Childers v. State

• Decision Date: 02 February 2006
• Docket Number: No. 1D03-2154.,1D03-2154.
• Citation: Childers v. State, 936 So.2d 585 (Fla. App. 2006)
• Parties: Wyon Dale CHILDERS, Appellant/Cross-Appellee, v. STATE of Florida, Appellee/Cross-Appellant.
• Court: Florida District Court of Appeals

Page 585

936 So.2d 585

Wyon Dale CHILDERS, Appellant/Cross-Appellee, v. STATE of Florida, Appellee/Cross-Appellant.

No. 1D03-2154.

District Court of Appeal of Florida, First District.

February 2, 2006.

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Richard G. Lubin and Tama Beth Kudman, of Richard G. Lubin, P.A., West Palm Beach, for Appellant/Cross-Appellee.

Charlie J. Crist, Jr. Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Appellee/Cross-Appellant.

EN BANC

PER CURIAM.

Wyon Dale Childers appeals his convictions for bribery and unlawful compensation or reward for official behavior. The convictions at issue here arose from the Escambia County Commission's purchase of property known as the "Elliot Property" or the Pensacola Soccer Complex. Appellant and Willie Junior were county commissioners who voted for the purchase, and Joe Elliot was the owner of the property. The State alleged that Appellant made a series of payments to Junior in return for Junior's vote to acquire the property and that Appellant and Junior voted to purchase the property to receive kickback payments from Elliot. Junior became a state witness against Elliot and Appellant, after the State and Junior entered into a plea agreement in exchange for Junior's truthful testimony.

Appellant challenges the trial court's rulings excluding the admissibility at trial of the State's attempt to revoke a plea agreement with Willie Junior, a key witness who testified at length against Appellant; the jury verdict acquitting Elliot; and the State's original indictment filed against Appellant. The State cross-appeals the trial court's rulings which excluded evidence that Appellant participated in another attempt to obtain county funding for a land purchase and which declined to order Appellant to pay restitution to Escambia County for losses incurred after selling the soccer complex. Concerning the issues raised on appeal, we conclude that, although the trial court erred in its conclusion that the State's attempt to revoke Willie Junior's plea agreement was irrelevant, the evidence was properly excluded under section 90.403, Florida Statutes (2002), because the limited probative value of this evidence was substantially outweighed by the danger of unfair prejudice. We therefore affirm the trial court's ruling under the so-called "tipsy coachman" rule. In addition, we affirm the trial court's rulings excluding the Elliot verdict and any evidence regarding the State's original indictment of Appellant. We reverse the restitution issue raised in the State's cross-appeal and decline to address the evidentiary issue raised on cross-appeal.¹

I. Background

A grand jury initially returned an indictment against Appellant charging him with one count each of money laundering, bribery, and unlawful compensation or reward for official behavior. At the time of the alleged unlawful activity, both Appellant and Junior served as Escambia County Commissioners. The State alleged that Appellant made a series of payments to Junior in return for Junior's vote in favor of acquiring the Pensacola Soccer Complex. According to the State, Appellant and Junior stood to receive kickbacks from the owner of the soccer complex, Joe Elliot, upon the County's purchase of the property. Elliot, Appellant, Junior, and others faced charges as a result of these allegations.

Several months before either Elliot or Appellant went to trial, Junior entered into a plea agreement with the State. Under the terms of his plea agreement with the State, Willie Junior pled nolo contendere to numerous charges, including bribery, and agreed to testify truthfully and completely regarding Elliot and Appellant's involvement in the commission's purchase of the soccer complex. In exchange, the State agreed that if Junior complied with the plea terms, it would "recommend a sentence no greater than eighteen months state prison," rather than the approximately 125 year maximum sentence. The State reserved the right to make a sentencing recommendation based on its determination that Junior had "provided substantial assistance in the investigation or prosecution of other persons who have committed offenses." The agreement vested the state attorney with "sole discretion" in determining whether Junior had provided this assistance.

