Smith v. State, 98-1315.

• Decision Date: 01 December 1999
• Docket Number: No. 98-1315.,98-1315.
• Citation: 746 So.2d 1162
• Parties: Patrick Joseph SMITH, II, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

746 So.2d 1162

Patrick Joseph SMITH, II, Appellant, v. STATE of Florida, Appellee.

No. 98-1315.

District Court of Appeal of Florida, First District.

December 1, 1999.

Rehearing Denied January 11, 2000.

Robert Augustus Harper and Steven Brian Whittington of Robert Augustus Harper Law Firm, P.A., Tallahassee, for Appellant.

Robert A. Butterworth, Attorney General and Bart Schneider, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.

PADOVANO, J.

Patrick Smith, the defendant, appeals his convictions for first degree murder and armed robbery. We affirm. Of the four points raised on appeal, we find that only one merits discussion. The defendant contends that the trial court erred in admitting into evidence the pretrial statement of a codefendant. He argues that the statement was not a declaration against penal interest, as the trial court ruled, and that the admission of the statement deprived him of the right to confront the witnesses against him. We agree that the trial court erred in admitting the codefendant's statement in evidence, but we conclude that the error was harmless beyond a reasonable doubt. Therefore, we affirm.

The state did not seek the death penalty on the murder charge and ultimately agreed that the evidence against the defendant was insufficient to support a finding of premeditation. However, the state argued that the defendant was guilty of first degree murder, because he participated in the armed robbery that led to the victim's death. The trial consisted of a series of witnesses who testified to the same event but gave differing versions of the defendant's participation.

Sean Bradley, the victim of the robbery, lived in a mobile home in Niceville with his fiancé, Nicole Darnell, and their friend David Lawrence, the victim of the homicide. Bradley was unemployed and supported himself by selling marijuana. He testified that a young Asian man, later identified as Harry Tipton, came to his home on December 3, 1996, and asked if he had any marijuana for sale. Three other young men entered the residence along with Tipton. Bradley could give only a general description of these men, but they were all identified by other witnesses. According to Bradley, one of the men was a heavier set Asian (Robert Wolf), one was a shorter Asian (Chris Kerr), and one was an African American (the defendant). In response to Tipton's inquiry, Bradley produced three quarterounce bags of marijuana and placed them on the coffee table in the living room.

The men were inspecting the marijuana when, according to Bradley, the African-American man stood up and pulled out a gun, pointed it at Bradley's head and said, "We're going to take your shit." Bradley put his hands in the air and said, "Fine, take it." David Lawrence had been sleeping in another room but he woke up and was walking down the hallway toward the living room just as the men were about to take the marijuana. As Lawrence approached, one of the men said, "What are you doing? We'll shoot you," or words to that effect. Lawrence responded, "If you're going to shoot me, shoot me." At that point Bradley heard the sound of a gunshot, and Lawrence fell to the floor.

Bradley did not see who fired the gun. He explained that when the shot was fired, he was looking out the window to see if Nicole was coming home from school. When he turned around, however, he saw Harry Tipton holding the gun. Tipton then pointed the gun at Bradley, who curled up in a ball. The men left, and Bradley got up and locked the door. He noticed that the marijuana he had placed on the coffee table was gone. Bradley called 911, but Lawrence died of the gunshot wound despite the efforts of the emergency technicians.

Several days later, Investigators Mark Young and Larry Ashley of the Okaloosa County Sheriffs Department questioned the defendant. They advised the defendant of his rights, and he signed a waiver indicating that he would make a statement. At first, the defendant told the investigators that he had never seen the gun until the day of the shooting. He said that on that day, Harry Tipton, Rob Wolf, and Chris Kerr came to his house and picked him up in Tipton's car. They were all going out to buy some marijuana. While the men were in Bradley's home negotiating the purchase of the marijuana, Tipton pulled out a gun, and three seconds later a shot went off.

The investigators then told the defendant that Bradley had said that it was the African-American man who had held the gun on him. At that point, the defendant revised his statement. He then said that Tipton had handed him a pistol from under the car seat and told him to carry it into the mobile home and to pull it out when they saw the marijuana. Tipton also told him that the gun was necessary, because the people inside might be armed. The defendant tucked the pistol into his waistband and later pulled it out and pointed it at Bradley as instructed. The defendant attempted to chamber a round but he did not know how to operate the pistol. Tipton then took the pistol from the defendant. When Lawrence came out from the bedroom, Tipton shot him. At that point, Robert Wolf grabbed the marijuana, and they all ran out of the house.

