Evans v. State, No. 96-726

CourtCourt of Appeal of Florida (US)
Writing for the CourtSORONDO
Parties22 Fla. L. Weekly D1267, 22 Fla. L. Weekly D1441 Walter Lee EVANS, Appellant, v. The STATE of Florida, Appellee.
Docket NumberNo. 96-726
Decision Date21 May 1997

Page 1096

693 So.2d 1096
22 Fla. L. Weekly D1267, 22 Fla. L. Weekly D1441
Walter Lee EVANS, Appellant,
v.
The STATE of Florida, Appellee.
No. 96-726.
District Court of Appeal of Florida,
Third District.
May 21, 1997.

Page 1097

Bennett H. Brummer, Public Defender and Marti Rothenberg, Assistant Public Defender, for appellant.

Robert A. Butterworth, Attorney General and Sandra S. Jaggard, Assistant Attorney General, for appellee.

Before JORGENSON, FLETCHER and SORONDO, JJ.

SORONDO, Judge.

Walter Lee Evans, the defendant, appeals his convictions and sentences for the crimes of first degree murder and aggravated child abuse.

Our analysis begins with a recitation of the facts which led to the tragic and torturous death of 4 year old Tommie Bush, Jr. On October 28, 1993, Tommie urinated in his clothing because the defendant was using the only available toilet in the house. When the defendant exited the bathroom and discovered that the boy had soiled himself he beat him. Three days later, on October 31, the defendant again beat the boy with a belt, a shoe and his hands when he was told by a relative that Tommie had threatened to tell his natural father about the beatings. Later that evening Tommie went "trick or treating" with his sisters. Upon their return to the house the defendant again beat Tommie.

On November 2, one of Tommie's sisters awoke and discovered that Tommie had vomited. She helped him clean up and went to school. At approximately 10:30 a.m. the defendant tried to wake Tommie but the boy would not awaken. During this process Tommie began to cough up blood and shortly thereafter stopped breathing. The defendant tried to resuscitate the boy while a friend called fire rescue.

Tommie died before the paramedics arrived. His jaw was deformed and discolored, his ribs and chest were discolored and his abdomen was fully distended and rigid. He had scratches on the back of his head and on his right arm. Before moving the body the police called a forensic pathologist to the scene. The doctor concluded that the injuries were consistent with a beating.

After clearing the scene, a homicide detective transported the defendant and other members of the household to the police station. At the station the defendant was read his rights, which he waived. During the interrogation that followed the defendant admitted striking Tommie on the back during the week before he died. He also acknowledged the October 28 and October 31 beatings, and noted that Tommie had been vomiting dark colored substances for 2 days prior to his death and had complained of a stomachache on Halloween. The defendant further stated that he had beaten Tommie 2 times per week during the year before his death and that Tommie's mother had warned him not to hit the boy so hard on several

Page 1098

occasions. After this statement the defendant was allowed to return home.

The medical examiner performed an autopsy on Tommie's body. The external examination revealed that he had contusions on his head above the bridge of the nose, on the left forehead, around the right eye, and across the bridge of the nose and both jaws. Both lips were split and there was an abrasion on the back of his head. There were 2 bruises on his chest (both inconsistent with CPR), both arms were bruised and scratched and his buttocks and legs were scarred by injuries which were consistent with being hit with the edge of the buckle of the defendant's belt. Additionally, Tommie had 4 bruises in his right groin and a scratch in the left groin. He had an old scar on his back and extensive bruising. The sides of his abdomen and chest were also bruised. All but one of the injuries were consistent with having occurred within the last few days of Tommie's life. The injuries were consistent with beatings and inconsistent with an accident.

The internal examination revealed bruising to the brain. Eight of his ribs were fractured and there was an old fracture to another rib. The new fractures were consistent with a blow to the back. Tommie's spleen was bruised and his liver was ruptured. The liver injury, the cause of his death, was consistent with being caused by blunt force trauma to his back occurring no more than 24 hours before death.

