Adkins v. State

• Decision Date: 06 June 2007
• Docket Number: No. 3D05-1583.,3D05-1583.
• Citation: Adkins v. State, 963 So.2d 737 (Fla. App. 2007)
• Parties: Andre Elton ADKINS, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

963 So.2d 737

Andre Elton ADKINS, Appellant, v. The STATE of Florida, Appellee.

No. 3D05-1583.

District Court of Appeal of Florida, Third District.

June 6, 2007.

Rehearing and Rehearing En Banc Denied September 18, 2007.

Bennett H. Brummer, Public Defender, and Valerie Jonas, Assistant Public Defender, for appellant.

Bill McCollum, Attorney General, and Maria T. Armas, Assistant Attorney General, for appellee.

Before GERSTEN, GREEN, and FLETCHER, JJ.

GREEN, J.

Andre Elton Adkins appeals his conviction and sentence for the second degree murder of his friend, Theron Gaskin, pursuant to a jury verdict. He raises two arguments on this appeal. First, he asserts that the trial court improperly denied his peremptory challenge to a Hispanic juror. He next maintains that the trial court improperly denied his motion for a new trial on the grounds that the State's suppression of certain Brady¹ material, which could have impeached or undermined the credibility of the state's sole eyewitness, prejudiced his right to a fair trial. We reverse based upon our conclusion that the second issue warrants a new trial; it is unnecessary for us to address the first issue.

BACKGROUND

The day of the incident began as a day of leisure activities for Adkins and two of his life-long close friends, Carl Glover, and Theron Gaskin, the victim.² By the day's end, however, the men had been drinking heavily, an argument broke out, and Gaskin was shot to death. Adkins would be charged as the shooter; Glover would serve as the State's sole eyewitness. Because there was no independent physical evidence tying Adkins to the murder, the State's case rested solely upon the testimony and credibility of Glover.

Prior to putting Glover on the stand, the State moved in limine to exclude evidence that Glover had been arrested. The State disclosed that nine months after the murder, Glover was arrested for throwing a deadly missile into a vehicle. The State argued that the arrest was not an appropriate topic for cross-examination because the incident was too remote (fourteen months before trial), and the case against Glover had been no-actioned.

The defense argued that evidence of the arrest should not be excluded because the case was no-actioned solely to protect Glover's credibility in this murder case. Hence, the defendant was entitled to question Glover on cross-examination regarding this matter. The defense additionally noted that three months after the murder, Glover was the aggressor in an aggravated assault complaint involving a gun matching the same description as the weapon used to kill Gaskin. These incidents, the defense argued, would be relevant to impeach the credibility of the State's sole eyewitness—the only source of evidence against Adkins. Moreover, the defense urged that Glover's subsequent use of a weapon similar to the one utilized in this case would tend to suggest that Glover, not Adkins, possessed the murder weapon.

The court decided to defer ruling on these matters until after Glover's direct testimony. Thereafter, the court announced that the defense could question Glover outside of the jury's presence about these two incidents. The court would then determine whether they could be introduced on cross-examination.

TRIAL EVIDENCE

State's Case

Glover took the stand and acknowledged that he was a convicted felon.³ He testified that he had known Adkins for twenty years and the victim, Gaskin, for 15 years. On the day in question, the three men ran errands together in the morning. They picked up Adkins' co-worker, Roy, and went shopping at the flea market. Later, the group bought some gin and drove to a pool hall.

Roy, Glover, and Gaskin went into the pool hall. Adkins remained in the car talking on his cellular phone and drinking gin. Gaskin drank beer inside the pool hall. Glover testified that he would periodically return to the car to drink gin. Glover testified the he was "tipsy," but not drunk. He testified, however, that Gaskin drank too much beer, became drunk, and started acting a "little crazy." The pool hall owner came over and told the men to quiet down. Glover went out to the car and warned Adkins that Gaskin "look[ed] like trouble."

Gaskin then emerged from the pool hall. He was angry and arguing with Glover. At that time, Glover's brother drove up. Glover told Gaskin to get in Adkin's car; Glover drove away with his brother. They went to a gas station; Adkins and Gaskin met up with them there. Roy remained at the pool hall.

