Gibson v. State
| Decision Date | 17 August 2016 |
| Docket Number | No. 4D14–1372.,4D14–1372. |
| Citation | 199 So.3d 1063 |
| Parties | Edward Lewis GIBSON, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Carey Haughwout, Public Defender, and Karen E. Ehrlich, Assistant Public Defender, West Palm Beach, for appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Matthew Steven Ocksrider, Assistant Attorney General, West Palm Beach, for appellee.
TAYLOR
, J.
Edward Lewis Gibson appeals his conviction and sentence for first degree murder with a firearm. He argues that the trial judge erred in depriving him of his constitutional right to testify and in overruling his hearsay objection to the admission of a text message sent from his cell phone. We find no error in admission of the text message, but we reverse and remand for a new trial because the trial court improperly denied appellant's timely request to reopen his case to testify.
Appellant was charged by indictment with the first degree murder of Douglas Frasier, Jr., whose severely decomposed body and detached head with a gunshot wound
were found at an abandoned property. The state's theory was that appellant killed Frasier because he had broken into appellant's home and stolen his Xbox and television. Several witnesses testified at trial that appellant spoke freely about the murder.
At trial, after the state rested, the court advised appellant that he needed to decide whether he would testify. The court explained that if appellant decided to testify, he would have to answer truthfully the questions asked by his attorney and the assistant state attorney. The court also told appellant that if he decided not to testify, the court would instruct the jury not to consider his decision as any evidence of guilt. The court then gave appellant time to consult with his attorneys concerning his decision whether to testify.
When court resumed after a brief recess, the trial judge asked appellant if he had made a decision about testifying. The following exchange occurred:
The jury returned to the courtroom and the defense rested. The court then excused the jurors after informing them that closing arguments and jury instructions would be given the next morning.
The next morning, when court reconvened, appellant's counsel alerted the judge that appellant was “having a change of heart” and wanted to testify. The following exchange occurred:
Soon after the court began reading some preliminary jury instructions, the prosecutor interrupted the court and requested a bench conference on appellant's request to testify. The following exchange occurred:
The jury found appellant guilty as charged, and the court sentenced appellant to life in prison with a mandatory minimum of twenty-five years.
Appellant argues on appeal that the trial court erred in denying his request to reopen the case so that he could testify. We agree.
The decision to reopen a defendant's case lies within the trial judge's discretion and will not be disturbed on appeal absent an abuse of discretion. Donaldson v. State, 722 So.2d 177, 181 (Fla.1998)
(citing Delgado v. State, 573 So.2d 83, 86 (Fla. 2d DCA 1990) ); Covello v. State, 154 So.3d 401, 406 (Fla. 4th DCA 2014) ; Santiago v. State, 21 So.3d 877, 881 (Fla. 4th DCA 2009). In determining whether to permit a party to reopen his case, the court should consider (1) the timeliness of the request, (2) the character of the evidence sought to be introduced, (3) the effect of allowing the evidence to be admitted, and (4) whether the defendant has provided a reasonable explanation to justify reopening his case. Register v. State, 718 So.2d 350, 352 (Fla. 5th DCA 1998) (citing United States v. Walker, 772 F.2d 1172, 1177 (5th Cir.1985) ).
In this case, appellant initially advised the court that he was not going to testify and rested his case before the jury. Overnight, he decided he wanted to testify and requested permission to reopen his case before closing argument and jury instructions. In Steffanos v. State, 80 Fla. 309, 86 So. 204, 205–206 (1920)
, the Florida Supreme Court held that a request to reopen the defendant's case was timely where it was made before closing argument and jury instructions. “Where the case is not technically closed (i.e., counsel have not begun closing argument and the case has not been submit to the jury), the denial of a defendant's motion to reopen the case will be reversed if the motion was timely and a proper showing has been made as to why the evidence was omitted.” Donaldson, 722 So.2d at 181 (citing Steffanos ). Here, appellant's request was timely because it was made before closing argument and jury instructions. The state argues, however, that the trial court's decision not to allow appellant to reopen his case should be affirmed because appellant failed to provide the trial court with a reasonable explanation to justify reopening his case.
Appellate courts have reversed the denial of a defendant's motion to reopen his case where the motion was timely and a proper showing made for the request. For instance, in Jackson v. State, 832 So.2d 885 (Fla. 3d DCA 2002)
, the Third District held that the trial court abused its discretion by not allowing the defendant, who had decided not to testify, to reopen his case. The court noted that the defendant's request was timely because closing arguments had not started and defense counsel made a proper showing as to why the defendant should be permitted to reopen his case to testify. Defense counsel had explained to the trial court that the defendant's initial decision not to testify was based on his desire to prevent the jury from learning of his prior convictions, but after the trial court ruled that the defendant could be impeached with his prior felony convictions pursuant to section 90.806, Florida Statutes, there was no longer a reason for not testifying.
In Jones v. State, 745 So.2d 1121 (Fla. 5th DCA 1999)
, the Fifth District reversed for a new trial where the defendant had twice told the court he would not testify but then changed his mind after he rested before the jury. The court determined that the request was timely and, based on the colloquy between the trial court and the defendant, wherein the defendant expressed his desire to testify in support of his claim of self-defense to the charge of resisting arrest with violence, the court held that the trial court abused its discretion in denying the request to reopen the case.
Here, the state acknowledges that appellant's request to reopen his case to testify was timely, but it urges us to find that the trial court did not abuse its discretion in denying appellant's request because appellant failed to provide any reasons to justify reopening the case or proffer the character of his testimony to demonstrate its need in fairly resolving the case. Appellant counters that he was precluded from doing so because the trial court summarily denied his request without giving him an opportunity to provide an explanation.
Appellant cites Gunn v. State, 643 So.2d 677 (Fla. 4th DCA 1994)
, in arguing that he was denied due process when the trial court improperly cut him off and promptly denied his request without hearing any explanations or argument regarding his request to testify. In Gunn, the trial court denied the defendant's motion to withdraw his plea immediately after defense counsel made the motion, thus eliminating any chance for appellant to even attempt to show a good cause basis for the motion. Id. at 679. We reversed, concluding that, as a matter of fundamental due process, Gunn should have been given the opportunity to present an argument and be heard on his...
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Defendant's statements
...court should have allowed the defendant the opportunity to provide the court with his reasons for making the request. Gibson v. State, 199 So. 3d 1063 (Fla. 4th DCA 2016) DEFENDANT’S STATEMENTS 12.1 The Florida Criminal Cases Notebook 12-8 Defendant’s statement that he had previously “snatc......