Smith v. State, 2D02-4844.

CourtCourt of Appeal of Florida (US)
Writing for the CourtWALLACE.
Citation880 So.2d 730
PartiesDenesiz Letroy SMITH, Appellant, v. STATE of Florida, Appellee.
Docket NumberNo. 2D02-4844.,2D02-4844.
Decision Date28 May 2004

880 So.2d 730

Denesiz Letroy SMITH, Appellant,
STATE of Florida, Appellee

No. 2D02-4844.

District Court of Appeal of Florida, Second District.

May 28, 2004.

Rehearing Denied July 9, 2004.

880 So.2d 732
James Marion Moorman, Public Defender, and Siobhan Helene Shea, Special Assistant Public Defender, Bartow, for Appellant

Charles J. Crist, Jr., Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Appellee.


Denesiz Letroy Smith appeals his convictions and sentences for manslaughter with a firearm and shooting into an occupied vehicle. During Smith's trial, the State experienced the serial mutiny of its three primary witnesses when they each repudiated their prior out-of-court statements accusing Smith of committing the crimes charged. The State responded by asking the investigating detective to play for the jury the witnesses' prior inconsistent statements that he had tape recorded. Over timely defense objections, the trial court permitted the State to play the tape-recorded statements in their entirety for the jury. The audiotapes were not admissible into evidence in their entirety either as nonhearsay or under any exception to the hearsay rule. Nevertheless, the trial court admitted them as substantive evidence and not for the limited purpose of impeachment. The trial court's ruling constituted error that was not harmless under the circumstances of this case. Therefore, we reverse Smith's convictions and sentences and remand for a new trial.

The Facts

The victim of the alleged homicide was Timmie Ray Mabry, a Fort Myers businessman. At Smith's trial, one of Mabry's friends testified that he had last seen Mabry on the night of November 17, 2000, when the two men left a night club together and drove away in different directions. The following afternoon, Mabry's fiancée reported him missing after he did not return home. Mabry's whereabouts remained unknown for over a week, and his unexplained disappearance received significant media attention. Ultimately, a $20,000 reward was offered in connection with the case.

On November 26, 2000, pursuant to an informant's tip, Lee County sheriff's deputies located Mabry's pickup truck in neighboring Hendry County. The truck had been submerged in a canal for several days. The truck was removed from the canal, and a body subsequently identified from dental records as Mabry's was recovered from the vehicle. After an autopsy, the medical examiner determined that Mabry had died as a result of two separate gunshot wounds to the head. The medical examiner testified at trial that Mabry's wounds were consistent with his having been shot from behind with a shotgun while he was sitting in a vehicle.

The evidence at trial strongly suggested that Mabry was shot during a visit he made to the Charleston Park neighborhood in the early morning hours of November 18, 2000. Charleston Park is a small rural community located on State Road 80 near Alva in northeastern Lee County, approximately one mile from the

880 So.2d 733
Hendry County line. Jeff Brown, a detective with the Lee County Sheriff's Office, testified that rumors about Mabry's death were widespread in the Charleston Park neighborhood following the shooting, including reports that Smith was the perpetrator of the homicide. On the day after Mabry's truck was discovered, Smith appeared at a Lee County sheriff's substation office because he had heard that Detective Brown wanted to speak with him. Detective Brown interviewed Smith at length, and Smith denied any involvement in Mabry's death. Although Smith was permitted to leave at the conclusion of the interview, he was arrested later and charged with second-degree murder with a firearm and shooting into an occupied vehicle. On January 3, 2001, after Smith's arrest, Detective Brown conducted another lengthy interview with him. During the second interrogation, Smith once again steadfastly denied involvement in Mabry's death

At trial, the manner of Mabry's death was not in dispute. Ample testimony and physical evidence supported the State's theory that Mabry had been killed by a shotgun blast fired from behind while he was sitting in his pickup truck. When Mabry's pickup truck was removed from the canal, a detective noted that parts of the driver's side mirror and a plastic wind deflector on the window frame were missing from the vehicle. The missing vehicle parts were subsequently recovered at the location in Charleston Park where the State contended the shooting had occurred, linking Mabry's vehicle to the scene of the homicide. However, the shotgun used to kill Mabry was never recovered. Moreover, the State did not develop any physical evidence linking Smith to Mabry's death.

