCA 2003) (statement in opening regarding children being removed from home harmless in light of

uncontested testimony to this effect); Ricardo v. State, 481 So. 2d 1296 (Fla. 3d DCA 1986) (no error where prosecutor referred to facts contained in a report that had the possibility of being introduced into evidence); Travieso v. State, 480 So. 2d 100 (Fla. 4th DCA 1985) (state's reference to a potential witness in opening statement as though he was going to testify at trial, who ended up not testifying at trial, was not error). Next, the defendant argues that the victim's statements to police and to witnesses identifying him as the shooter violated the Confrontation Clause pursuant to Crawford v. Washington, 541 U.S. 36 (2004). As a general matter, statements made in response to a police interrogation are defined as "testimonial," and are inadmissible because they violate the Confrontation Clause. U.S. Const. Amend. VI; see Crawford, 541 U.S. at 51-52 (specifically including police interrogations as testimonial statements);

State v. Hosty, 31 Fla. L. Weekly S783 (Fla. Nov. 9, 2006) (holding that mentally impaired victim's statements to police officers Crawford). were testimonial and therefore inadmissible that under dying

However,

Crawford

acknowledges

declarations have been the "one deviation" to the rule excluding

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testimonial statements in criminal cases, and that the exception may remain valid post-Crawford: The existence of [the dying declaration] exception as a general rule of criminal hearsay law cannot be disputed. . . . Although many dying declarations may not be testimonial, there is authority for admitting even those that clearly are. . . . We need not decide in this case whether the Sixth Amendment incorporates an exception for testimonial dying declarations. If this exception must be accepted on historical grounds, it is sui generis. Crawford, 541 U.S. at 56 n.6 (internal citations omitted). Several state and federal courts addressing this issue have found that the dying declaration exception to the hearsay rule has survived Crawford. See State v. Martin, 695 N.W.2d 578

(Minn. 2005) (admission of a dying declaration into evidence does not violate the defendant's confrontation rights because such an exception existed at common law and was not repudiated by the Sixth Amendment); People v. Monterroso, 101 P.3d 956

(Cal. 2004) (finding that the dying declaration exception does not conflict with Crawford). Cf. United States v. Jordan, No. 04-CR-229-B (D. Colo. Mar. 3, 2005) (holding inadmissible the victim's defendant declaration trauma as the room statements who to police him identifying under the the dying and

person

stabbed

exception,

excited

utterance

exception,

forfeiture by wrongdoing doctrine). The Supreme Court also expressly accepted the doctrine of forfeiture by wrongdoing, which "extinguishes confrontation

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claims on essentially equitable grounds. . . ." Crawford, 541 U.S. at 62; see 28 U.S.C. 804(b)(6) (Federal Rules of Evidence forfeiture by wrongdoing provision making admissible "[a]

statement offered against a party that has engaged or acquiesced in wrongoing that was intended to, and did, procure the

unavailability of the declarant as a witness"); see also United States v. Mayhew, 380 F.Supp.2d 961 (S.D. Ohio 2005) (rejecting argument that dying Clause, the declarations but are an exception to the

Confrontation statement under

admitting by

victim's

audiotaped The

forfeiture

wrongdoing

doctrine).

Florida Evidence Code does not contain language that directly mirrors the Federal Evidence Code's forfeiture by wrongdoing

provision. However, Florida law does acknowledge that a party's wrongdoing may constitute waiver under certain circumstances. See Ellison v. State, 349 So. 2d 731, 732 (Fla. 3d DCA 1977) (in the context of invited error, acknowledging that

"[c]onstitutional rights may be waived just as other rights may be waived; a criminal defendant may, by his conduct, make

otherwise constitutionally inadmissible evidence admissible for certain purposes"); see People v. Melchor, 841 N.E.2d 420 (Ill. App. 2005) (although no Illinois case had adopted Federal Rule of Evidence 804(b)(6), holding that the doctrine of forfeiture by wrongdoing should be part of Illinois law based on public

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policy 2006).

considerations),

app.

allowed,

850

N.E.2d

811

(Ill.

In the instant case, the victim identified the defendant as the man who shot him in response to police questioning minutes after he was shot, as he lay bleeding and was attempting to push his intestines the back into his body. The responding than officer following

questioned

victim

immediately,

rather

procedure and waiting for an investigator to arrive, because the victim was very gravely injured and appeared to be dying.

Although we find the federal and state opinions retaining the dying declaration exception to be persuasive, we need not decide here whether the victim's statements were "testimonial" under Crawford, or whether the dying declaration exception passes

constitutional muster. The outcome of the instant case is not dependent upon whether the victim's statements were

"testimonial" or admissible as a dying declaration. The victim's statements to the police in the instant case are cumulative to his statements made to lay witnesses identifying the defendant as the shooter. These statements are non-testimonial and

admissible under Crawford as dying declarations. See Crawford, 541 U.S. at 68 ("Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers' design to afford the States flexibility in their development of hearsay law-as does Roberts, and as would an approach that exempted such statements from

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Confrontation Clause scrutiny altogether"); Soles v. State, 119 So. 791 (Fla. 1929) (holding admissible as a dying declaration a boy's statement to his father identifying the shooter twenty to twenty-five minutes after he was shot in the head). Therefore, even if the victim's statements to the police are inadmissible under Crawford, the evidence is cumulative and any error is

harmless beyond a reasonable doubt. Lee v. State, 869 So. 2d 1251 (Fla. a 3d DCA 2004) doubt (admission where it of was hearsay was harmless of other

beyond

reasonable

cumulative

evidence). Affirmed.

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