After receiving the autopsy report, the lead detective re-initiated contact with the defendant. He asked for and received the belt with which the defendant had beaten Tommie. The defendant then accompanied the detective back to the police station and, after being re-advised of his rights, detailed the viciousness of the October 28 beating. At that time the defendant was placed under arrest for the murder of Tommie Bush.

Evans was charged with first degree premeditated and/or felony murder while engaged in aggravated child abuse between October 27 and November 3, 1993, and aggravated child abuse by committing an aggravated battery or maliciously punishing Tommie between October 23 and November 3, 1993. Before trial, the State filed a notice of intent to rely on evidence of other crimes, seeking to introduce evidence that Evans: 1) nearly drowned Tommie, either recklessly or intentionally, on August 22, 1993, and 2) beat Tommie on numerous occasions during the year prior to his death.

Evans filed objections, contending that the drowning incident was not sufficiently similar and was irrelevant and that the beating allegation was not sufficiently pled. The State filed another notice of intent to rely on evidence of other crimes, alleging that between November 1, 1992 and November 2, 1993, Evans committed child abuse and/or aggravated child abuse on Tommie. At the hearing on the issue of collateral crimes, the trial court ruled the evidence was admissible to establish criminal intent and absence of mistake or accident.

The State presented 3 witnesses to testify about the near-drowning incident: Rachelle Warlick, a nurse at Parkway Regional Medical Center, testified that Evans told her he was trying to teach Tommie to swim by dunking him up and down in the water, that Tommie kept swallowing water, and that Tommie "was going to do it until he got it right." Officer Edward Vandamas, who responded to the near-drowning incident August 22, 1993, testified that he spoke with a man named Walter Evans who told him that he had his son in the pool, he was teaching him how to hold his breath underwater, he was picking the child up and dunking him in the water, and he was holding him there for a lengthy time. Dorothy Whitby, a 9-year-old relative of Evans who lived in the same apartment as Evans and Tommie, testified that it did not look like Evans was teaching Tommie to swim, but that it looked like Evans "was being mean."

Two of the State's witnesses testified about the crime charged in the indictment. One of them, Detective Chris Dangler, testified that Evans said he hit Tommie 15-25 times in the past year.

After the State rested, Evans moved for judgment of acquittal on both counts. The State conceded that it had not proved premeditated murder. The court granted the

Page 1099

motion as to premeditated first degree murder, allowing the case to go forward only on the felony murder theory, but denied the motion in all other regards.

Evans presented the testimony of several witnesses. Helen Brown and Michelle Polk, relatives who lived in the apartment with Evans and Tommie, described how Evans tried to revive Tommie with CPR and cried after he learned Tommie had died. Michelle Polk, Tommie's neighbors Shamis and Angriss Grant, and Tommie's sister Tomika described how Tommie had been knocked down and hurt in his chest by some big boys playing football the week before Tommie's death. Evans also presented the testimony of Dr. John Marraccini, a medical examiner consultant, who testified the injuries were consistent with Tommie falling out of the top bunk bed onto a hard object and consistent with a bigger, older child jumping on top of Tommie and that there were numerous ways in which this type of injury could occur. On cross-examination, Dr. Marraccini agreed that some of Tommie's injuries were the result of aggravated child abuse. He further stated that the injuries appeared to be intentional and not accidental. Finally, he conceded that the injuries did not result from a fall off the bunk bed or during a football game.

During its initial closing, the State commented on the near-drowning incident and on Evans' confession to the year-long beatings. During the jury instructions, the trial court instructed the jury on the appropriate use of collateral crimes evidence. Evans did not object to the instructions. After the jury retired to deliberate, Evans moved for a mistrial, claiming that the collateral crimes evidence became a feature of the State's closing arguments. The trial court denied the motion, finding that the collateral crimes evidence was only 1 of 9 subjects discussed in the State's argument and was not a feature.

