Patrick Albert Evans v. State of Florida Corrected Opinion ( 2015 )

Supreme Court of Florida
____________
No. SC12-2160
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PATRICK ALBERT EVANS,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
[November 12, 2015]
CORRECTED OPINION
PER CURIAM.
Patrick Albert Evans appeals his two convictions for first-degree murder and
two sentences of death.1 Because of errors that occurred during the trial, we vacate
the convictions and sentences of death and remand for a new trial.
Among other errors, the lead detective usurped the role of the jury by being
permitted to opine that a voice heard on a 911 call-back recording belonged to the
defendant, even though the detective had no prior knowledge of the defendant and
1. We have jurisdiction of Evans’ appeal under article V, section 3(b)(1), of
the Florida Constitution.
no expertise in voice identification. In addition, the State insinuated
unsubstantiated and incriminating facts when it cross-examined the defendant, by
implying through its questions that the defendant was obsessed with his estranged
wife and stalking her boyfriend—the victims. Yet, the prosecutor recognized that
he could not present any evidence to support such statements because they were
based on speculation and hearsay. The prejudicial effect of these errors was then
amplified by patently improper comments in the closing argument, during which
the prosecutor repeatedly disparaged the defendant’s theory of the case and defense
attorneys in general; relied on facts and statistics not in evidence to imply that the
victims must have been murdered by a family member; and criticized the
defendant’s decision to pursue his constitutional right to a jury.
The cumulative effect of these preserved errors was not harmless beyond a
reasonable doubt, and the existence of additional unpreserved errors buttresses our
conclusion that Evans is entitled to a new trial. Accordingly, for the reasons more
fully explained in this opinion, we vacate Evans’ convictions for first-degree
murder, vacate the sentences of death, and remand for a new trial.
FACTS
On January 22, 2009, Evans was indicted for the first-degree murders of
Elizabeth Evans (“Beth”), his estranged wife, and Gerald Taylor, Beth’s new
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boyfriend. The two were fatally shot in the master bedroom of Beth’s
condominium on December 20, 2008.
The record reflects that Evans and Beth had a tumultuous marriage. While
married to Beth, Evans had an affair with his ex-wife, Andrea, the mother of his
minor son. Evans ended the affair in April 2008, but then filed a petition to
divorce Beth, stating that the marriage was irretrievably broken. Shortly thereafter,
Evans changed the locks on the marital home and, without Beth’s knowledge,
moved the belongings of Beth and her daughter from a prior marriage, Molly, to a
condominium that Evans and Beth owned. However, approximately one week
later, again without Beth’s or Molly’s knowledge, Evans returned their belongings
to the marital home. Soon after, Beth independently and individually leased a
condominium, but was unable to collect her furniture from the marital home so she
purchased new furniture. In addition to bedrooms for her and Molly, Beth set up a
third bedroom at the condominium for her stepson because, despite the pending
dissolution of marriage, she wanted to maintain a relationship with him. Her
stepson occasionally visited Beth at the condominium, and Evans would drop him
off and pick him up.
In July 2008, Evans attempted to rekindle his relationship with Beth and
voluntarily dismissed the petition for dissolution of marriage that he had filed only
a few months prior. According to Molly, Evans began to wear his wedding ring.
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He also made an effort to visit the condominium, and when the door was unlocked,
Evans would simply enter without knocking or announcing himself. Molly stated
that Beth did not appreciate Evans’ efforts to rekindle the relationship, and she
became upset when he entered her condominium unannounced. Beth never gave
Evans a key to her condominium. However, during the fall of 2008, Beth
discovered that the keys to her condominium were missing. She eventually
retrieved the keys from Evans’ mother, Marcy. In November 2008, Beth filed a
petition for dissolution of marriage, which Evans testified did not upset him.
Evans testified that he was aware Beth had a date on December 20, 2008—
the day of the murders—but claimed he did not know her date’s name. During the
late afternoon of December 20, 2008, Molly’s boyfriend saw Beth with a man,
whom Beth introduced as Jerry, hitting golf balls at the course where Molly’s
boyfriend worked. Beth and her companion left the course around 5:30 p.m. At
approximately 6:15 p.m., Beth’s next-door neighbor, Pamela Ashby, who had
dinner plans, became nervous because the person who was to pick up a child in
Ashby’s care was running late. Ashby intended to call Beth to see if the child
could stand in Beth’s driveway until the person arrived, but she accidentally dialed
Evans’ number. Evans informed Ashby that Beth was not available because she
was on a date.
