Miller v. State, 4D99-0392.

• Decision Date: 19 April 2000
• Docket Number: No. 4D99-0392.,4D99-0392.
• Citation: 756 So.2d 1072
• Parties: Steven MILLER, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

756 So.2d 1072

Steven MILLER, Appellant,
v.
STATE of Florida, Appellee

No. 4D99-0392.

District Court of Appeal of Florida, Fourth District.

April 19, 2000.

Richard L. Jorandby, Public Defender, and Sophia Letts, Assistant Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.

WARNER, C.J.

Two brothers were tried together for committing aggravated battery upon a single victim. Both claimed that they acted in self-defense after the victim became aggressive and had threatened to kill the appellant. At trial, the state sought to have the victim testify as to a telephone call from appellant's brother in which he apologized to the victim for the incident and offered him money in exchange for dropping the charges. Arguing that the state was trying to prove consciousness of guilt from appellant's brother's statement which would be imputed to appellant, defense counsel moved to sever appellant's trial from that of his co-defendant brother's. The trial court denied the motion, and the victim was allowed to testify about the statement. We reverse.

Although the decision on whether to grant a motion to sever is generally within the trial court's discretion, see Dupree v. State, 705 So.2d 90, 95 (Fla. 4th DCA 1998), Florida Rule of Criminal Procedure 3.152(b)(1)(B) provides that the court shall order a severance of defendants if requested during trial "on a showing that the order is necessary to achieve a fair determination of the guilt or innocence of 1 or more defendants." A motion to sever should be granted when the evidence sought to be admitted applies only to a codefendant, but which may improperly influence the jury as to the charge against the other defendant. See Viniegra v. State, 604 So.2d 863, 864 (Fla. 3d DCA 1992). In Hernandez v. State, 570 So.2d 404, 405-06 (Fla. 2d DCA 1990), the court determined that admission of evidence of collateral drug crimes committed by the defendant's brother, when the two brothers were being tried together for a drug offense, required the severance of the two brothers' trials. Similarly, in the instant case, the acknowledgment of guilt by appellant's brother through his apology to

756 So.2d 1073

the victim and offer to pay him to drop the charges undermined both defendants' theory of self-defense. We conclude that the court abused its discretion in denying the motion to sever....