Sims v. State

• Citation: 839 So.2d 807
• Decision Date: 05 March 2003
• Docket Number: No. 4D01-4300.,4D01-4300.
• Parties: Javis L. SIMS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

839 So.2d 807

Javis L. SIMS, Appellant, v. STATE of Florida, Appellee.

No. 4D01-4300.

District Court of Appeal of Florida, Fourth District.

March 5, 2003.

Carey Haughwout, Public Defender, and James W. McIntire, Assistant Public Defender, West Palm Beach, for appellant.

Charlie Crist, Attorney General, Tallahassee, and Donna L. Eng, Assistant Attorney General, West Palm Beach, for appellee.

HAZOURI, J.

Javis Sims (Sims) was charged with fleeing or attempting to elude a marked police car and driving while his license was revoked. After a jury trial, he was found guilty on both counts. The trial court entered a judgment in accordance with the jury verdict. Sims was sentenced to five years, with credit for time served, to be followed by five years probation. We reverse the judgment and sentence and remand for a new trial.

The charges against Sims arose from an incident allegedly occurring on July 25, 2000. On that date, police officer Michael Kelley allegedly saw Sims driving a Chevy Malibu (Chevy). Officer Kelley was not on duty and was driving his personal vehicle, an S.U.V. He was driving in the same direction as Sims, first behind him and then next to him. Sims was the only person in the vehicle. Officer Kelley recognized Sims because he had casual contact with Sims prior to July 25, 2000, and believed that Sims had his driver's license revoked. Officer Kelley called in the name and tag number of the car. He also radioed for marked police units to respond to the area. The tag that Officer Kelley called in was registered to Dora Byrd, Sims' wife.

Officer Kelley saw Sergeant Tom McCabe and Deputy Chief Immler respond to his call. The Chevy was stopped at a red light. Deputy Chief Immler got out of his vehicle, an unmarked Crown Victoria, and approached the Chevy. He was wearing his police uniform and asked the driver (alleged to be Sims) to produce his driver's license and vehicle registration. The driver reached over into the glove compartment and then accelerated his vehicle and proceeded down the road. Deputy Chief Immler testified that he had eye contact with the driver for less than a minute and could only generally identify him as a black man with dreadlocks in his late twenties or early thirties. Deputy Chief Immler got back into his vehicle and attempted to pursue the Chevy. He saw the Chevy make a U-turn and go through two red lights, but the Chevy disappeared out of sight. He did not continue to pursue the vehicle due to heavy traffic. Sergeant McCabe was on road patrol at the time and also responded to Officer Kelley's call. He observed the sequence of events, but similar to Deputy Chief Immler could identify the driver only as a black male with long dreadlocks. At trial, neither Deputy Chief Immler nor Sergeant McCabe could identify Sims as the driver.

On August 4, 2000, Officer Kelley, while on patrol, saw Sims in a parking lot of a convenience store. He allegedly observed Sims get into a 1992 Chevrolet, back the vehicle up, and park it. Officer Kelley testified that this was a different car than the one he saw Sims in on July 25, 2000. However, the tag was the same. Officer Kelley arrested Sims based on the July 25, 2000, incident.

Prior to the commencement of the trial, Sims filed a motion in limine to prohibit the introduction of "Law enforcement testimony regarding the observation of Defendant unlawfully operating a motor vehicle on August 4, 2000 or at any time prior or subsequent to the present charges." Sims argued that the testimony was not relevant to the offenses at issue and would substantially prejudice him. He also argued that the State had not given notice of "similar fact" evidence. See § 90.404(2)(c)1, Fla. Stat. (2000).¹ At a hearing on the motion, Sims argued that since he was not charged for any actions occurring on August 4, 2000, any testimony by the police officers that Sims was driving a vehicle on that date should be considered similar fact evidence of other crimes and was offered only to prove Sims' propensity to commit the charged offense. The State argued that the arrest on August 4, 2000, and Sims' conduct during the arrest is intertwined with the charged offenses and is relevant to Sims' identity since the tag on the car that Sims was allegedly driving on August 4, 2000, was the same tag on the vehicle on July 25, 2000. The trial judge denied Sims' motion in limine.