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At approximately 6:45 p.m., Scott Graham, who also lived in the same
condominium complex as Beth, was walking his dog. A man approached Graham
and asked if he had seen two Yorkshire Terriers, to which Graham replied that he
had not. The man departed in the direction of Beth’s condominium. The only
person in this fifteen-unit complex that Graham knew to have Yorkshire Terriers
was Beth Evans. He testified that, while the man who approached him that night
definitely resembled Evans, Graham could not definitively identify him.
At 7:09 p.m., the 911 dispatch service received a hang-up call from the
landline at Beth’s condominium. When a public safety telecommunicator called
the number, the following was recorded:
Male Voice #1: Sit on the bed.
Female Voice: I’m going to put a robe on.
Male Voice #1: No, you’re not put—[inaudible]
Dispatcher: Hello?
Male Voice #1: Sit on the bed.
Female Voice: No.
Dispatcher: Hello?
Female Voice: Rick—[simultaneously with]
Male Voice #1: Sit on the bed.
Female Voice: No! Rick![2]
2. Evans testified during the trial that his nickname is Rick.
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Male Voice #2: Put the gun down and I’ll sit down, all right?
Male Voice #1: Sit on the bed. Sit on the bed, Jerry.
Male Voice #2: I’ll sit down once you put the gun down. Hey, hey.
[inaudible] . . . gun down.
Male Voice #1: Jerry, sit on the bed.
Female Voice: Help!
Male Voice #2: Please.
Female Voice: Help! [more distance than the initial call for help]
Male Voice #2: Put the gun—[gunshot]
Female Voice: Are you out of your fuck—[gunshot]
Dispatcher: Hello?
No further voices were heard until law enforcement arrived.
The two deputies who responded to the 911 hang-up call discovered that the
door to Beth’s condominium was unlocked, and there was no sign of forced entry.
Once they entered the home, they saw one Yorkshire Terrier. After determining
that no one was present on the lower level of the home, the deputies proceeded
upstairs. The deputies found Gerald Taylor on the floor of the master bedroom,
nude, with a small wound in his neck. Taylor was alive but nonresponsive and
subsequently died. The deputies discovered the body of Beth Evans, also nude and
with a wound in her neck, on the screened-in patio that was attached to the master
bedroom. Sitting next to her body, shaking, was a second Yorkshire Terrier. Two
.40 caliber shell casings were discovered at the scene—one in the vicinity of where
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each victim lay. On a nightstand in the master bedroom was an Uncle Mike’s
Sidekick holster.
Upon learning that Evans was Beth’s next of kin (the dissolution of marriage
was not yet final), the lead detective, Edward Judy, proceeded to Evans’ home at
approximately 11:15 p.m. At that point, Detective Judy had not heard the 911 call-
back recording. Although Evans’ truck was present, he did not answer the door
when Detective Judy attempted to make contact. Detective Judy placed his card in
the door of Evans’ home and departed. Detective Judy subsequently heard the
recording during which Beth referred to the shooter as “Rick.”
Evans was taken into custody by a tactical team that had been conducting
surveillance on his residence. Thereafter, a warrant was issued to search the home
for a handgun and ammunition. Inside a safe at the residence were three boxes of
Speer Gold Dot .40 caliber hollow-point ammunition, the same brand of
ammunition as the casings found at the scene of the murders. Two of the boxes
had bullets removed. Also inside the safe was a factory box for a .40 caliber Glock
firearm, but no gun was found. The police were able to match the serial number on
the box with the serial number of the gun that Evans purchased on November 22,
2005, from a sporting goods store. The holster recovered from the crime scene
appeared to match a holster Evans purchased at the same time.
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Inside the Glock factory box was an envelope that contained two shell
casings from test firings that had been conducted at the factory. The serial number
on the envelope matched the serial number on the box and the receipt from the
sporting goods store. A firearms analyst with the Florida Department of Law
Enforcement testified that the shell casings found at the crime scene matched the
test-fired shell casings from the Glock factory.