At trial, the State called several witnesses who were in Charleston Park when the incident occurred. The first such witness was Mae Kafus, a Charleston Park resident, who testified that she was familiar with Smith's voice and appearance. In the early morning hours of November 18, 2000, Mae Kafus' children awakened her and told her someone had been killed. Mae Kafus got out of bed and went to her porch where she heard a voice that she thought was Smith's exclaim, "Oh, Lord, I killed somebody." Mae Kafus was careful to point out that her perception and recollection of what she had heard might have been adversely affected by the effects of medication and stress. She also conceded on cross-examination that she was not sure that the voice she heard belonged to Smith.

Next, the State called Betty Jean Smith, a Charleston Park resident unrelated to Smith, who testified that she had known Smith for years and considered him a friend. Betty Jean Smith was awakened in the early morning hours of November 18, 2000, by the sound of two shotgun blasts. She also heard someone running and peered out of her window. In the bushes in front of her house, she saw a pickup truck fitting the description of Mabry's vehicle. Five minutes after the shotgun blasts, Betty Jean Smith saw an African American man with dreadlocks back the truck out of the bushes and drive it away. Although Betty Jean Smith acknowledged that Smith was an African American man who wore his hair in dreadlocks when the incident occurred, she insisted that the man she saw in the truck was not Smith because the man she saw had a darker complexion and longer dreadlocks than Smith. On further examination, Betty Jean Smith admitted that she did not get a very good look at the person in the truck, but she maintained her claim that the person she saw driving Mabry's truck was not Smith.

880 So.2d 734
The State also presented the testimony of Katrina Thomas—another Charleston Park resident and Mae Kafus' adult daughter. Thomas testified that she and her brother, Jason Kafus (Mae Kafus' son), were among a number of people from the neighborhood standing outside in the early morning hours of November 18, 2000. She also stated that she saw Smith and two other men approach the truck. Then Thomas heard a single gunshot and saw the truck drive off into some bushes. Thomas testified that she did not see Smith or either of the other two men with a gun, and she did not know from what direction the gunshot had come. Thomas also testified that she did not hear Smith make any incriminating statements after the incident. In addition to Smith and the two men who approached the truck, Thomas observed about six other people in the area

Following the testimony of Mae Kafus, Betty Jean Smith, and Katrina Thomas, the State called three additional witnesses— Chad Moreland, Iris Moreland, and Jason Kafus (the "recanting witnesses"). The two prosecutors who were trying the case for the State had obviously anticipated before trial that the testimony of these three additional witnesses would be critical to the State's case against Smith. Prior to trial, each of the recanting witnesses had given tape-recorded statements to Detective Brown in which they implicated Smith in the shooting of Mabry. At trial, to the apparent surprise and consternation of the prosecutors, the State's witnesses proved to be completely uncooperative.

Chad Moreland testified that he had been standing outside near Smith when Mabry drove up in his truck. Nevertheless, Moreland denied that Smith had approached the truck. Moreland also said that he had not seen Smith with any weapons that night and denied hearing Smith make any incriminating statements. The prosecutor tried repeatedly to refresh Moreland's recollection with his prior recorded statement. Moreland, whose memory was not refreshed, responded to these attempts at one point: "Man, forget the sworn statement."

The State's next witness was Chad Moreland's sister, Iris Moreland. Iris denied giving a statement to Detective Brown and denied ever being questioned by detectives about Mabry's death. Iris also denied being present at the scene of the shooting, claiming that she was home when the incident occurred.

When Jason Kafus was called to the stand, he testified that he was not at the scene in Charleston Park when the shooting occurred. Jason also testified that he could not recall giving a statement to Detective Brown. When offered an opportunity to review a copy of his statement to refresh his recollection, Jason declined, stating that he did not want to look through it because he did not remember it at all.

