Billie v. State, 3D01-1303.

Decision Date30 July 2003
Docket NumberNo. 3D01-1303.,3D01-1303.
PartiesKirk Douglas BILLIE, Appellant, v. The STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

Bruce Rogow and Beverly A. Pohl, Fort Lauderdale, for Appellant.

Charles J. Crist, Jr., Attorney General, and Michael J. Neimand, Assistant Attorney General; Katherine Fernandez Rundle, State Attorney, and Christine E. Zahralban, Assistant State Attorney, for Appellee.

Before COPE, LEVY, and RAMIREZ, JJ.

Rehearing and Rehearing En Banc Denied January 16, 2004.

PER CURIAM.

Kirk Douglas Billie ("Billie"), a Miccosukee Indian, appeals from two Second Degree Murder convictions, alleging that several evidentiary errors during the trial denied him a fair trial. We agree with Billie and, accordingly, reverse and remand for a new trial.

Billie was charged with two counts of First Degree Murder for the drowning deaths of two of his children, Kurt and Keith Billie. At trial, the jury was presented with evidence that Billie intentionally drove his ex-girlfriend, Sheila Tiger's ("Ms.Tiger"), Chevy Tahoe into a canal while two of their children slept in the backseat. The only dispute at trial concerned Billie's knowledge of the children's presence in the car at the time he drove the car into the canal.

The trial testimony revealed that Ms. Tiger had a habit of driving around the reservation late at night and either leaving the children with her mother, Marie Jim, or taking them with her in the car and letting the children sleep in the backseat. On the evening of the drownings, Ms. Tiger was driving around the reservation with her cousin, Melody Osceola ("Ms.Osceola"), in the passenger seat, the two victims in the backseat sleeping, and the victims' younger sister in the front on Ms. Osceola's lap.

At some point during the night, Billie called Ms. Tiger to inquire about the children's whereabouts and was told that they were with their grandmother, Marie Jim. The testimony discloses that, at approximately one o'clock in the morning, Ms. Tiger went to visit her boyfriend and left Ms. Osceola with the vehicle and the children. Billie subsequently saw the vehicle and followed it to a residence. When Billie approached the vehicle, Ms. Osceola was out of the vehicle, on the passenger side, holding Billie's and Ms. Tiger's youngest child. Billie inquired about Ms. Tiger and was told that her whereabouts were unknown. He then took the vehicle and drove it to a canal where he released it to sink. His two children were in the backseat of the vehicle at the time. As a result, Billie was charged with, among other things, two counts of First Degree Murder.

The State focused its case on the theory that Billie knew the children were in the vehicle when he released it into the canal. To this end, the State offered the testimony of, among others, Sheila Tiger and Captain Pamela Parker ("Captain Parker"). Ms. Tiger testified that while Billie was in the holding cell, she asked him where the truck was. She testified that he was unresponsive, simply asking her why she was running from him. She testified that she subsequently asked him whether he saw the kids back there and he said "yeah." On cross, Ms. Tiger explained that Billie did not show any emotions in his response to her inquiry about the children but, that when he was later told that the children were in the vehicle, he got emotional and cooperated with the investigators to locate the vehicle.

Captain Parker was part of the air rescue team that arrived at the scene to locate the vehicle. Her contact with Billie came during the search and recovery of the vehicle. She testified that when she asked Billie whether he drove the vehicle into the canal with the children he responded: "that's why you're here.... I had an argument with my wife, I made a threat, and I carried it out."

Billie offered his own evidence and testimony to defend his theory of the case, that he did not know the children were in the vehicle when he released it into the canal.

Billie raises three issues on appeal. First, he challenges the admission at trial of Williams1 Rule testimony. Second, he challenges the admissibility of the expert testimony of the Assistant Medical Examiner to the extent she testified that the type of injuries the victims suffered were of such a nature so as to have awakened them from their sleep. Billie's final issue on appeal challenges the jury view of the crime scene, specifically the vehicle, to the extent that the jury was exposed to several alternative versions of the view. We agree with Billie that some of the Williams Rule evidence was improperly admitted. However, we affirm the trial court's rulings relating to the Medical Examiner's testimony and the alternative views of the lighting inside the vehicle.

