State v. Storer

• Decision Date: 10 February 2006
• Docket Number: No. 2D05-1044.,2D05-1044.
• Parties: STATE of Florida, Petitioner, v. Lawrence Emery STORER, Respondent.
• Court: Florida District Court of Appeals

920 So.2d 754

STATE of Florida, Petitioner, v. Lawrence Emery STORER, Respondent.

No. 2D05-1044.

District Court of Appeal of Florida, Second District.

February 10, 2006.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Elba Caridad Martin, Assistant Attorney General, Tampa, for Petitioner.

John M. Fitzgibbons and B. Kay Klein of The Law Offices of John M. Fitzgibbons, Tampa, for Respondent.

ALTENBERND, Judge.

The State petitions this court for a writ of certiorari quashing a pretrial order of the trial court in this criminal proceeding. The order is entitled, "Order on Defense's Notice of Intention to Introduce Similar Fact Evidence Including Prior Convictions of Shantavious Wilson [Pursuant to FSA 90.404(2)(a) or Reverse Williams Rule Evidence]." Although we are not entirely convinced that we would have entered this order at this stage of the proceedings, we conclude that our limited certiorari powers do not give us authority to quash this order. See State v. Pettis, 520 So.2d 250 (Fla.1988). We therefore deny the petition.

I. THE PROCEEDINGS IN THE TRIAL COURT¹

Lawrence Emery Storer operates a restaurant in downtown Tampa. On October 29, 2003, at approximately 11:30 p.m., he had closed the restaurant for the day and was sitting in his car in front of the restaurant when he was approached by Shantavious Augustus Wilson. Mr. Wilson pointed a gun at Mr. Storer through the open window of the car and ordered Mr. Storer to give him all of his money. When Mr. Storer said he had no money, Mr. Wilson ordered Mr. Storer to go into the restaurant and get some money. The two men went into the restaurant, and Mr. Storer gave Mr. Wilson a bag containing approximately twenty dollars. Mr. Wilson then left the restaurant and began to look for more money in Mr. Storer's car.

As soon as Mr. Wilson left the restaurant, Mr. Storer locked the front door and went to the telephone to call the police. As he was dialing the telephone, he saw Mr. Wilson run away. Mr. Storer decided to follow Mr. Wilson in his car. A few blocks from the restaurant, Mr. Storer's car struck and killed Mr. Wilson.

Following a police investigation, the State charged Mr. Storer with manslaughter by unlawful act without lawful justification pursuant to section 782.07, Florida Statutes (2003). Although neither party to this proceeding has been required to explain its theory of the case, the State apparently intends to argue that Mr. Storer took the law into his own hands and ran over Mr. Wilson rather than allowing the police to do their job. It is less clear what Mr. Storer intends to argue, but under the law he is entitled to argue that the death was an excusable homicide, i.e., that the death occurred by accident and misfortune in the heat of passion, upon sudden and sufficient provocation. See § 782.03, Fla. Stat. (2003).

Because this incident occurred late at night, there were no eyewitnesses who could confirm that Mr. Wilson committed the robbery. The State is willing to stipulate that Mr. Wilson was the robber. Mr. Storer, however, does not wish to stipulate to this fact. He wants to present evidence at trial that Mr. Wilson was convicted of a similar robbery in 1998. Both robberies occurred at approximately the same time of day and involved a handgun. In both cases, Mr. Wilson robbed the operator of a family-owned business who was of Asian descent. Mr. Storer claims that this evidence is relevant to prove that Mr. Wilson was the man who robbed him. It is undisputed that Mr. Storer knew nothing about the prior robbery when he allegedly ran over Mr. Wilson with his car.

Mr. Storer characterizes this evidence as "reverse Williams rule" evidence. Accordingly, he filed a notice of intent to introduce similar fact evidence at trial that is comparable to the notice the State is required to file under section 90.404(2)(c)(1), Florida Statutes (2003). The State did not move to strike the notice and did not file a motion in limine. The trial court has conducted a hearing on the "notice" and has entered an order on the subject, which is the subject of this proceeding. In the order, the trial court has ruled that evidence of the prior conviction "in summary fashion, may be presented to the jury to prove the identity of the victim of the manslaughter to be the same person as the one who committed the armed robbery upon the Defendant moments before the victim's death." It appears that the trial court intends to allow the victim of the earlier robbery to testify about the event and that the trial court intends to give an instruction limiting the relevance of the testimony to the issue of whether Mr. Wilson was the person who robbed Mr. Storer just before Mr. Wilson died.