Following the failure of the State's efforts to obtain the expected testimony from its three major witnesses, the State called Detective Brown to the stand. Detective Brown had been assigned as the lead investigator in the case after it became apparent that Mabry's disappearance was the result of foul play. Detective Brown questioned and obtained statements from a number of people in the case, including the recanting witnesses and Smith. Detective Brown identified audiotapes that contained interviews with Smith that had been conducted on November 27, 2000, and January...

To continue reading

Request your trial
19 cases
  • Ibar v. State, SC00-2043.
    • United States
    • United States State Supreme Court of Florida
    • March 9, 2006
    ...interpretation of the statute has continued and formed the basis of the Second District Court of Appeal's decision in Smith v. State, 880 So.2d 730 (Fla. 2d DCA In Smith, the Second District addressed the identical statutory provision in a situation involving witnesses to the criminal episo......
  • State Of North Carolina v. Rawls, COA09-1029.
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • October 19, 2010
    ...crime, to where the police are detaining the suspect, in order to give them an opportunity to make an identification.” Smith v. State, 880 So.2d 730, 739 n. 2 (Fla.App.2004) (internal quotation marks omitted). Indeed, our Supreme Court has observed that “[s]howups are an efficient technique......
  • McNeal v. State, 1D11–6875.
    • United States
    • Court of Appeal of Florida (US)
    • February 28, 2013
    ...Court, and that it, and now this opinion, conflicts with the contrary conclusion reached by the Second District in Smith v. State, 880 So.2d 730 (Fla. 2d DCA 2004), and the Fourth District in Kimbrough v. State, 846 So.2d 540 (Fla. 4th DCA 2003). We respectfully disagree with the approach t......
  • Hunter v. State, CASE NO. 1D13-0862
    • United States
    • Court of Appeal of Florida (US)
    • May 12, 2015
    ...statements conveying information from the unidentified speaker as inadmissible hearsay within hearsay. See, e.g., Smith v. State, 880 So. 2d 730, 741 (Fla. 2d DCA 2004) (holding recorded statements ofPage 8eyewitnesses to a shooting relaying the shooter's alleged statements constituted hear......
  • Request a trial to view additional results
5 books & journal articles
  • Trial and evidence
    • United States
    • James Publishing Practical Law Books Florida Family Law and Practice - Volume 1
    • April 30, 2022
    ...statement, publishing of the statement was error and remained for a proper harmless error analysis, if applicable. • Smith v. State, 880 So. 2d 730 (Fla. 2d DCA 2004). Admission as substantive evidence of audiotapes of prior inconsistent statements of primary witnessed who each had repudiat......
  • Records
    • United States
    • James Publishing Practical Law Books Trial Evidence Foundations Hearsay
    • May 5, 2019
    ...his recollection before taking the stand; however, the witness must then testify from his independent recollection. Smith v. State , 880 So.2d 730 (Fla. App. 2004). Subject to laying a proper foundation, a tape-recorded statement may qualify as a recorded recollection. First, the witness mu......
  • Hearsay exceptions: declarant available
    • United States
    • James Publishing Practical Law Books Florida Family Law Trial Notebook
    • April 30, 2022
    ...would not be admissible unless both the statement and the taped statements were admissible under hearsay exceptions. Smith v. State, 880 So.2d 730 (Fla. 2nd DCA 2004). Thomas v. State Excited utterance exception to the hearsay rule applied to statement made by witness that he heard the vict......
  • Witness questioning and answering
    • United States
    • James Publishing Practical Law Books Florida Family Law Trial Notebook
    • April 30, 2022 form for impeachment purposes, as inconsistent statements, but the State failed to raise that as an exception. Smith v. State , 880 So.2d 730 (Fla. 2d DCA 2004). 7.13 SELF-SERVING Generally, self-serving testimony will violate the hearsay rule because it is generally testimony by a ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT