Masaka v. State

• Decision Date: 01 April 2009
• Docket Number: No. 2D07-3951.,2D07-3951.
• Citation: 4 So.3d 1274
• Parties: Oreneile MASAKA, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

4 So.3d 1274

Oreneile MASAKA, Appellant, v. STATE of Florida, Appellee.

No. 2D07-3951.

District Court of Appeal of Florida, Second District.

April 1, 2009.

James Marion Moorman, Public Defender, and Clayton R. Kaeiser, Special Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Ha Thu Dao, Assistant Attorney General, Tampa, for Appellee.

VILLANTI, Judge.

Oreneile Masaka appeals his convictions for attempted voluntary manslaughter and attempted robbery with a firearm, raising two issues for review. Because the trial court erred by excluding admissible evidence that was relevant to Masaka's defense, we reverse and remand for a new trial. And to avoid error in the new trial, we also explain why, under the facts below, the trial court erred by giving the principals instruction.

Facts

Masaka was charged with attempted voluntary manslaughter and attempted robbery with a firearm after a cab driver was shot in Tampa. The facts presented at trial showed that Masaka and his cousin, Andrew Panzo, found them-selves on the far end of town from their residence after the city buses had stopped running. They decided to flag down a cab and get a ride to their apartment complex. Having limited funds on hand, their plan was to flee from the cab at the end of the trip without paying the fare.

According to the cab driver, Jerome Loy, he picked up two men at a convenience store. Both men got in the back seat. The man who sat in the seat directly behind Loy talked to him during the trip about the upcoming Bucs' season. The other man, who sat behind the passenger seat, did not say a word during the entire trip. In addition, the man who sat behind Loy appeared to be the bigger or taller of the two men.

Loy testified that when they arrived at the apartment complex, the man who had been sitting behind him and talking to him got out of the cab and walked off. Loy turned to the man sitting on the passenger side to tell him the amount of the fare, and that man held up a gun and told Loy to "give it up." Loy reached down and got his money and started to turn back around when the man shot him. Loy then hit the gas and ran into an electric utility box in an effort to scare the man out of the cab. When he did so, the gun went off again. After the cab hit the utility box, the shooter got out of the back seat on the driver's side and ran off, leaving his shoes behind. Loy could not identify either of the passengers.

A witness to a portion of the incident testified that the shooter got out of the cab holding a small caliber chrome gun. This same witness rushed to the cab, where he discovered Loy with a "hand full of money." The police subsequently recovered a .25 caliber bullet from the scene. The police developed Masaka and Panzo as suspects, and Masaka was arrested later that evening.

Panzo was interviewed by Detective Bryan Custer several days after the shooting. During that interview, Panzo told Detective Custer that he had had a chrome .25 caliber gun in his pocket earlier in the day and was telling people, "I'm fixin' to rob somebody." Panzo also told Detective Custer that he had possession of the gun used in the shooting after the incident and that he sold it to a stranger two days later. Panzo admitted to changing clothes immediately after the shooting because he knew the police would be looking for the shooter. However, he asserted that Masaka was the shooter and that he (Panzo) was the one who had fled from the cab before the shooting occurred. He also told Detective Custer that he did not talk to the cab driver at any time during the ride because that would have blown Masaka's cover. Despite these statements, Panzo was never charged with any crimes relating to the shooting of Loy.

Masaka's defense at trial was misidentification. He contended that he was the one who fled from the cab before the shooting and that Panzo was the actual shooter. In support of this defense, Masaka introduced evidence that he was the taller of the two men. He also sought to introduce the portions of Panzo's post-Miranda statement to Detective Custer in which Panzo admitted to possessing the gun used in the shooting, admitted to changing clothes after the shooting, and admitted that he remained quiet during the cab ride. The State objected to the admission of Panzo's statements on hearsay grounds. Despite Masaka's argument that the proffered portions of Panzo's statement were admissible under the hearsay exception for statements against penal interest, the trial court refused to admit any portion of Panzo's statement.

