Bass v. State

• Decision Date: 14 December 2018
• Docket Number: No. 1D14-2449,1D14-2449
• Citation: 304 So.3d 786
• Court: Florida District Court of Appeals
• Parties: Devin Lee BASS, Appellant, v. STATE of Florida, Appellee.

304 So.3d 786

Devin Lee BASS, Appellant,

v.STATE of Florida, Appellee.

No. 1D14-2449

District Court of Appeal of Florida, First District.

December 14, 2018

Michael Ufferman of Michael Ufferman Law Firm, P.A., Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Donna Gerace, Kaitlin Weiss, and Virginia Harris, Assistant Attorneys General, Tallahassee, for Appellee.

Per Curiam.

At a New Year's Eve gathering, Devin Bass got drunk and angry. He hit Cody Healy in the face so hard that Healy fell back into a bonfire. According to an eyewitness, Healy's hair was in flames when he was pulled away, and he "looked dead." Healy was not dead, but he suffered significant injuries and was hospitalized for about a month.

Most of the crowd scattered after the assault, but Bass stuck around. Police soon arrived, and an officer approached Bass and asked what happened. Bass said there had been an altercation but that he knew little about it. The officer decided he should keep an eye on Bass, so he asked Bass to walk with him towards a larger group. Bass and the officer started walking together, but the officer became distracted and soon discovered Bass was no longer with him. The officer then saw that Bass had returned to his truck and had removed his shirt and hat. Bass was leaning inside the truck, digging around. Concerned Bass was reaching in for a weapon, the officer ordered Bass to step away from the truck, and Bass complied. An officer asked Bass for his name, and Bass lied; he said he was "Dillon Barns." The officers then searched the truck (with Bass's consent) and found an ID card with Bass's picture and real name.

Bass continued to insist he was not Bass, telling officers the truck and identification card belonged to a friend. After further questioning, Bass gave an incorrect birthdate. The officer then placed Bass in the back of his patrol car while he continued with the investigation. After gathering information from witnesses, the officer returned to his patrol car and searched for Bass's information on his computer. At one point, while the officer was running the information, he turned to Bass and said "hey Devin?" and Bass responded "yeah?" The officer then said "I got you," and Bass finally admitted who he was.

The State charged Bass with three counts of aggravated battery with great bodily harm—one count for the attack on Healey, and two counts for separate attacks on other victims. The State also charged Bass with one count of resisting an officer without violence, based on his lying about his identity. The jury convicted Bass of the lesser offense of felony battery against Healey, and it acquitted Bass as to the other victims. It convicted him of resisting an officer. The court sentenced Bass to five years' imprisonment and one year of probation. This is Bass's appeal, which presents six independent issues.

I.

Bass's first argument is that the trial court erred in not giving a requested instruction about character evidence. The proposed instruction would have told the jury to "consider testimony that a defendant is a peaceful person along with all the other evidence." Bass contends that without this instruction, the jury was not adequately instructed on his theory of defense, namely that he was a peaceful person. See Stephens v. State , 787 So.2d 747, 756 (Fla. 2001) (noting that to be entitled to special instruction, defendant must show that "the standard instruction did not adequately cover the theory of defense"). But Bass's theory of defense was that he did not commit the crime. Evidence of his peacefulness supported that theory of defense—as did other evidence—but peacefulness was not an independent defense. The jury concluded Bass was guilty after the court correctly instructed jurors to consider all the evidence, to decide for themselves what evidence was reliable, and to convict only if guilt was proven beyond a reasonable doubt. The court's instructions adequately covered Bass's theory of defense. See Branch v. State , 685 So.2d 1250, 1253 (Fla. 1996) ("The jury in the present case was fully instructed on reasonable doubt and burden of proof and there is no reason to believe that these instructions were insufficient to guide the jury in its deliberations."). We therefore find no abuse of discretion.¹

II.

Next, Bass argues that the trial court should have allowed him to interview a juror before denying his motion for new trial. After trial, the court and the parties received correspondence from a juror expressing concerns about how the verdict was reached and doubts as to its correctness. Specifically, the juror indicated concern that the foreman had not presented certain questions to the court, and the juror wrote she "was very rushed" and felt pressured to go along with the majority's decision. Bass moved for a new trial and sought to interview the juror. Bass argued, among other things, that the interview was necessary to determine whether juror misconduct had occurred, whether the juror had been denied the ability to ask questions of the court, and whether the verdict had been decided by lot.