During trial, Beth’s daughter Molly, Ashby (Beth’s neighbor), and Detective
Judy all identified Evans as the male voice on the 911 call-back recording saying,
“Sit on the bed.”3 The medical examiner testified that Beth Evans and Gerald
Taylor died from gunshot wounds to the neck, and the cause of death was
homicide. Stippling was present around Taylor’s entrance wound, which indicated
that the muzzle was 2 to 24 inches away at the time the weapon was discharged.
No evidence of stippling was present on Beth’s body. The handgun that was used
to commit the murders was never found.
During the defense case-in-chief, Evans and his brother, Rodney, testified
that from approximately 4:15 p.m. until 8:20 p.m. on the day of the murders, they
were together fishing, cooking, shooting pool, and packing for a ski trip that Evans
3. Detective Judy testified that his familiarity with Evans’ voice arose from
a review of recordings of phone conversations between Evans and family members
while Evans was held at the Pinellas County Jail.
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had planned. Evans denied that it was his voice on the recording. He spoke the
following phrases in front of the jury after segments from the recording were
played: “Sit on the bed,” “Sit on the bed, Jerry,” and “Jerry, sit on the bed.”
In addition to presenting an alibi defense, the defense implied that Evans’
ex-wife, Andrea, could have been responsible for the murders. Evans testified that
during his marriage to Beth, there was constant tension between Andrea and Beth.
He described the close relationship between Beth and his son and noted that the
child called Beth “mom” and Andrea “mommy.” Evans also noted that during a
burglary of his home in February 2008, a bracelet that his son had given to Beth,
which said “Mom,” had been taken. Evans testified that Andrea knew the code to
the safe in which the firearms were kept and that Andrea had been visiting Beth’s
condominium.4 Evans noted that Andrea was in dire financial straits, and shortly
after the murders, she filed a Motion to Enforce Child Support. He further
explained that in January 2009, he was scheduled to get a large payout from his
former employer, and Andrea subsequently sought an enforcement of equitable
distribution. During guilt-phase closing arguments, defense counsel asserted that
4. Molly testified that despite the initial problems that Evans and Beth
encountered with Andrea, and despite the affair between Andrea and Evans,
Andrea and Beth eventually became friends. According to Molly, Andrea would
visit Beth and bring the child along. Molly also testified that Andrea knew Beth
and Taylor were going to be together on the weekend of the murders.
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Andrea was the only person who stood to gain financially from the murder of Beth.
The jury found Evans guilty of the first-degree murders of Elizabeth Evans and
Gerald Taylor.
During the penalty phase, the State did not present additional evidence.
Evans presented his mother, Marcy, and his two brothers, Rodney and Glenn, who
testified that Evans is a dedicated family man and a good son and brother. Rodney
described how Evans helped him through addiction and mental health issues. He
testified about Evans’ charitable work with Smile Corporation and how Evans
provided scholarships to high school students and donated buses to organizations
and churches.5 Rodney also described Evans’ love for his son. Marcy described
Evans as a hard worker who accepted and met his responsibilities. She also
recounted how he provided her with emotional support when her brother died and
her house burned down.
The jury recommended sentences of death by a vote of nine to three for the
murder of Beth and by a vote of eight to four for the murder of Taylor. During the
Spencer6 hearing, no additional evidence was offered by Evans. Defense counsel
5. During penalty-phase closing statements, defense counsel also referenced
Evans’ charitable work with the Boys & Girls Club. Molly mentioned this work
during her guilt-phase testimony.
6. Spencer v. State, 615 So. 2d 688 (Fla. 1993).
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informed the trial court that “there was a doctor who was hired in regards to this
matter who has done an evaluation in regards to Mr. Evans. However, there is
nothing . . . that would indicate that there was any evidence of mental mitigation
for which the Court could consider in this matter.”
The trial court sentenced Evans to death for the murders of Beth and Taylor.
The trial court found that two aggravating circumstances had been established: (1)
Evans had been convicted of a prior capital felony (the contemporaneous murder
of the other victim) (great weight); and (2) the murders occurred while Evans was
engaged in the commission of or an attempt to commit a burglary (great weight).
