Snowden v. State

• Citation: 537 So.2d 1383,14 Fla. L. Weekly 257
• Decision Date: 24 January 1989
• Docket Number: No. 86-1249,86-1249
• Parties: 14 Fla. L. Weekly 257 Harold Grant SNOWDEN, Sr., Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1383

537 So.2d 1383

14 Fla. L. Weekly 257

Harold Grant SNOWDEN, Sr., Appellant, v. The STATE of Florida, Appellee.

No. 86-1249.

District Court of Appeal of Florida,

Third District.

Jan. 24, 1989.

Rehearing Denied March 2, 1989.

Bennett H. Brummer, Public Defender, and Bailey, Gerstein, Rashkind & Dresnick and F. Lee Bailey and Paul M. Rashkind, Sp. Asst. Public Defenders, for appellant.

Robert A. Butterworth, Atty. Gen., Janet Reno, State Atty., and Paul Mendelson, Asst. State Atty., for appellee.

Before HUBBART, NESBITT and DANIEL S. PEARSON, JJ.

DANIEL S. PEARSON, Judge.

Harold Grant Snowden appeals his convictions on five counts of sexual battery on two children: LB, a female aged four, and her infant brother, JB, aged six months. While we find no merit in any of the numerous points on appeal raised by Snowden, we find worthy of discussion Snowden's contention that the introduction by the State of evidence to show that the defendant had committed on two other children (a five-year-old boy named GW and a six-year-old girl named KM) similar acts of sexual battery--conceded by the defendant to be unobjectionable on relevancy grounds--infringed upon his right to a fair trial when, in violation of Williams v. State, 117 So.2d 473 (Fla.1960), this otherwise admissible evidence became a feature of the trial rather than a minor part of it.

I.

A.

The sanctioned use of similar fact evidence to establish a fact or facts in issue in a criminal prosecution continues to be fraught with the danger of convicting a person not for the crime charged, but for his criminal propensities or bad character. The concern is that "the jury may choose to punish the defendant for the similar rather than the charged act, or the jury may infer that the defendant is an evil person inclined to violate the law." Huddleston v. United States, 485 U.S. 681, ----, 108 S.Ct. 1496, 1499-1500, 99 L.Ed.2d 771, 780 (1988).

"There is no doubt that this admission [to prior unrelated crimes] would go far to convince [persons] of ordinary intelligence that the defendant was probably guilty of the crime charged. But, the criminal law departs from the standard of the ordinary in that it requires proof of a particular crime. Where evidence has no relevancy except as to the character and propensity of the defendant to commit the crime charged, it must be excluded."

Jackson v. State, 451 So.2d 458, 461 (Fla.1984) (quoting with approval Paul v. State, 340 So.2d 1249, 1250 (Fla. 3d DCA 1976)).

See Peek v. State, 488 So.2d 52 (Fla.1986). But notwithstanding the danger posed by the admission of similar fact evidence, the Florida Supreme Court has for some time adhered to a broad rule of admissibility based on the relevancy of the evidence to a fact to be proved. Williams v. State, 110 So.2d 654 (Fla.1959) [Williams I ] (affirming rape conviction where two witnesses, in rebutting anticipated defense of consent, testified to a similar act committed by defendant). ¹ This rule that relevant evidence is admissible even if it points to the commission of another crime is now codified in the Florida Evidence Code:

"Similar fact evidence of other crimes, wrongs, or acts is admissible when relevant to prove a material fact in issue, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, but it is inadmissible when the evidence is relevant solely to prove bad character or propensity."

§ 90.404(2)(a), Fla. Stat. (1987).

B.

A year after Williams I, the Florida Supreme Court announced the counterpoise to that decision. In Williams II, [Williams v. State, 117 So.2d 473 (Fla.1960) ], where evidence establishing that the murder weapon had been found in the defendant's car also established that the weapon had been found in the course of the investigation of a later murder-robbery committed by the defendant, the court reversed the murder conviction and sentence of death:

"Inasmuch as evidence of the later crime was admissible only because of its relevancy to the identity of the accused and the murder weapon and the similarity of the pattern defined in the two incidents, the question then arises whether or not the State was permitted to go too far in introduction of testimony about the later crime so that the inquiry transcended the bounds of relevancy to the charge being tried, and made the later offense a feature instead of an incident. This may not be done for the very good reason that in a criminal prosecution such procedure devolves from development of facts pertinent to the main issue of guilt or innocence into an assault on the character of the defendant whose character is insulated from attack unless he introduces the subject.