Glover testified that Gaskin was very drunk at the gas station. Gaskin vomited and tripped over himself. Glover also testified that there was a white, Hispanic girl at the gas station who was there to meet Adkins. Everyone remained at the gas station for twenty to thirty minutes. Glover testified that he calmed Gaskin down and told him he wasn't mad at him. Glover took Gaskin back to Adkins' car. Gaskin passed out in Adkins' car. Glover's brother left, and Glover got in the car with Adkins and Gaskin. The three men drove away to take Gaskin home. The woman Glover described as Hispanic followed them in her own car.

Gaskin awakened on the ride home and was very upset with Adkins about something. When they arrived at Gaskin's home, Gaskin became angry at Glover. Gaskin took off his shirt and challenged Glover to a fight. Glover testified that he refused.

Glover testified that Gaskin went over to Adkins who was sitting in the car. Adkins got out of the car. Gaskin pushed Adkins and slapped his face. According to Glover, Adkins then took out a chrome .45 caliber pistol and shot Gaskin. According to Glover, Adkins kept firing in quick succession as Gaskin put up his hands in a defensive posture. Gaskin turned and fled and Adkins chased him and continued shooting Gaskin in the back.

Gaskin died from a bullet wound to the back. He also sustained four other non-lethal bullet wounds. The police found five .45 caliber casings, fired from the same semi-automatic pistol, on the side-walk in front of Gaskin's house.

Glover testified that he ran from the scene of the shooting to Adkins' home down the street because someone was also shooting at him. However, no physical evidence, such as ejected shells, was recovered to corroborate this testimony. When Glover arrived at Adkins' home, Glover told Adkins' brother, McMullen, what had transpired. Glover and McMullen then drove away together. While the two of them were together, Adkins called Glover's cellular phone. Glover handed the phone to McMullen who spoke to Adkins. Glover and McMullen drove to a girl's house⁴ where they found Adkins.

According to Glover, they found Adkins covered in blood with the .45 caliber pistol still in his hand. Adkins was crying and asking why the victim had to slap him. Adkins took off his clothes and showered. After his shower, Adkins joined Glover and started asking what he should do next. At that point, a decision was made to get rid of the murder weapon. Glover, McMullen, and Adkins drove to a canal. When they reached the canal, Glover testified that McMullen was ill and Adkins did not want to look at the gun; Glover tossed the gun into the canal. Glover then got back into the car and drove home.

The next day, Glover spoke to Adkins. According to Glover, Adkins stated that he "didn't know what came over him." He could not explain why he had killed his friend. Glover later told his wife and parents what had happened and then told Adkins that he was going to report the matter to the police. Glover gave two statements to the police—the first statement described the events which lead to the shooting; the second statement concerned events after the shooting, including his disposal of the murder weapon. The State then tendered Glover for cross-examination.

Prior to cross-examination, the trial court revisited the State's pre-trial motion in limine to exclude evidence of Glover's arrest for throwing a deadly missile and evidence of an incident involving an aggravated assault, both of which occurred after the murder and prior to the trial. The trial court permitted the defense to voir dire Glover outside of the presence of the jury about these incidents.

Glover admitted that he had been arrested in April 2003 for throwing a deadly missile but he did not remember being arrested on October 30, 2002, for the aggravated assault. He also confirmed that he had recently been arrested for driving with a suspended license but that the case had been dismissed.

The trial court found the April 2003 arrest for throwing a deadly missile was too remote in time to form a basis for a bias and granted the state's motion in limine as to the arrest. As to the October 2002 incident involving the aggravated assault, the trial judge concluded that there was nothing of record to indicate that Glover had ever been arrested for this charge. The court, therefore, granted the state's motion in limine as to this incident as well.

During cross-examination of Glover, defense counsel drew out the myriad of inconsistencies between Glover's deposition testimony, his statements to police, and his trial testimony. The defense's theory was that Glover had committed the murder. The defense particularly highlighted the inconsistencies in Glover's description of the woman who had met Adkins at the gas station. Glover described her as Hispanic at some points, then as white. Her testimony for the defense would reveal that she was African-American.

Additionally, the defense drew out prior inconsistent statements Glover gave about how he disposed of the .45 caliber gun. Originally Glover told the police that Adkins had thrown the gun in a canal. He admitted lying about this to the police, and that he had thrown the gun in the canal. Although the police dragged the canal twice, no gun was ever recovered.

Ms. Millicent Dove then testified for the State. She lived on the street where the murder took place. She testified that after hearing "one shot," she...