A trial court, in its discretion, may enter an order permitting parties to interview a juror and must do so if it finds a reason to believe a verdict may be subject to challenge. Fla. R. Crim. P. 3.575. However, "Florida's Evidence Code ... absolutely forbids any judicial inquiry into emotions, mental processes, or mistaken beliefs of jurors." Baptist Hosp. of Miami, Inc. v. Maler , 579 So.2d 97, 99 (Fla. 1991) (citation omitted); see also § 90.607(2)(b), Fla. Stat. (2017). This includes inquiries into whether a juror "did not assent to the verdict; that he misunderstood the instructions of the Court[,] the statements of witnesses[,] or the pleadings in the case; that he was unduly influenced by the statements or otherwise of his fellow-jurors, or mistaken in his calculations or judgment, or other matter resting alone in the juror's breast." Maler , 579 So.2d at 99.

We review a trial court's denial of a motion to interview jurors for abuse of discretion, Anderson v. State , 18 So.3d 501, 519 (Fla. 2009), and we find none here.

III.

Bass next argues that the trial court erred by admitting a photograph of Healey's injuries that he contends was so gruesome that the danger of unfair prejudice outweighed any probative value. Bass argues this was particularly so because the photograph was cumulative of another admitted photograph. Trial courts should exclude photographs that are "so shocking in nature as to defeat the value of their relevance" and distract the jury from "a fair and unimpassioned consideration of the evidence." Czubak v. State , 570 So.2d 925, 928 (Fla. 1990) (citations omitted). But "just because a photograph is gruesome does not make the photograph inadmissible." Victorino v. State , 127 So.3d 478, 499 (Fla. 2013) (quoting Hampton v. State , 103 So.3d 98, 115 (Fla. 2012) ). Trial courts have broad discretion in determining whether a photograph should come in, Brooks v. State , 787 So.2d 765, 781 (Fla. 2001), and in this case, we find the court acted within that broad discretion.

IV.

Fourth, Bass contends that the trial court was obligated to approve his proposed statement of the evidence. After this appeal began, Bass's appellate counsel heard that sometime during trial—either in front of the jury or in front of the judge during sentencing—the prosecutor called the battery at issue "just another notch in [Bass's] belt." Bass acknowledges this comment is not found in the record, and he asked this court to relinquish jurisdiction so he could attempt to supplement or correct the lower-court's record. We did relinquish jurisdiction, and Bass returned to the trial court, where he filed a statement of the evidence pursuant to Florida Rule of Appellate Procedure 9.200(b)(4). He included an affidavit from a lawyer who had been there and who swore that—to the best of his memory—that the prosecutor did indeed say "just another notch in [Bass's] belt," either during closing arguments or during sentencing. The State did not respond to the statement of evidence or offer any contradictory evidence.

In Bass's view, the State's inability to contradict the affidavit obligated the court to accept it as true: "In light of the fact that Appellant Bass submitted an unrefuted affidavit from an officer of the court confirming that the statement in question was made by the prosecutor, the trial court should have approved the statement of evidence." Init. Br. at 29. But Bass cites no authority to support that assertion, and we cannot accept the argument that a litigant can unilaterally alter the official record of what transpired below by doing nothing beyond offering a statement the other side cannot refute. "If a trial judge is able to approve a unilateral statement, the judge should do so, but the rule does not require it." Rivera v. Rivera , 863 So.2d 489, 490 (Fla. 4th DCA 2004). Trial judges and opposing counsel may or may not remember every word said at trial, but when faced with a proposed statement of evidence that they cannot say accurately reflects what really happened, they are not obligated to accept it. Here, the trial judge concluded he could not "in good conscience find the statement was made." Under these circumstances, the judge did the right thing by refusing to vouch for a statement he could not confirm was ever uttered.

V.

Bass's fifth argument is that the trial court should have granted a judgment of acquittal on the resisting-an-officer charge. We review the trial court's decision de novo. Pagan v. State , 830 So.2d 792, 803 (Fla. 2002).

Section 843.02 provides that it is a crime to "resist, obstruct, or oppose any officer ... in the lawful execution of any legal duty." To support a conviction under this statute, the State must prove: "(1) the officer was engaged in the lawful execution of a legal duty; and (2) the defendant's action, by his words, conduct, or a combination thereof,...