Orange v. State

• Decision Date: 03 September 2014
• Docket Number: No. 4D11–2280.,4D11–2280.
• Citation: 149 So.3d 74
• Parties: Janard ORANGE, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

149 So.3d 74

Janard ORANGE, Appellant

v.STATE of Florida, Appellee.

No. 4D11–2280.

District Court of Appeal of Florida, Fourth District.

Sept. 3, 2014.

Rehearing En Banc Denied Nov. 10, 2014.

Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Melvin G. Mosier, Assistant Attorney General, West Palm Beach, for appellee.

Opinion

FORST, J.

Appellant Janard Orange was convicted of first degree murder, as well as four counts of robbery with a firearm and one count of assault. Appellant was 16 years old at the time of the murder of Gregory Smith (“the victim”), also 16. The victim was killed as he was waiting to be picked up following his attendance at a school social function. Appellant was sentenced to life without parole for the murder, and was also given life sentences with a mandatory minimum prison term of ten years for each of the robbery convictions.¹

We find no error with respect to Appellant's convictions. However, in light of recent United States and Florida Supreme Court decisions concerning the sentencing of juveniles, we reverse Appellant's sentence for the homicide count and remand this case for resentencing. We affirm the sentencing for the armed burglary counts, while acknowledging that conflicts between Florida's District Courts of Appeal with respect to juvenile sentencing have recently been accepted for review by the Florida Supreme Court.

Background

In April 2009, a social function was held at Boyd Anderson High School. After the function ended, six students were outside at the back of the school waiting to be picked up. While they were waiting, a car drove past them, made a U-turn, and drove back to where the students were. One student started running away when she saw that the car was coming back towards them because she was afraid. The car stopped in front of the students. Three young men got out of the car wearing black t-shirts and masks and holding guns. The young men proceeded to take the cell phones, jewelry, and money of the students. The victim gave up his cell phone and pleaded for the young men to not take his life. He was nonetheless shot in the chest by one of the masked individuals, later identified as Appellant by the other young men in the car. Appellant and the other young men returned to the car and fled when the car's driver alerted them that a car was coming. The victim died at the scene of the shooting.

Appellant's conviction was based on the testimony of the robbery and assault victims and, primarily, that of the other young men in the car that evening and the girlfriend of Appellant's co-defendant. The co-defendant testified that, when he asked Appellant why he shot the victim, Appellant replied that he “did not like [him].” One of the other young men who was in the car (and denied leaving the car to participate in the robbery), testified that, as the car passed by the students standing outside of the school, Appellant declared “that's that n—er from Parkway I don't like, pull the car over.” This witness further testified that, once the car stopped in front of the students, Appellant jumped out of the car and “started busting shots.” He then grabbed the victim. After the victim begged for his life, the witness recalls Appellant responding “f—k that” and shooting the victim. When he and the others asked Appellant why he shot the victim, Appellant replied “I don't like that n—er, he's from Parkway, f—k him.”

The co-defendant pled guilty to second degree murder and four counts of robbery. Appellant went to trial before a jury and was convicted of first degree murder, four counts of robbery with a firearm, and assault. He appeals the conviction, claiming trial court error in allowing the testimony of a former middle school counselor whose testimony established that Appellant knew the victim and had a prior “confrontation” with him. Appellant also challenges his sentences for the murder and the four robbery with a firearm convictions.

I. There was no reversible error with respect to Appellant's convictions.

Appellant's sole challenge to the convictions (as distinct from his challenges to the sentences) pertains to the State's introduction of the testimony of a behavioral support counselor at the middle school that both Appellant and the victim had attended. The State initially sought to introduce this testimony to demonstrate that Appellant and the victim knew each other prior to the night of the murder and that the victim was possibly afraid of Appellant. The State noted “[t]his is not a drive-by, this is not a stranger, that's the purpose of [the counselor's] testimony.”

