Traina v. State, 93-2331

• Decision Date: 05 July 1995
• Docket Number: No. 93-2331,93-2331
• Citation: 657 So.2d 1227
• Parties: 20 Fla. L. Weekly D1549 James TRAINA, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1227

657 So.2d 1227

20 Fla. L. Weekly D1549

James TRAINA, Appellant, v. STATE of Florida, Appellee.

No. 93-2331.

District Court of Appeal of Florida,

Fourth District.

July 5, 1995.

Richard L. Jorandby, Public Defender, and Joseph R. Chloupek, Asst. Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Don M. Rogers, Asst. Atty. Gen., West Palm Beach, for appellee.

AMY STEELE DONNER, Associate Judge.

Appellant, James Traina, appeals the judgment and sentence rendered by the Circuit Court of Broward County, adjudicating him guilty of first degree murder, armed burglary and armed robbery. At trial, twenty-one witnesses testified for the state, and twenty-five witnesses testified for the defense.

The state's chief witness at trial was Charles Eisenbeis. Eisenbeis testified that he, Appellant, and Kerry Carbonell became acquainted in 1986 and attempted to buy drugs together on October 12, 1986. Eisenbeis testified that he drove both Appellant and Carbonell to the victim, Joseph Viscido's apartment. While Eisenbeis waited in the vehicle, Appellant and Carbonell went into the apartment. Shortly thereafter, Eisenbeis heard two gunshots and saw two people run away from the premises. Appellant and Carbonell returned to the vehicle, and Eisenbeis states that while Carbonell was holding a handgun that resembled an Uzi machine gun, Appellant was carrying a paper bag with cocaine inside of it. After reentering the vehicle, Carbonell told Eisenbeis that he had gotten into a fight with a man inside and that Appellant had shot the man. Shortly thereafter, Eisenbeis and his family moved back to New Jersey.

Traina's first issue on appeal is that the trial court erred in excluding certain reverse Williams rule testimony. Through proffered testimony, Traina attempted to establish that another person, namely Peter Roussonicolos, had instigated "rip offs" of drug dealers prior to and shortly after the murder of Viscido. Appellant alleged that two incidents in which Roussonicolos was involved were sufficiently similar to the instant case; therefore the trial court should have allowed evidence regarding the incidents to be admitted during trial.

The test for admissibility of reverse Williams rule evidence is relevancy. In State v. Savino, 567 So.2d 892 (Fla.1990), the Supreme Court of Florida stressed the importance of relevancy and further stated When the purported relevancy of past crimes is to identify the perpetrator of the crime being tried, we have required a close similarity of facts, a unique or "fingerprint" type of information, for the evidence to be relevant. (Citations omitted). If a defendant's purpose is to shift suspicion from himself to another person, evidence of past criminal conduct of that other person should be of such nature that it would be admissible if that person were on trial for the present offense.

Id. at 894. In addition, a trial court is given broad discretion when making a determination as to whether to admit or exclude evidence, and that decision will not be overturned absent a showing of an abuse or discretion. Rivera v. State, 561 So.2d 536, 540 (Fla.1990); State v. Ayala, 604 So.2d 1275, 1276 (Fla. 4th DCA 1992).

In the instant case, the trial court listened to the proffered evidence and found the facts of the three separate incidents not to be similar enough to warrant admission into evidence. Specifically, it found that entries into the apartments were different, the persons involved varied, and the actual conduct within the apartments during the crimes varied. We conclude that even though some facts of the instant case may have been similar to the other cases, the facts...