After the defendant's two narrative accounts of the incident, the investigators asked him whether either Sean Bradley or David Lawrence had a gun. Investigator Young testified that the defendant then said Bradley had a gun and that he was going for it when the defendant pulled out Tipton's pistol. Investigator Ashley then asked the defendant if he could record the interview. The defendant agreed, and the investigators made a tape recording, which the state later used in evidence at trial.

Robert Wolf entered a plea of no contest to manslaughter and agreed to testify for the state. The essence of his testimony was that the defendant knew about the plan to commit a robbery and that the defendant actively participated in the robbery. Wolf said that he, Tipton, and Kerr were talking about "hitting a couple of licks," which meant robbing a couple of drug dealers. They went to the defendant's house and discussed the plan with him, and then the defendant joined them in Tipton's car. Wolf testified that Tipton gave the defendant a gun and the defendant pulled the gun on Bradley and demanded the marijuana. When Tipton shot Lawrence, Wolf grabbed the marijuana, and all four men ran to the car and went back to Tipton's house. According to Wolf, they split up at that time but met again later and smoked the marijuana. When they heard that Lawrence had died, they all went to the Cinco Bayou, and Wolf tossed the gun into the water.

A dive team located the gun and retrieved it from the Bayou. At trial, the state called a firearms expert who testified that a shell casing found in Bradley's mobile home was ejected from the gun that had been retrieved by the dive team. The investigators searched Bradley's home after the homicide but they testified that they did not find another gun. Nicole Darnell testified that she had never known Bradley to keep a gun in the house.

The state called Harry Tipton as a witness out of the presence of the jury, but Tipton refused to testify. When asked if he was prepared to answer questions about the offenses, Tipton said, "No sir. I can't honestly say I'd tell the truth. I feel that if I did testify, I'd perjure myself, sir." The trial judge then instructed Tipton that if he did not agree to testify he could be held in contempt, but again Tipton declined. The jury did not hear any part of this testimony. Tipton's refusal to testify would later be used as a predicate for the admission of his pretrial statement.

The defendant took the witness stand in his own defense and testified that his initial discussion with Tipton was not about a robbery, but rather about a plan to purchase some marijuana to celebrate Tipton's birthday. When the four men arrived at Bradley's mobile home, Tipton reached under the seat, pulled out a gun, and told the defendant to hold the gun in case the people inside tried to rob them. According to the defendant, Tipton said the gun was not loaded and that it was just for show. The defendant agreed to hold the gun, and he stuck it in his waistband and went inside with Tipton. While the men were engaged in a preliminary discussion about the marijuana, Tipton said "He's got a gun," referring to Bradley. The defendant said that he saw Bradley reaching for the gun, so he pulled out the gun Tipton had given him. At that point, Bradley put his hands up, and the defendant told him to "drop the weed." The defendant explained that he told Bradley to drop the marijuana, because he was afraid Bradley would throw it at him, get his gun, and shoot him.

Tipton then told the defendant that he had to cock the gun, but the defendant did not know how. The defendant said that he had never used a gun before. Tipton grabbed the gun from the defendant and at that point David Lawrence walked out of his room, and Tipton pointed the gun at Lawrence. Lawrence said something like "Shoot me," and the gun discharged. The defendant ran out of the house and had no further contact with Tipton, Wolf, or Kerr. He denied smoking any of the marijuana and claimed that he did not even know it had been taken until the police told him. He also denied being present when the gun was thrown into the Cinco Bayou.

On rebuttal, the state sought to introduce an edited version of Harry Tipton's pretrial statement to Sheriffs investigators. In the original tape recording, Tipton said that all four men were involved in planning the robbery. The edited version was the same in all respects, except that all references to the defendant were deleted. The prosecutor argued that Tipton's statement was relevant to rebut the defendant's trial testimony, because it was unreasonable to assume that three men planning a robbery would give the gun to another person who was not aware of the...