The trial court concluded that Evans had established the statutory mitigating
circumstance that he had no significant criminal history and gave this factor “some
weight.” However, the trial court rejected the statutory mitigating factor of Evans’
age at the time of the crimes (41 years old). The trial court found six nonstatutory
mitigating circumstances: (1) Evans’ work ethic and history (moderate weight); (2)
Evans’ relationship with his children—his son with Andrea and a daughter from
his first marriage (little weight); (3) Evans shares love and support with his family
(little weight); (4) Evans has behaved appropriately during courtroom proceedings
(minimal weight); (5) the length of his mandatory sentence (little weight); and (6)
Evans’ charitable and humanitarian deeds (little weight). The trial court concluded
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that the aggravating factors outweighed the mitigating factors. This direct appeal
follows.
ANALYSIS
On direct appeal, Evans raises eight issues: (1) whether the trial court erred
when it denied Evans’ motion for judgment of acquittal on the charge of
premeditated first-degree murder; (2) whether the trial court erred when it
instructed the jury on burglary as the underlying felony as a basis for first-degree
felony murder; (3) whether the trial court erred when it allowed Detective Judy to
offer an opinion that the voice on the 911 call-back recording was that of Evans;
(4) whether the trial court erred when it denied Evans’ motion for a mistrial and
declined to give a curative instruction after the State insinuated that Evans hired a
private investigator to investigate Gerald Taylor; (5) whether during guilt-phase
closing arguments, the prosecutor denigrated Evans and his defense, improperly
commented on Evans’ right to a jury trial, and misstated the law; (6) whether
Evans is entitled to a new trial based on cumulative error during the guilt phase; (7)
whether the trial court improperly minimized the mitigation evidence; and (8)
whether the death sentences are disproportionate.
For the reasons that follow, we reject Evans’ claims that the trial court erred
in denying a judgment of acquittal and in instructing the jury on burglary as the
underlying felony. However, we conclude that numerous errors occurred during
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the trial, including that the trial court erred in permitting a law enforcement officer
to testify to voice identification simply because he listened to jailhouse recordings
of Evans on multiple occasions (Issue 3); the State insinuated through unsupported
questioning that Evans hired a private investigator to investigate Taylor (Issue 4);
and the prosecutor gave improper closing arguments (Issue 5). We hold that, based
on these cumulative errors, Evans is entitled to a new trial. We do not address the
penalty-phase issues because we vacate the convictions and sentences of death.
I. Voice Identification by Law Enforcement Officer
In the first issue we address, Evans claims that the trial court erred when it
permitted Detective Judy to offer his opinion that the voice on the 911 call-back
recording belonged to Evans. During trial, the prosecutor asked Detective Judy if
he could recognize Evans’ voice based upon the fact that he had listened to jail
recordings between Evans and family members, and Detective Judy replied,
“Absolutely.” Defense counsel objected, contending that it was inappropriate to
permit Detective Judy—the lead detective—to testify to such matters. Counsel
also asserted that to permit Detective Judy to offer an opinion would invade the
province of the jury because he was not a family member or close friend who had
spoken with Evans in the past. The trial court overruled the objection, stating:
The comparison, apparently, is a known voice exemplar from a jail
call and he’s heard the unknown voice [from the call-back recording].
And the jury can do that. There is no reason why this detective can’t
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do that and recognize it’s his own opinion. [The State is] not
qualifying him as some sort of expert with voice waves and all that.
The trial court also stated that a voice identification by Detective Judy would not
be prejudicial because identifications of Evans as the voice on the call-back
recording had been made by Beth’s daughter Molly and Beth’s neighbor Ashby.
Thereafter, Detective Judy testified that he had listened to the call-back recording
over fifty times, and there was no question in his mind that Evans was the voice
saying, “No, you’re not;” “Sit on the bed;” and “Jerry, sit on the bed.”
A trial court’s decision to admit evidence is reviewed under the abuse of
discretion standard. Hudson v. State, 992 So. 2d 96, 107 (Fla. 2008). “That
discretion, however, is limited by the rules of evidence.” Id. Relevant testimony is
inadmissible where its probative value is substantially outweighed by the danger of
unfair prejudice. § 90.403, Fla. Stat. (2014). If the trial court erred in admitting
certain evidence, we review whether the error was harmful, focusing on the effect
that the error had upon the trier-of-fact. Gregory v. State, 118 So. 3d 770, 782
(Fla. 2013). “In other words, ‘[t]he question is whether there is a reasonable
possibility that the error affected the verdict.’ ” Id. (quoting State v. DiGuilio, 491
So. 2d 1129, 1139 (Fla. 1986)).