During the opening statement, the State told the jury that ten days after the alleged incident, Officer Kelley saw Sims driving a different vehicle with the same tag as the vehicle the officers attempted to stop on July 25, 2000. Sims objected, but the trial judge overruled the objection. The trial judge ruled that the State could elicit evidence that Sims was driving a car with the same tag of the car that he was charged with driving on July 25, 2000. However, the State could not argue that Sims' driving on August 4, 2000, was a crime.

At trial, Sims contended that he was not the man driving the Chevy on July 25, 2000. He argued that the description given by the police officers could identify many people, including both his brother and his stepson, also tall black males with dreadlocks and who both had access to the Chevy. Sims also presented testimony from two alibi witnesses, Curtis Williams and Ernest Nixon, both of whom testified that they were with Sims on July 25, 2000, and that they were fishing in Pahokee, which is "no where near" where Officer Kelley allegedly saw Sims driving the Chevy.

Prior to Ernest Nixon's testimony, the parties addressed the State's anticipated impeachment. The State had a copy of paperwork with a seal from the Clayton County State Court in Georgia, showing that Nixon pled guilty to the crime of dishonesty or false statement, was placed on probation, and had an active warrant in Georgia for a violation of probation. Nixon told the court that he had pled guilty because he was forced to, but that no one had told him he was convicted. He stated that he thought that he was never convicted and since he was on probation, he thought the case was still open. Sims argued that without proof of a conviction, the State could not impeach. The trial court determined that the jury was entitled to know that Nixon pled guilty and was placed on probation for the crime of giving a false statement because it reflected on his credibility. The trial court also stated that Nixon was free to deny it.

Nixon, who is Sims' first cousin, testified that on July 25, 2000, he was fishing with Sims all day. During cross-examination, the State tried to impeach Nixon by asking him if he had ever pled guilty and been convicted of a crime involving dishonesty. Nixon answered, "Yes." Defense counsel failed to renew his objection to this impeachment and, in fact, during re-direct examination elicited from Nixon that the crime he pled guilty to occurred in 1998 in the State of Georgia, and that "the police officer said I gave him a wrong name." He further stated that he did not know whether he had actually been convicted of the offense.

Dora Byrd Sims (Sims' wife) testified. She stated that both her son and Sims' brother fit the general description given by the officers and that she often lends her vehicles to them to drive to and from school. She also testified that it was not Sims driving the Chevy on July 25, 2000. Sims, himself, took the stand and testified that on July 25, 2000, he was fishing with some friends and that he did not learn about the incident in which he was allegedly involved until he got home. He acknowledged that he had previously been convicted of "approximately four felonies."

Sims contends inter alia that the trial court abused its discretion by allowing the State to present evidence that Sims was seen driving a car with the same tag number, on August 4, 2000, the day he was arrested. He argues that the evidence is irrelevant to the identity of the driver on July 25, 2000, and that the State offered it only to prove his propensity to drive with a revoked driver's license. We agree.

The admissibility of collateral crime evidence is within the discretion of the trial court and its determination shall not be disturbed absent an abuse of that discretion. See LaMarca v. State, 785 So.2d 1209, 1212 (Fla.2001)

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The Florida Supreme Court addressed the standard for admission of collateral crime evidence in Williams v. State, 110 So.2d 654 (Fla.1959). "Our view of the proper rule simply is that relevant evidence will not be excluded merely because it relates to similar facts which point to the commission of a separate crime. The test of admissibility is relevancy." Id. at 659. This rule is codified in section 90.404(2)(a), Florida Statutes (2000), which provides that the state may introduce similar fact evidence of other crimes or acts when it is relevant to prove a material fact in issue like identity, preparation, motive, intent, opportunity, plan, absence of mistake or accident, or knowledge. However, similar fact evidence is inadmissible when the evidence is relevant solely to prove bad character or propensity. See Kulling v. State, 827 So.2d 311 (Fla. 2d DCA 2002)

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Pursuant to the trial court's ruling on Sims' motion in limine, the State could present evidence that Sims was driving the vehicle on August 4, 2000, with the same tag, but not that it was a crime.² Sims argues that the testimony that he was driving a vehicle with the same tag on August 4, 2000, does not make it more likely than not that he was the driver of the vehicle on July 25, 2000, and therefore is not relevant.

The State argues that the testimony...