Villella v. State

• Decision Date: 13 December 2002
• Docket Number: No. 5D01-3011.,5D01-3011.
• Parties: Mark VILLELLA, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

833 So.2d 192

Mark VILLELLA, Appellant, v. STATE of Florida, Appellee.

No. 5D01-3011.

District Court of Appeal of Florida, Fifth District.

December 13, 2002.

Richard J. D'Amico, Daytona Beach, for Appellant.

Richard E. Doran, Attorney General, Tallahassee, and Angela D. McCravy, Assistant Attorney General, Daytona Beach, for Appellee.

PLEUS, J.

Mark Villella appeals his conviction for the first degree murder of his wife, Exelee Villella. Villella argues that the trial court abused its discretion in excluding corroborative testimony that Exelee had been having an affair. He also argues that the trial court should have granted his request for a mistrial when the prosecutor commented to the jury about the lack of evidence that Villella presented concerning his wife's purported affair.

In his opening statement, defense counsel told the jury that Villella stabbed his wife to death. However, counsel claimed the stabbing was not premeditated but instead was a "crime of passion" committed after Villella learned that his wife was having an affair and intended to leave him and take their child with her. Villella's attorney conceded the only issue was whether the killing was premeditated first degree murder or a lower degree of homicide.

During the testimony of the state's lead investigator, the jury heard two tape recorded interviews with Villella. In the first interview, conducted three days after her disappearance, Villella told the investigator that he and Exelee had been married about two years and they had a seventeen-month old son. Exelee had not seemed like herself for the last five or six weeks—she was working late, going out with the girls after work to drink and coming home late at night. Villella also noticed that Exelee had been talking on the telephone in private. On one occasion, Villella picked up the telephone and heard a man talking to her. One night she stayed out late, apparently drank too much and a male co-worker drove her home. Villella found an intimate letter that Exelee had written to the co-worker who had driven her home. After being confronted with the letter, Exelee admitted she was having an affair, agreed to marriage counseling and promised she would not take their son away. He told the investigator that a few days later, Exelee left in the middle of the night and he had not seen her since.

In the second interview, Villella confessed to stabbing his wife to death and concealing her body. He explained that on the night of her death, Exelee told him she no longer loved him, she wanted to leave him and take their son with her. Her lover was going to give up his wife, and she would go away with him. Villella told her he could not "take" another divorce. He had already lost two children from his prior divorce; he could not lose another one. The couple went to bed but Villella could not sleep. He tried to get Exelee to talk to him but she refused. Then he stated that he

[w]ent in the kitchen, got a knife, and stabbed her in the chest. She sat up, said, "I didn't do anything." She died right there. I loved that woman to death. I couldn't take her leaving, losing her or the child. I just cracked. I couldn't take it anymore. No sleep— losing her, losing my son. I didn't know what to do. Soon as I did it, I knew it was wrong. I didn't know what to do next.

Villella, a mortician for a funeral home, stated that he concealed his wife's body in a casket with another corpse and then buried the casket. Investigators later exhumed the casket and Exelee's body was recovered. The medical examiner testified that Exelee was stabbed four times in the chest. Three of those stab wounds were independently fatal. There was no evidence of a struggle or defensive wounds. The wounds were consistent with the victim being stabbed to death while asleep.

As part of Villella's case, the defense called Mark Camp, a co-worker of Exelee. Before defense counsel began to question Camp about his purported affair with Exelee, the prosecutor objected to any further questioning of Camp on relevancy grounds. The defense responded that the evidence of the existence of the affair was relevant to corroborate Villella's statements to the police and to prove that his belief his wife was having an affair was well founded. Otherwise, defense counsel argued, without any proof of an affair other than Villella's statements, the jury might believe Villella made up the story. The state could argue that Villella killed his wife with premeditation and simply concocted the story of the affair in the hope of not being found guilty of first degree murder. The defense's concern proved to be well-founded, as evidenced by the prosecutor's response: "I'm not conceding that there was an affair, we don't really know yet."