The jury returned verdicts of guilty as charged on both counts, and the judge adjudicated Evans guilty in accordance with the verdicts. The State requested an upward departure sentence to the statutory...

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11 practice notes
  • Billie v. State, No. 3D01-1303.
    • United States
    • Court of Appeal of Florida (US)
    • July 30, 2003
    ...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.1988); Evans v. State, 693 So.2d 1096 (Fla. 3d DCA 1997). Section 90.404(2)(a), Florida Statutes, which codified Williams v. State, 110 So.2d 654 (Fla.1959), Similar fact evide......
  • Washington v. State, No. 97-4538.
    • United States
    • Court of Appeal of Florida (US)
    • July 27, 1999
    ...threatened to turn in defendant if he cut off victim's drug supply); Finney v. State, 660 So.2d 674, 681-82 (Fla.1995); Evans v. State, 693 So.2d 1096, 1101 (Fla. 3d DCA 1997). Evidence of collateral crimes, wrongs, or acts committed by a suspect other than the accused has come to be known ......
  • Cardona v. State, No. 3D17-2767
    • United States
    • Court of Appeal of Florida (US)
    • January 15, 2020
    ...reference to prior injuries to the child should be permitted to establish intent and absence of mistake or accident." Evans v. State, 693 So. 2d 1096, 1102 (Fla. 3d DCA 1997) (citing 299 So.3d 1146 State v. Everette, 532 So. 2d 1124 (Fla. 3d DCA 1988) ; Mayberry v. State, 430 So. 2d 908 (Fl......
  • Lowery v. State, No. 1D17-3716
    • United States
    • Court of Appeal of Florida (US)
    • June 20, 2019
    ...Thus, the incidents were admissible to prove absence of accident, intent, identity, and opportunity. Id. at 583-84. In Evans v. State, 693 So. 2d 1096, 1102 (Fla. 3d DCA 1997), the Third District broadly concluded that "where the state seeks to present evidence of prior physical abuse commi......
  • Request a trial to view additional results
11 cases
  • Billie v. State, No. 3D01-1303.
    • United States
    • Court of Appeal of Florida (US)
    • July 30, 2003
    ...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.1988); Evans v. State, 693 So.2d 1096 (Fla. 3d DCA 1997). Section 90.404(2)(a), Florida Statutes, which codified Williams v. State, 110 So.2d 654 (Fla.1959), Similar fact evide......
  • Washington v. State, No. 97-4538.
    • United States
    • Court of Appeal of Florida (US)
    • July 27, 1999
    ...threatened to turn in defendant if he cut off victim's drug supply); Finney v. State, 660 So.2d 674, 681-82 (Fla.1995); Evans v. State, 693 So.2d 1096, 1101 (Fla. 3d DCA 1997). Evidence of collateral crimes, wrongs, or acts committed by a suspect other than the accused has come to be known ......
  • Cardona v. State, No. 3D17-2767
    • United States
    • Court of Appeal of Florida (US)
    • January 15, 2020
    ...reference to prior injuries to the child should be permitted to establish intent and absence of mistake or accident." Evans v. State, 693 So. 2d 1096, 1102 (Fla. 3d DCA 1997) (citing 299 So.3d 1146 State v. Everette, 532 So. 2d 1124 (Fla. 3d DCA 1988) ; Mayberry v. State, 430 So. 2d 908 (Fl......
  • Lowery v. State, No. 1D17-3716
    • United States
    • Court of Appeal of Florida (US)
    • June 20, 2019
    ...Thus, the incidents were admissible to prove absence of accident, intent, identity, and opportunity. Id. at 583-84. In Evans v. State, 693 So. 2d 1096, 1102 (Fla. 3d DCA 1997), the Third District broadly concluded that "where the state seeks to present evidence of prior physical abuse commi......
  • Request a trial to view additional results

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