Junior fulfilled his obligation to testify against Elliot in his December 2002 trial. During that trial, the defense attacked Junior's credibility. The jury ultimately acquitted Elliot of charges flowing from the soccer complex transaction. After the Elliot acquittal, in January 2003 Junior met with a State investigator and provided new information regarding Appellant's involvement in the alleged bribery scheme which differed substantially from certain information provided by Junior in previous statements. The primary matters about which Junior's January 2003 statements differed from prior statements concerned a note upon which Appellant had written "100/100;" Appellant's presentation of a cooking pot filled with money to Junior; and Appellant's statement indicating that he was "sick and tired of not being able to get three votes." Junior's revised statements regarding each of these events included new details tending to more fully show culpability on Appellant's part. Initially, Junior maintained that Appellant had written "100/100" on a notepad and passed it to Junior. According to Junior's earlier statements, Appellant had made no statements regarding the meaning of the note, but Junior took it to mean that they would each receive $100,000 if the soccer complex deal went through. In the January 2003 statements, Junior claimed for the first time that the passing of the note was accompanied by Appellant's direct statement that "if the soccer complex goes through, it will be a hundred for you and a hundred for me." Additionally, Junior changed his story as to when the 100/100 note incident took place. Before his January statements, Junior maintained that the incident occurred after the commission voted to appraise the soccer complex property but before it voted to purchase it. In the revised statement, Junior said that Appellant gave him the note before the appraisal vote. He also added that Appellant stated, some time after the 100/100 note incident, that he was going to send Elliot to see Junior.

Similarly, Junior's January 2003 statements supplied previously absent commentary describing an incident where Appellant allegedly gave Junior a large cooking pot filled with money. In past statements, Junior had maintained that Appellant tendered a money-filled pot without speaking a word. In the January 2003 statement, however, Junior recalled that Appellant mentioned that he took $25,000 out of the pot. Later, Junior added further to his description by stating that Appellant told him that he took the $25,000, as well as another $10,000, from the pot.

In January 2003, Junior also recalled Appellant's alleged lamentation that he was "sick and tired of not being able to get three votes" (on the five-member commission). Apparently, Junior did not recall Appellant making such a statement until his meetings with the state investigator in January 2003. During the January meetings, Junior stated that Appellant had made this statement as early as May 2001. When asked more about this newly added detail, Junior recalled that Appellant made the statement at the time he passed Junior the 100/100 note.

After Junior provided this new information, the state attorney filed a "Notice of Revocation of Terms of Plea Agreement" in Junior's criminal case. The State asserted that Junior had failed to comply with the agreement by changing his testimony, failing to earlier give complete statements, and other allegations. The State asserted that

Mr. Junior has failed to disclose, in a timely manner, relevant, crucial and material information needed by the State of Florida in preparation of its cases, and thus, has provided inconsistent statements as to key events. Such failures and/or inconsistencies have resulted in damage to the State of Florida's prosecution of various defendants.

The State concluded by announcing its revocation of Junior's plea agreement.

Notwithstanding the state attorney's apparent plenary power to revoke the plea agreement under its terms, the trial court granted a hearing at which Junior's counsel argued that Junior had substantially complied with the terms of the agreement. The trial court agreed with Junior, ruling:

According to the terms of the plea agreement, the defendant [Junior] was required to testify truthfully; however, there is no evidence in the record ... that Mr. Junior was to testify truthfully to. Said in another way, there is nothing in the plea agreement that Mr. Junior must testify truthfully in a certain way so as to be clear as exactly what benefit the State expects to receive. Further, the written plea agreement states that Mr. Junior was to testify truthfully and completely, a subjective test at best. The statements he made on January 17th and 31st with State Attorney investigators, even if materially different from other statements and information previously given, were not under oath at a trial or hearing, and it does not indicate anything other than his willingness to assist the state in accordance with the plea agreement. Finally, the state . . . acquiesced that Mr. Junior had consistently maintained and testified to certain material evidence. In conclusion the Court [finds] that there has been substantial compliance with the written plea agreement, and for that reason, the State is without basis, at this time, to revoke it.

Following the trial court's ruling, the State replaced the original indictment against Appellant with an information that was later amended. The new information against Appellant included the additional information provided by Junior.

Appellant then filed a notice indicating his intention to introduce as...