The trial judge sustained the prosecutor's relevance objection, but allowed the defense to proffer the proposed testimony. On proffer, Camp admitted he went out with Exelee one night and drove her home because she was too drunk to drive. However, he denied having an affair with her and denied calling her at home. He testified he did not recall telling investigators in the presence of his attorney that he was having an affair with Exelee or that he had called her house. The judge again sustained the objection. Defense counsel then proffered the testimony of the Investigator Robert Willis and Camp's attorney, Michael Politis, who both testified that Camp admitted having the affair and admitted calling Exelee.

After the proffers, the trial judge revised his ruling to allow the defense to ask whether Camp had ever called Exelee at home. Defense counsel then called Camp and asked whether he had ever called Exelee at home. Camp denied calling her at home. He also testified that he did not recall telling Willis, in the presence of Politis, that he called Exelee at home. Willis and Politis then testified that Camp told them he did call Exelee at home.

During his initial closing argument, the prosecutor told jurors:

There are insinuations made by the defense that maybe Exelee Villella was having an affair. Those insinuations came from the defendant's own statements, that is the only source for those insinuations and I will touch upon that because that is the only source as far as what possible [sic] was going on in their marriage. There was no other evidence that would indicate one way or another what was going on with Exelee Villella in her life so if one of you say, well what if she was having an affair, the response to that is that question is not relevant to what happened and you can play it out both ways. What if she was having an affair, is that justifiable for the defendant to stand over her sleeping body and stab her four times in the chest as she said, "I didn't do anything." What if she was not having an affair, does that still justify what the defendant did ....

(Emphasis added). During his rebuttal argument, the prosecutor told jurors:

The defense put on Mark Camp to, in essence, say, yes, I never called there. And they put on Investigator Willis and he said, yes, I thought he said he had called there. But you don't get the benefit of knowing where, why, who, whether any conversations took place or whether she hung up, was it work related. The inference is that must be the lover, that must be the guy, the boyfriend, but were you ever given anything else?

(Emphasis added).

Defense counsel objected and moved for a mistrial. Defense counsel reminded the judge that having successfully sought to exclude evidence of the affair, it was fundamentally unfair for the prosecutor to now suggest that the defense failed to produce any independent evidence of the affair. The trial judge sustained defense's objection but denied the motion for mistrial and gave the following curative instruction:

Ladies and gentleman, you are instruct (sic) to disregard the prosecutor's last statement. The defendant is not required to present any evidence or prove anything.

The jury found Villella guilty of first degree murder. On appeal, Villella argues that the trial court erred in excluding evidence of the affair because that evidence was relevant to establish his defense that he killed his wife in the heat of passion.

The defense of "heat of passion" is well established in Florida. It can be a complete defense if the killing occurs by accident and misfortune in the heat of passion, upon any sudden and sufficient provocation. See § 782.03, Fla. Stat. (2002); see also Fla. Std. Jury Instr. (Crim.) On Excusable Homicide. Or, as in the instant case, it can be used as a partial defense, to negate the element of premeditation in first degree murder or the element of depravity in second degree murder. See, e.g., Douglas v. State, 652 So.2d 887 (Fla. 4th DCA 1995).

One of our supreme court's earliest explanations of the substance and purpose of this partial crime of passion defense is found in Whidden v. State, 64 Fla. 165, 59 So. 561 (1912):

A sudden transport of passion, caused by adequate provocation, if it suspends the exercise of judgment, and dominates volition, so as to exclude premeditation and a previously formed design, may not excuse or justify a homicide, but it may be sufficient to reduce a homicide below murder in the first degree, although the passion does not entirely dethrone the actor's reason.

Id. at 561; see also Paz v. State, 777 So.2d 983 (Fla. 3d DCA 2000). The court in Whidden also stressed the importance of allowing evidence relevant to this defense, stating:

In a prosecution for murder in the first degree for the unlawful killing of a human being from a premeditated design to effect the death of the person killed, or any human being, the defendant under a plea of not guilty may introduce any relevant and proper evidence tending to show a lack of premeditated design in the admitted killing so as to reduce the offense charged to a lower degree of homicide.

Whidden, 59 So. at 561. The Fourth District Court of Appeal...