Berube v. State
| Decision Date | 25 February 2009 |
| Docket Number | No. 2D06-5610.,2D06-5610. |
| Citation | 5 So.3d 734 |
| Parties | Leo BERUBE, a/k/a Leo Richard Berube, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James Marion Moorman, Public Defender; Elizabeth C. Ramsey, Special Assistant Public Defender; and Bruce P. Taylor, Assistant Public Defender, Bartow, for Appellant.
Bill McCollum, Attorney General, Tallahassee, and Deborah Fraim Hogge, Assistant Attorney General, Tampa, for Appellee.
Leo Berube appeals his judgment and life sentence for first-degree murder. He argues that the trial court erred when it allowed the State to present improper Williams1 rule testimony at his trial. Mr. Berube also argues that the trial court erred in denying his motion for judgment of acquittal because the State failed to present sufficient evidence of premeditation. We find no merit in Mr. Berube's claim that the trial court erred in denying his motion for judgment of acquittal. However, because the admission of the Williams rule testimony at Mr. Berube's trial constituted harmful error, we reverse his judgment and sentence and remand for a new trial.
Mr. Berube was charged with the murder by strangulation of a forty-two-year-old prostitute. The murder victim and her husband had become addicted to crack cocaine. As a result of their drug addiction, the couple had lost their jobs, their home, and most of their possessions. At the time of the murder, the couple had been living day-to-day in a motel located on U.S. Highway 19 in Pinellas Park for about two months. The couple's only source of income was the victim's earnings from prostitution.
On January 4, 2003, at approximately 3 a.m., someone strangled the victim with a cord from a lamp that hung near the bed in the couple's motel room. Prior to this incident, the victim and her husband had been on a crack cocaine binge since New Years' Day. About one hour before the victim was killed, the couple had exhausted both their funds and their supply of crack cocaine. The victim left the motel room to look for a customer. She encountered Mr. Berube, who had recently left a local bar. The victim solicited Mr. Berube, he accepted, and they returned to the motel room where the husband had remained.
According to the husband's testimony, he customarily concealed himself in the bathroom while his wife entertained her customers. On the occasion that his wife was killed, he hid in the bathroom when he heard the door to the motel room begin to open. Inside the bathroom, the husband amused himself by smoking the cocaine residue from some drug paraphernalia while his wife was with her customer. The husband waited the usual period of time for his wife to complete her business. After some time passed, the husband heard a loud bump or a bang. He waited a few minutes and then shook the bathroom sink, which was a signal to his wife. However, the wife did not respond. A few seconds later the bathroom door handle jiggled. Then the lock "popped open" and the door — which opened into the bathroom — started to open.
The husband braced his foot against the door and swiped with a knife at a man standing on the other side of the door. The man retreated and told the husband, through the closed door, that he had given the victim something and that she was sleeping. The husband responded, "[J]ust get out of here and ... leave us alone." The husband then started to leave the bathroom, but the man on the other side of the door warned him that if he came out he would kill him. After a few minutes, upon hearing the front door of the motel room open and close, the husband left the bathroom and found his wife's naked body sprawled face up on the bed. She had been strangled to death with a lamp cord. The husband did not get a good look at the man on the other side of the bathroom door, and he did not identify Mr. Berube as that person.
The guests in the adjoining motel room also heard the single, loud bang on the wall. The impact that caused the noise had sufficient force to shake or dislodge a mirror on the wall in the adjoining tenants' room. There were three persons in that room, a teenage boy, his mother, and her husband. Despite the lateness of the hour, the boy was awake, playing a video game. He heard the bang, saw the mirror fall,2 and heard a female voice whine and cry, "Help[!]" He opened the door to his motel room and saw a man leaving the victim's room in a hurry. As the man hurried away, he looked at the boy. The boy noted that the man had a goatee and that his shirt was ripped and had blood on it.3 The boy closed the door and went back to bed. The adults in the room both testified that they were awakened by the noise. One of them observed that the victim and her husband were arguing again. Such arguments were a relatively common event, and the couple went back to sleep.