I. THE WILLIAMS RULE ISSUE

Prior to trial, the State filed four Notices of Intent to Rely on Williams Rule evidence, contending that the evidence was admissible to show Billie's motive, intent, premeditation, absence of mistake and/or accident, and to dispute Billie's position that he did not know the children were in the backseat. With the first and second Notices of Intent to Rely on Other Crimes, Wrongs, or Acts, the State sought to introduce evidence of Billie's violent tendencies toward Ms. Tiger, including previous threats "to injure or kill," previous instances of hitting, slapping, and kicking Ms. Tiger, an aggravated battery with a broomstick while Ms. Tiger was pregnant, and threats and/or takings of Ms. Tiger's vehicle without her consent. The first Notice also refers to a threat to one of the victims in November of 1994. The third Notice of Intent to Rely on Williams Rule evidence concerns Billie's threats in 1994 and/or 1995 to kill himself and the children he fathered with his ex-wife, Mary Jane, because he was not permitted to see the children. The fourth Notice of Intent to Rely on Williams Rule evidence concerns Billie's comment that Marie Jim, Ms. Tiger's mother, "got what she deserv[ed]" when he beat her after she was awarded custody of his children by the Child Protection Team.

Despite Billie's objections that the information sought to be introduced was irrelevant and/or intended only to establish his propensity for violence and bad character in complete disregard of the Williams Rule criteria and Section 90.404(2), Florida Statutes, the trial court permitted introduction of all of the evidence. Consequently, at trial, the State presented testimony from Ms. Tiger and Rebecca Smith ("Ms.Smith"), a past girlfriend of Billie, regarding the collateral Williams Rule evidence, and introduced additional collateral evidence in response to Billie's testimony.

Ms. Tiger testified that Billie was abusive and violent toward her when he drank. She testified about several specific incidents of abuse, including a time when she was pregnant with the couple's third child and Billie hit her on the stomach repeatedly in front of the children. She also described an incident in November of 1994 where Billie held a hammer over the head of one of the victims, who was sleeping at the time ("hammer incident"). Ms. Tiger admitted that she was scared and that she put herself between the child and the hammer. On cross-examination, Ms. Tiger explained that Billie previously asked her not to take or leave the children with her mother, Marie Jim, because Marie Jim's boyfriend had previously pointed a gun at the children and Ms. Tiger. Ms Tiger explained that Billie's actions were intended to demonstrate how he felt when she left the children at Marie Jim's house with Marie Jim's boyfriend.

Ms. Smith testified that Ms. Tiger told her about the "hammer incident" and that when she confronted Billie about the incident he did not deny that it occurred. She testified that Ms. Tiger probably told her about the incident because Ms. Smith and Billie were seeing each other at the time. Ms. Smith also testified that when Billie was not permitted to see the children that he fathered with his ex-wife, Mary Jane, he told her that if he was not permitted to see the children, he would kill them and himself. During cross-examination, Ms. Smith testified that she did not believe that Billie would act on his thoughts, and that Billie spent a lot of time with his children and treated them kindly.

During Billie's testimony, defense counsel elicited testimony relating to Billie's relationship with his children, more specifically, the victims. Billie testified that he saw his children regularly and that he taught them about the Indian culture. In response, on cross-examination, the State elicited testimony from Billie relating to his abusive relationship with his ex-wife, Mary Jane, and elicited testimony that he previously slapped and threatened the child he fathered with Mary Jane. The State argued, and the trial court agreed, that Billie opened the door to this line of impeachment by suggesting that he was a good father.

After a thorough review of the trial transcript, including closing arguments, the Record on appeal, and relevant case law, we find that the evidence admitted as Williams Rule evidence, with the exception of the testimony relating to the "hammer incident," was improperly admitted.

The test for admissibility of evidence of prior bad acts or other crimes is relevance. See § 90.404(2)(a), Fla. Stat. (1997). However, relevant evidence may be inadmissible where its probative value "is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence" and where the evidence is submitted to show a defendant's propensity toward commission of the offense or to show a defendant's bad character, with nothing more. See § 90.403, Fla. Stat. (1997); see also Hebel v. State, 765 So.2d 143 (Fla. 2d DCA 2000)

; Williams v. State, 621 So.2d 413, 414 (Fla.1993); Bryan v. State, 533 So.2d 744 (Fla.19...

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