A. Appellant's challenge to the initial direct examination does not merit reversal.

Although the objections to the counselor's testimony began during the State's opening statements, the challenges at issue occurred after the counselor was sworn in to testify. Appellant argued that anything the counselor would testify to concerning what the victim told him would be inadmissible hearsay. The State replied that it was more of an issue of relevancy and that the court would have to determine whether a pre-existing relationship between the parties, established through testimony of events from over a year ago, was relevant. The court decided to hear the counselor's testimony outside the presence of the jury so as to make an informed decision.

After the jury was excused from the courtroom, the State began to set forth the testimony it sought to elicit from the counselor. The counselor stated that he knew both the victim and Appellant from being a behavioral specialist at their middle school. The counselor was working with the victim on problems he was having, including one with a female student. The female student wanted to get Appellant to fight the victim but the victim did not want to fight Appellant because Appellant was known as a “tough guy in the community.” The counselor approached Appellant to ask him if he wanted to fight the victim, but Appellant chuckled and said he did not want to mess with that “little boy.” Nothing further was mentioned by the victim to the counselor about Appellant. At the end of the school year, the victim approached the counselor and said that “stuff was starting up again,” but he did not say Appellant was involved.

Outside the presence of the jury and the counselor, the trial court allowed argument from the parties as to whether the testimony was relevant. The State maintained that all it wanted to elicit from the counselor was that he knew the victim because he worked at his school, that the victim came to meet with the counselor about a problem, this led to the counselor approaching Appellant at school and speaking to him about the victim, and that the victim again approached the counselor at the end of the year. The State specifically stated that it was “not going to elicit any conversations from anybody else,” just what the counselor did. Appellant objected based on relevance and hearsay. The trial court overruled the objections in part and clarified to the counselor that anything the victim said to him was not to be discussed in front of the jury.

The counselor was then allowed to testify in front of the jury. During the initial direct examination, the counselor stated that he was a behavioral specialist at the middle school that Appellant and the victim attended and that the victim had come to him with a concern about a year before the shooting. Without saying what the concern was, the counselor explained that he and the victim then went to the cafeteria so the victim could identify the student he had a problem with. The counselor stated that the other student was Appellant and so he approached Appellant and resolved the matter. The counselor did not say what was said between him and the victim or him and Appellant.

On appeal, Appellant challenges the admission of the initial testimony of the school counselor as irrelevant and as more prejudicial than probative. We review a trial court's evidentiary rulings for abuse of discretion, which discretion is limited by the rules of evidence. McDuffie v. State, 970 So.2d 312, 326 (Fla.2007). “Overall, broad discretion rests with the trial court in matters relating to the admissibility of relevant evidence, and that ruling will not be overturned absent a clear abuse of discretion.” Lavallee v. State, 958 So.2d 509, 510 (Fla. 4th DCA 2007) (quoting Grau v. Branham, 761 So.2d 375, 378 (Fla. 4th DCA 2000) ).

Relevant evidence is defined as “evidence tending to prove or disprove a material fact.”§ 90.401, Fla. Stat. (2011). Relevant evidence is admissible unless “its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence.” §§ 90.402–.403, Fla. Stat. (2011).

We find that the trial court did not abuse its discretion in concluding that the counselor's testimony, which established that Appellant and the victim knew each other before the shooting, was relevant. As the State was arguing alternative theories of premeditated first degree murder and felony murder, the testimony went towards proving the premeditation element of the offense. Establishing that Appellant knew the victim tended to prove that the shooting was not random or merely connected to the robbery. Furthermore, even though the counselor testified to acts that occurred over a year before the shooting, the evidence was not too far removed since it was offered to show only that Appellant and the victim knew each other. Contra Nshaka v. State, 92 So.3d 843, 847–48 (Fla. 4th DCA 2012) (finding evidence inadmissible because it was too far removed and irrelevant to the crime charged).

Because the State initially questioned the counselor only to establish a connection between Appellant and the victim, without further details regarding the circumstances of the encounter or...