"In the present case we are convinced that the testimony about the subsequent crime was so disproportionate to the issues of sameness of perpetrator and weapon and of design that it may well have influenced the jury to find a verdict resulting in the death penalty [rather than recommending mercy]...."

Williams v. State, 117 So.2d at 475-76 (emphasis in original omitted; other emphasis added).

Following Williams II, courts have looked favorably upon the contention that the similar offense was made "a feature instead of an incident" of the trial on the charged offense where it could be said that the similar fact evidence had so overwhelmed the evidence of the charged crime as to be considered an impermissible character attack. Thus, in Reyes v. State, 253 So.2d 907, 907 (Fla. 1st DCA 1971), the court declared that

"At the conclusion of defendant's case, the State adduced a number of witnesses who testified for a period of almost two days as to prior illegal drug transactions indulged in by defendant. At this stage, the trial progressively developed into a general inquiry as to defendant's character, his propensity to indulge in criminal activities and the numerous crimes he had committed over a long period of time. One hundred forty one pages of this record is devoted to the alleged impeachment of defendant's testimony that he had not used drugs, other than those which were prescribed, prior to the date of his arrest. The rebuttal testimony is replete with evidence of prior specific crimes and hearsay testimony. The feature of the trial quickly faded into the spotlight of a sideshow focusing on the character, general reputation and propensity of defendant Reyes to engage in criminal activities. The Anglo-Saxon system of jurisprudence has not sanctioned such trials since the era of the Star Chamber."

See also Matthews v. State, 366 So.2d 170 (Fla. 3d DCA 1979); Knox v. State, 361 So.2d 799 (Fla. 1st DCA 1978). It is well settled, then, that the rule "that the State should not be permitted to make the evidence of other crimes the feature of the trial" is a limitation on the rule of relevancy. Bryan v. State, 533 So.2d 744, 746 (Fla.1988). ²

It is clear, however, that similar fact evidence will not be considered to be a feature of the case merely because a large amount of it comes before the jury. ³ , ⁴ More is required for reversal than a showing that the evidence is voluminous. "In itself the mere volume of testimony concerning the prior crime would not necessarily make it a 'feature'.... However, when considered with the additional fact that no limiting instruction was given, the prior crime could well have become a 'feature instead of an incident' of the instant case in the jury's mind. They could not be expected to know for what limited purpose the evidence of the prior crime was admitted."

Green v. State, 228 So.2d 397, 399 (Fla. 2d DCA 1969).

Thus, in Townsend v. State, 420 So.2d 615, 617 (Fla. 4th DCA 1982), the court stated that "the number of pages of testimony and exhibits should not be the sole test by any means" and went on to conclude that the jury had not been overwhelmed by the evidence because it had been given cautionary instructions no less than twelve times and, despite the quantity of evidence pertaining to the collateral crimes, had acquitted the defendant of one of the charged murders. Likewise, in Headrick v. State, 240 So.2d 203 (Fla. 2d DCA 1970), the court affirmed the defendant's convictions of the burglary and grand larceny crimes charged--rejecting the defendant's argument that the State's evidence covered so many different and separate transactions that it "transcended relevance" and, by its volume (nine witnesses called to establish six other burglaries), constituted an effort by the State to show the bad character or criminal propensities of the accused. See Rogers v. State, 511 So.2d 526 (Fla.1987) (evidence of two other robberies did not become feature of case); Stano v. State, 473 So.2d 1282 (Fla.1985) (same; evidence of eight other murder convictions in sentencing proceedings); Burr v. State, 466 So.2d 1051 (Fla.1985) (same; evidence of three other incidents); Wilson v. State, 330 So.2d 457 (Fla.1976) (same; "extremely extensive" similar fact evidence that spanned over 600 pages approached but did not reach outer boundary where prejudice begins to outweigh probative value); Talley v. State, 160 Fla. 593, 36 So.2d 201 (1948) (same; eight other victims to prove one rape); Johnson v. State, 432 So.2d 583 (Fla. 4th DCA 1983) (no feature merely from volume of testimony); Espey v. State, 407 So.2d 300 (Fla. 4th DCA 1981) (same; score of sexual batteries committed on five other victims to prove one charged crime); Dean v. State, 277 So.2d 13 (Fla.1973) (same; four other victims to prove one rape charge).

Finally, where the defendant's trial strategy causes the similar fact evidence to outweigh the evidence directly relating to the crime charged, the disparity may be disregarded entirely. In Sias v. State, 416 So.2d 1213 (Fla. 3d DCA 1982), this court rejected the defendant's feature claim, even though more time was spent and evidence presented on the collateral crime than on the charged crime, because the disproportion was caused not...