Daniels v. State, s. 91-2458
| Decision Date | 15 March 1994 |
| Docket Number | 91-2463 and 91-2500,Nos. 91-2458,s. 91-2458 |
| Citation | 634 So.2d 187 |
| Parties | 19 Fla. L. Weekly D590 Michael DANIELS, et al., Appellants, v. The STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Bennett H. Brummer, Public Defender, and May L. Cain, Sp. Asst. Public Defender, Miami, Geoffrey C. Fleck, South Miami, and Lee Weissenborn, Coral Gables, for appellants.
Robert A. Butterworth, Atty. Gen., and Angelica D. Zayas, Asst. Atty. Gen., for appellee.
Before HUBBART, GERSTEN and GODERICH, JJ.
The defendants, Michael Daniels, Rodney Rogers, and James Cochran, appeal from final judgments of conviction and sentence. We affirm all three convictions and the sentence imposed upon Rogers. But we reverse the sentences imposed upon Daniels and Cochran and remand for a new sentencing hearing.
The police arrested the defendants after entering the apartment where they all were and finding property that had been taken in a prior robbery. The defendants were charged with numerous counts of armed robbery, burglary, false imprisonment, battery, and kidnapping against several victims. Pursuant to a defense motion to sever the charges, the state agreed to drop all charges except those counts which dealt with the armed robberies, burglary, kidnappings, and thefts of property from Romeo and Soledad Zarco on February 12, 1989. The trial court denied Cochran's motion to sever defendants and a defense motion to exclude evidence concerning the other robberies.
Following a hearing on the matter, Judge Leonard E. Glick denied a defense motion to suppress the oral and physical evidence obtained by the state following the defendants' arrests. The case was assigned to Judge Fredricka G. Smith for trial and the defendants and the state agreed to waive trial by jury. Following opening argument, Judge Smith revisited the Williams Rule question and ruled that the evidence pertaining to the Bruening and Watson robberies would be admissible to show identity, but the evidence of the other robberies were not similar enough to warrant admission. Judge Smith advised the defendants that she had heard certain evidence before excluding it from trial. However, all three defendants chose to proceed without a jury.
Kenneth Reed, a friend of Rogers, identified all three defendants and described in detail the events on the night of the Zarco robbery. While giving Reed a ride home, Daniels suggested they rob the Zarco's home. Rogers asked Reed to drive around and wait for everyone. Reed drove everyone back to the apartment. After Reed gave a sworn statement to the police implicating the defendants, he received threatening calls from Daniels and Rogers offered him $500 to get out of town. During cross-examination, Daniels' and Cochran's attorneys attempted to impeach Reed based on the sworn police statement. Rogers' attorney attempted to impeach Reed with his pretrial deposition. During redirect, the state offered Reed's sworn police statement into evidence as a prior consistent statement to rebut the implication of recent fabrication. The state also offered into evidence the recordings of the threatening calls. Cochran did not object. Daniels objected on the ground that the tapes were more prejudicial than probative. Rogers objected because the tapes were so incoherent that the court would have to use the transcripts as evidence, not as an aid to understanding the tapes.
Cochran testified on his own behalf. Cochran stated that he had never met Daniels prior to the evening of his arrest and that the sneakers placed in evidence were not his shoes. During cross-examination, Cochran denied ever seeing a picture of himself with the codefendants. Then the state called Detective Jeffrey Lewis, who presented pictures of all the defendants together.
Following closing argument, the trial court excluded the evidence of the Bruening and Watson robberies. The court found the evidence against the defendants in the Zarco case to be overwhelming and declared the defendants guilty of two counts of armed robbery with a firearm, two counts of armed kidnapping with a firearm, and one count of armed burglary with a firearm.
The trial court declared Cochran a habitual violent felony offender and sentenced him to three consecutive life sentences for armed robbery and burglary (counts 27, 29 and 33), each with a minimum mandatory fifteen year term, and two additional concurrent life sentences for kidnapping (counts 34 and 35).
Rogers was declared a habitual felony offender and sentenced to three consecutive life sentences for armed robbery and burglary (counts 27, 29 and 33). The court also imposed two concurrent life sentences for kidnapping (counts 34 and 35), each to run concurrent with the other sentences imposed. There was no minimum mandatory sentence.