During the charge conference, which occurred before the close of the State's case, the State requested that the trial court instruct the jury on the theory of principals. Masaka objected to this instruction, arguing that the State did not charge him as a principal, there was no evidence that he was a principal to the crimes charged, and that the State had not proceeded at trial on the theory that Masaka was a principal. In response, the State asserted that it would elicit evidence to support the instruction through its remaining witness. Based on the State's representation concerning what the evidence would show, the trial court agreed to give the principals instruction over Masaka's objection. At the close of the case, the jury convicted Masaka. He now appeals, raising two grounds for reversal.

Panzo's Statements

Masaka's primary argument on appeal is that the trial court improperly excluded the proffered portions of the statement Panzo made to Detective Custer. While we recognize that the standard of review of a trial court's evidentiary rulings is abuse of discretion, see, e.g., Fitzpatrick v. State, 900 So.2d 495, 514-15 (Fla.2005), the trial court's discretion on evidentiary matters is limited by the rules of evidence. McDuffie v. State, 970 So.2d 312, 326 (Fla.2007); Johnston v. State, 863 So.2d 271, 278 (Fla.2003). Thus, we may find that a trial court has abused its discretion when "its ruling is based on an `erroneous view of the law or on a clearly erroneous assessment of the evidence.'" McDuffie, 970 So.2d at 326 (quoting Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990)); see also McCray v. State, 919 So.2d 647, 649 (Fla. 1st DCA 2006) (noting that a trial court's discretion is limited by the evidence code and applicable case law and that "[a] court's erroneous interpretation of these authorities is subject to de novo review"). Thus, we must consider the rules of evidence that govern this issue and assess the evidence presented in light of those rules.

Here, Panzo did not appear at trial, and Masaka sought to admit certain portions of Panzo's statement through the testimony of Detective Custer. Masaka agreed with the State that the proffered statements were hearsay; however, he contended that the statements were nevertheless admissible under the exception to the hearsay rule for statements that are against a declarant's penal interest. Specifically, section 90.804(2)(c), Florida Statutes (2005), provides,

(c) Statement against interest.—A statement which, at the time of its making, was so far contrary to the declarant's pecuniary or proprietary interest or tended to subject the declarant to liability or to render invalid a claim by the declarant against another, so that a person in the declarant's position would not have made the statement unless he or she believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is inadmissible, unless corroborating circumstances show the trustworthiness of the statement.

The Florida Supreme Court has held that the test for admissibility under this section is (1) whether the declarant is unavailable, and if so (2) whether the statements are relevant, (3) whether the statements tend to inculpate the declarant and exculpate the defendant, and (4) whether the statements are corroborated. See Voorhees v. State, 699 So.2d 602, 613 (Fla.1997). If the proffered statements meet these admissibility requirements, the weight to be given the statements is for the jury to determine. Id. Thus, we must consider whether the proffered portions of Panzo's statements meet these admissibility requirements.

A. Availability

Here, there is no dispute that Panzo was unavailable. The parties agree that Panzo failed to respond to several subpoenas for deposition. Once Panzo appeared for his deposition, he invoked his Fifth Amendment privilege and refused to testify. Since his deposition, Panzo had moved, and defense counsel had not been able to locate him. While the State allegedly obtained substitute service of process on Panzo's mother, Panzo did not appear at trial. The trial court found that Panzo was unavailable, and this finding is not challenged on appeal. Thus, Masaka established this requirement for admitting Panzo's statements.

B. Relevance

Given Panzo's unavailability, the next question is whether the proffered evidence was relevant to Masaka's misidentification defense. Relevant evidence is defined as that which "tend[s] to prove or disprove a material fact." § 90.401. In the context of evidence proffered by the defendant, "where evidence tends in any way, even indirectly, to establish a reasonable doubt of defendant's guilt, it is error to deny its admission" on relevance grounds. Rivera v. State, 561 So.2d 536, 539 (Fla. 1990); see also Story v. State, 589 So.2d 939, 941 (Fla. 2d DCA 1991); Vannier v. State, 714 So.2d 470, 471-72 (Fla. 4th DCA 1998).

In this case, given Loy's testimony that the man who shot him did not speak at all during the cab ride while he and the other man chatted during the ride about the upcoming Bucs' season, Panzo's statement to Detective Custer that he did not say anything during the cab ride tended to prove that Panzo was the man who shot Loy while Masaka was the man who got out of the cab before the...