II. THE NATURE OF THIS PROPOSED EVIDENCE

We are not convinced that this evidence is actually "reverse Williams rule" evidence. Williams rule evidence is evidence of prior crimes or bad acts of the defendant presented by the State under section 90.404(2)(a), as character evidence of the accused, when relevant to prove a material fact in issue. The name of the rule is derived from the lead case on the subject. Williams v. State, 110 So.2d 654 (Fla. 1959). There is extensive case law governing Williams rule evidence. See Charles W. Ehrhardt, Florida Evidence § 404.9 (2004 ed.). Before the State can introduce Williams rule evidence, it must file a pretrial motion under section 90.404(2)(c)(1), giving notice of its intent to use the evidence at trial.²

"Reverse Williams rule" is a newer concept with a smaller body of case support. In Rivera v. State, 561 So.2d 536, 539 (Fla.1990), the supreme court explained:

Although the question of the admissibility of "reverse Williams Rule" evidence by a defendant appears to be one of first impression for this Court, the Third District in Moreno v. State, 418 So.2d 1223, 1225 (Fla. 3d DCA 1982), has permitted it on the basis that an accused may show his or her innocence by proof of the guilt of another. That view has been adopted by the First District in Brown v. State, 513 So.2d 213, 215 (Fla. 1st DCA 1987), dismissed, 520 So.2d 583 (Fla.1988):

While most cases generally involve the offer of similar fact evidence by the prosecution against a defendant in a criminal case, there is nothing in the language of [section 90.404(2)(a), Florida Statutes (1985)] which precludes the use of evidence offered by a defendant in a criminal case, or by a party in a civil action. See C. Ehrhardt, Florida Evidence § 404.9 (2d ed.1984).

(Footnote omitted.)

Other jurisdictions also have held that defendants may introduce similar fact evidence. See, e.g., Commonwealth v. Keizer, 377 Mass. 264, 385 N.E.2d 1001 (1979) (reaffirming Commonwealth v. Murphy, 282 Mass. 593, 185 N.E. 486 (1933)); State v. Bock, 229 Minn. 449, 39 N.W.2d 887 (1949); State v. Garfole, 76 N.J. 445, 388 A.2d 587 (1978).

This concept is generally used by a defendant to convince the jury that some other person committed the crime. See State v. Savino, 567 So.2d 892 (Fla.1990); Palazzolo v. State, 754 So.2d 731 (Fla. 2d DCA 2000). As the supreme court stated in McLin v. State, 827 So.2d 948, 957 n. 7 (Fla.2002) (citing Rivera, 561 So.2d at 539): "Reverse Williams rule evidence permits the defendant to introduce evidence of prior similar crimes involving another person, if a proper predicate is laid, to show the defendant's innocence by proof of the guilt of another." If reverse Williams rule evidence is character evidence, it is usually evidence of the character of some third party who is not involved in the lawsuit.

Because Mr. Storer is not intending to introduce this evidence to suggest that someone else ran over Mr. Wilson, we doubt that it falls within the case law on reverse Williams rule. Instead, this is an issue involving the character of the victim under section 90.404(1)(b)(1).³ Such evidence is generally inadmissible by a defendant except when introduced to prove a relevant "trait." See § 90.404(1)(b)(1), Fla. Stat. (2003). For example, evidence that a victim is violent may be admitted in a case where self-defense is an issue. See Pino v. Koelber, 389 So.2d 1191, 1194 (Fla. 2d DCA 1980); see also Charles W. Ehrhardt, Florida Evidence § 404.6 (2004 ed.).

Mr. Storer apparently wants to prove that Mr. Wilson was a habitual robber who targeted Asian businessmen. We doubt that this is a "trait" contemplated by the applicable rule of evidence. On the other hand, if Mr. Storer is attempting to establish an excusable homicide, it probably is important to prove that the "heat of passion" or "sufficient provocation" was in fact created by Mr. Wilson. Just as the State does not need to stipulate to facts in a criminal case when it would prefer to prove the matter to the jury, Mr. Storer may likewise wish to present evidence relevant to his theory.

Two procedural matters affect our analysis in this case. First, although Mr. Storer filed a notice of intent to rely upon this evidence, it is noteworthy that the statutes and rules of procedure do not require him to file this notice. Section 90.404(2)(c)(1) only applies to the State. Moreover, since it appears that this evidence is not reverse Williams rule under section 90.404(2), but evidence of the character of the victim under section 90.404(1), this pretrial ruling is a matter that did not need to be resolved prior to trial under the standard rules of procedure.

Second, on direct appeal both Williams rule and reverse Williams rule decisions are normally reviewed under the abuse of discretion standard. See White v. State, 817 So.2d 799 (Fla.2002); Chandler v. State, 702 So.2d 186, 195 (Fla.1997); see also Henrion v. State, 895 So.2d 1213, 1216 (Fla. 2d DCA 2005) ("A trial court's decision to admit collateral crime or Williams rule evidence is reviewed for an abuse of discretion."); Kulling v. State, 827 So.2d 311 (Fla. 2d DCA 2002) (holding that the trial court's decision to admit Williams rule evidence is reviewed for an abuse of...