The court declared Daniels a habitual violent felony offender and sentenced him to three consecutive life sentences for armed robbery and burglary (counts 27, 29 and 33). Daniels was also sentenced to two life sentences for kidnapping (counts 34 and 35), each to run concurrent with the life sentence imposed for count 29. A fifteen year minimum mandatory term was imposed for all five counts. The defendants challenge their convictions and sentences on several grounds.
The first issue, which was raised by all three defendants, is whether the trial court erred in allowing the state to introduce evidence of two other collateral and unrelated home invasion robberies and then announcing it would not consider such evidence. The rule, as reiterated in State v. Arroyo, 422 So.2d 50, 51 (Fla. 3d DCA 1982), is that where a trial judge sitting as a fact finder "erroneously admits evidence, he is presumed to have disregarded the evidence, and the error of its admission is deemed harmless." This presumption is overcome only if the record discloses that the trial judge relied upon the erroneous evidence. Id.
In the instant case, the trial judge explained to the defendants that evidence of two of the four robberies referred to during opening statements was inadmissible under Williams v. State, 68 So.2d 583 (Fla.1954) and then she gave the defendants the option of moving for mistrial and having the case heard by a jury or proceeding with her sitting as the trier of fact. The defendants chose to rely on the judge's ability to disregard the inadmissible evidence. Moreover, because the trial judge expressly stated that she was excluding evidence of the non-charged crimes and that the evidence of guilt in the charged crimes was overwhelming without the excluded evidence, the defendants have failed to overcome the presumption that the court's verdict was based solely upon admissible evidence. See Arroyo, 422 So.2d at 51.
The second issue, which was raised by all three defendants, is whether the trial court erred in permitting the state to introduce into evidence Reed's prior statement to the police. Cochran and Rogers contend that the court erred in allowing Reed's statement into evidence because the state failed to lay a proper predicate. However, Rogers only objected arguing that the statement was hearsay and Cochran never raised an objection. Since Rogers and Cochran did not raise a contemporaneous objection specifically challenging the fact that Reed did not authenticate the statement or say whether the statement presented to him was a true and accurate representation of the police statement signed by him when the state offered the statement into evidence, they cannot raise this specific objection on appeal. See State v. Rhoden, 448 So.2d 1013 (Fla.1984); Castor v. State, 365 So.2d 701 (Fla.1978).
With regard to Reed's statement, all three defendants also contend that the trial court erred in admitting the statement into evidence where the statement was improper evidence of a prior consistent statement and hearsay. A witness' testimony may not be corroborated by his own prior consistent statement, except that such statement may become relevant if an attempt is made to show recent fabrication or to rebut a suggestion of improper motive. Jackson v. State, 599 So.2d 103 (Fla.), cert. denied, --- U.S. ----, 113 S.Ct. 612, 121 L.Ed.2d 546 (1992); Van Gallon v. State, 50 So.2d 882 (Fla.1951); Alexander v. State, 603 So.2d 658 (Fla. 3d DCA 1992).
In the instant case, the defendants suggested that Reed was lying to get beneficial treatment from the state. Therefore, the trial court properly allowed the state to introduce Reed's sworn statement into evidence to rebut the defendants' implications of improper influence, motive or recent fabrication.
Rogers and Cochran also contend that the trial court erred by permitting the state to refer to a photograph of them with others as a picture of the "Florida Jack Boys" where this comment evidenced the prosecutor's belief that the defendants belonged to a gang of home invasion robbers. We disagree.
We find that the trial court properly denied the defendants' motions for mistrial following the state's questioning of Cochran regarding a photograph of the defendants labeled "Florida Jack Boys" where the evidence was offered to rebut Cochran's claim that he had not met his codefendants prior to the night of his arrest, not to prove that the defendants were members of a gang of home invasion robbers. The photograph was admissible to prove that Cochran had met the other defendants prior to his arrest. Moreover, since the trial judge expressly stated that there was no evidence that any of the defendants were in a gang or that any of them had been in prison prior to the instant charges, she must have ignored the prosecutor's comment. State v. Arroyo, 422 So.2d 50 (Fla. 3d DCA 1982).
Next, Daniels contends that the trial court erred in failing to sever the trial of Daniels from the trial of the two codefendants where he was prejudiced by...
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