CARBONELL v. The State of Fla.

• Decision Date: 17 November 2010
• Docket Number: No. 3D09-1580.,3D09-1580.
• Citation: 47 So.3d 944
• Parties: Jesus CARBONELL, Appellants, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

47 So.3d 944

Jesus CARBONELL, Appellants,

v.The STATE of Florida, Appellee.

No. 3D09-1580.

District Court of Appeal of Florida,Third District.

Nov. 17, 2010.

Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.

Bill McCollum, Attorney General, and Heidi Milan Caballero, Assistant Attorney General, for appellee.

Before RAMIREZ, C.J., and SUAREZ and ROTHENBERG, JJ.

RAMIREZ, C.J.

Jesus Carbonell appeals the trial court's final judgment of conviction and sentence. We reverse and remand for a new trial because the trial court erred in allowing the State to introduce an uncharged robbery that took place earlier in the day when the State was unable to show that the uncharged robbery was similar enough to the charged robbery to establish relevance.

Carbonell was charged with burglary with an assault and strong armed robbery. His defense at trial was misidentification. The facts, taken in the light most favorable to the State, indicate that early in the evening on November 8, 2006, I.G. went to a Shell gas station to purchase a lottery ticket. After she bought the ticket, I.G. went to the parking lot and got in her car. A young male opened the car door, and yanked and grabbed her chain from her neck. The robber asked I.G. for her purse and after he looked into the purse, he threw it back at her. The robber then fled the scene in a pick-up truck. I.G. went back into the gas station and called the police.

A few days later, the police went to I.G.'s house and showed her a photo lineup. She was unable to identify Carbonell as the robber. The following day, the police returned and this time, I.G. identified Carbonell as someone who looked like the robber. At a deposition, I.G. indicated that she was seventy percent positive that Carbonell was the robber. At trial, she positively identified Carbonell as the robber.

Before trial, the State filed a motion to be allowed to introduce Williams Rule evidence from a woman who claimed that Carbonell had committed a strong armed robbery against her on the same day as the crime in this case. Over the objection of counsel, the trial court allowed the State to introduce the testimony of M.G. M.G. testified that on November 8, 2006, she was walking to the Metro Rail Station on US1 and 27th Avenue at approximately 8:45 a.m. when she saw a Ford pick-up truck approach and stop next to her. According to M.G., there was a man and a woman in the truck. After the truck stopped, a man jumped out of the truck and grabbed her chain and purse. The robber then got back into the truck and left. M.G. identified Carbonell in a photo lineup and in court as the person who committed the robbery.

Thereafter, during trial, the judge suppressed a statement given by Carbonell to the police where Carbonell told the police he had a drug problem, he did not remember stealing the victim's purse, and he would not have used the family car to commit a crime. The trial court suppressed the statement based on the fact that the police took the statement after Carbonell had been appointed counsel.

During closing argument, the prosecutor argued the following:

I wish I could give you, you know, a full confession. I wish I could give you a videotape of the robbery. I wish I could make it that easy for you. It's not going to be that easy.

The jury subsequently found Carbonell guilty as charged. The trial court sentenced him to twenty-five years as a prison releasee re-offender as to one count and a violent habitual offender as to the second count. The trial court ordered the sentences to run concurrent with each other.

[1] On appeal, we conclude that the trial judge erred in allowing the State to introduce the uncharged robbery that took place earlier in the day because the State was unable to show that the uncharged robbery was similar enough to the charged robbery to establish relevance. The law in Florida and a comparison of the facts in the charged burglary and robbery with the facts in the uncharged robbery establish that the two crimes were not similar enough to justify their admission in this case. The Florida Supreme Court addressed the standard for admission of collateral crime evidence in Williams v. State, 110 So.2d 654 (Fla.1959). The Williams Court stated, “[o]ur view of the proper rule simply is that relevant evidence will not be excluded merely because it relates to similar facts which point to the commission of a separate crime. The test of admissibility is relevancy.” Id. at 659. Section 90.404(2)(a), Florida Statutes (2005), codified this rule, which provides:

Similar fact evidence ... is admissible when relevant to prove a material fact in issue, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, but it is inadmissible when the evidence is relevant solely to prove bad character or propensity.

[2] [3] Thus, to be allowed to introduce evidence of another crime, the State must establish that the uncharged crime is relevant to some issue that is in dispute and is not being introduced to establish propensity to commit a crime. Chambers v. State, 742 So.2d 839, 840 (Fla. 3d DCA 1999). Before admitting Williams Rule evidence, the trial court must make four determinations: whether there is sufficient evidence that the defendant committed the uncharged crime; whether the evidence in the uncharged crime meets the similarity requirement necessary to be relevant; whether the uncharged crime is too remote, so as to diminish its relevance; and whether the prejudicial effect of the uncharged crime substantially outweighs its probative value. Robertson v. State, 829 So.2d 901, 907-08 (Fla.2002). Moreover, to meet the similarity requirement, the Williams Rule evidence must bear a striking similarity to the charged offense and must share with the charged offense unique characteristics that give the Williams Rule evidence probative value with respect to the charged offense. Heuring v. State, 513 So.2d 122, 124 (Fla.1987) (“The charged and collateral...