Pinellas Park police initially charged the husband with his wife's murder. Several months later, law enforcement officers received the results of the DNA analyses of a blood smear on the wall above the bed in the motel room, blood found on the bathroom door frame, blood found on a wall lamp (the cord of which was used to strangle the victim), and a sample scraped from the victim's fingernails. None of these four critical DNA samples matched the husband. However, Mr. Berube's DNA was an exact match for the blood found on the wall above the bed, on the bathroom door frame, and on the wall lamp. In addition, although the DNA from the scrapings of the victim's fingernails was not an exact match to Mr. Berube's DNA profile, he could not be excluded as a contributor. The presence of the blood in the motel room was consistent with the laceration or scratch that Mr. Berube sustained to the top of his right hand that night.4
Mr. Berube was also linked to the motel room by a pair of eyeglasses found on the bed near the victim's body. An optician's records confirmed that the eyeglasses had been fabricated for Mr. Berube. Later, during questioning by the police, Mr. Berube would admit his ownership of the eyeglasses. As a result of these developments, the murder charge against the husband was dropped and the police turned the focus of their investigation to Mr. Berube.
Mr. Berube did not take the stand on his own behalf at trial. Therefore, our record concerning his version of the events in question is limited to the statements that he made to police detectives in a videotaped interrogation. A slightly redacted version of the videotape was played for the jury at trial.
During police questioning, Mr. Berube initially vehemently denied ever going to the motel or meeting the victim on the night in question. Instead, he offered a tale about having been attacked by muggers that evening as he was walking down the street near the motel, returning home from a local bar.5 After the detectives revealed to Mr. Berube that his blood and eyeglasses had been found in the room, he changed his story. However, confronted with evidence placing him in the room, his explanations of the events of the evening in question varied widely, never coalescing into a single, coherent narrative.
Mr. Berube finally admitted entering the motel room with the victim for a consensual, paid sexual encounter, but he disputed the husband's version of events. Mr. Berube's initial story was that he entered the room with the victim, received oral sex, paid the victim $40, and then left. He denied that any altercation or argument had occurred and denied the detective's suggestion that perhaps the victim had tried to rob him. He continued to insist that he was injured while being mugged after leaving the victim's room. Later, he altered his story, saying that while he was with the victim, a man came out of the bathroom demanding, "What are you doing with my old lady?" In response to this, Mr. Berube claimed that he simply fled. Still later, Mr. Berube claimed that he responded to a noise coming from the bathroom by demanding to know who was there. He then tied the lamp cord around the victim's wrists "to control her" while he investigated the noise in the bathroom.6 In one version of events, the husband came out, brandishing a knife in his left hand. Again, Mr. Berube claimed that he fled. In a later version, Mr. Berube claimed that the victim yelled to her husband that Mr. Berube had given her $40 but that he had more and that the husband should get it from him. Although initially denying any physical altercation with the husband, Mr. Berube then stated that the husband came at him with a knife. Mr. Berube responded by kicking the husband in the chest or stomach, and the husband retreated to the bathroom. With regard to his broken leg, Mr. Berube finally admitted that he had not been mugged at all and had broken his leg when he tripped while running from the scene.
Throughout the interview, Mr. Berube insisted that he did not remember being cut or scratched, despite incontrovertible evidence that his blood had been found at various locations in the motel room. Mr. Berube also insisted that the victim was alive, awake, yelling, and fully clothed when he left the motel room.7
The State's notice of intent to use similar crime evidence indicated it intended to introduce evidence of three prior incidents. The first incident involved Mr. Berube's former girlfriend, C.C., with whom Mr. Berube had a child. C.C. claimed that Mr. Berube raped her in 1993, five months after they had separated. According to C.C., Mr. Berube tied her arms and legs and stuffed a rag in her mouth while raping her. C.C. reported the incident to the police, but Mr. Berube was never charged with a crime.
The second incident the State sought to introduce into evidence involved the murder of C.D. C.D. had been strangled in her home in August 1994. Mr. Berube was a suspect in that murder....
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