This Court has held that testimony that a lay witness recognizes a voice as
belonging to the accused is admissible as proof of identity. England v. State, 940
So. 2d 389, 400-01 (Fla. 2006). However, testimony that a witness recognizes the
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voice of the accused is inadmissible on the basis that it invades the province of the
jury unless the testifying witness (1) was an eyewitness to the crime, (2) has some
prior special familiarity with the voice of the defendant, or (3) is qualified as an
expert in identification. See, e.g., Charles v. State, 79 So. 3d 233, 235 (Fla. 4th
DCA 2012); Ruffin v. State, 549 So. 2d 250, 251 (Fla. 5th DCA 1989).
In numerous cases, courts have permitted a witness to identify a defendant’s
voice or image where the witness in question was previously familiar with the
defendant. For example, the Second District Court of Appeal has held that the
State could present two witnesses to testify that the voice they heard on a recording
belonged to the defendant, noting that these witnesses had known the defendant
“for a significant period of time” and had spoken to the defendant in person and
over the telephone. State v. Cordia, 564 So. 2d 601, 601-02 (Fla. 2d DCA 1990);
see also Hardie v. State, 513 So. 2d 791, 792 (Fla. 4th DCA 1987) (holding that
police officers who had prior knowledge and contact with the defendant before the
crime at issue could testify as to the defendant’s identity so long as they did not
identify themselves as police).
In contrast, in Ruffin, 549 So. 2d at 251, the State presented the testimony of
three police officers, over objection, who opined that the defendant was the person
in a video shown to the jury even though they had no prior knowledge of the
defendant. The Fifth District Court of Appeal held that this opinion testimony
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invaded the province of the jury because “[w]hen factual determinations are within
the realm of an ordinary juror’s knowledge and experience, such determinations
and the conclusions to be drawn therefrom must be made by the jury.” Id. In
determining that the defendant was entitled to a new trial, the district court stressed
that the opining officers “were not eyewitnesses to the crime, they did not have any
special familiarity with Ruffin, and they were not qualified as any type of experts
in identification.” Id.Similarly, in this case, Detective Judy was not an eyewitness to the crime,
nor was he qualified as a voice identification expert. Therefore, the only basis
upon which his identification of Evans as the voice on the 911 call-back recording
could have been admissible was if he had already possessed a special familiarity
with Evans’ voice. Detective Judy testified that he had listened to known
recordings of Evans’ voice from jail conversations and was able to recognize his
voice based upon these recordings. This, however, did not amount to a prior
special familiarity.
While the dissent relies on Vilsaint v. State, 127 So. 3d 647, 648 (Fla. 4th
DCA 2013), for the proposition that a police officer can identify a defendant’s
voice on a recording based on later conversations, that case concerns a trial judge’s
determination of whether the recording can be authenticated and thus presented to
the jury—it does not involve a police officer testifying to the jury itself that the
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defendant’s voice sounds like the same voice on a recording that documented the
murder. We find that case factually distinguishable. Other cases relied upon by
the dissent involve a prior special familiarity with the defendant before the charged
crime. See, e.g., Barrientos v. State, 1 So. 3d 1209, 1212 (Fla. 2d DCA 2009)
(deputy had prior familiarity with the defendant); Cordia, 564 So. 2d at 601(officers who had known the defendant “for a significant period of time,” and who
had spoken to him in person, over the telephone, and via police radio were
permitted to identify the defendant’s voice on a recording even if they were not the
individuals who received the original telephone call). However, a police officer
investigating a particular suspect’s voice after the investigation is ongoing, as in
this case, does not constitute the requisite prior familiarity with the suspect. Thus,
we conclude that it was error for the trial court to permit Detective Judy to opine
that the voice on the recording belonged to Evans when he did not have prior
familiarity with Evans or special training in voice recognition.
Further, this error was magnified by the fact that the jury was aware
Detective Judy was the lead detective investigating this case. As we have
previously explained, “error in admitting improper testimony may be exacerbated
where the testimony comes from a police officer.” Martinez v. State, 761 So. 2d
1074, 1080 (Fla. 2000). “When a police officer, who is generally regarded by the
jury as disinterested and objective and therefore highly credible, is the
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corroborating witness, the danger of improperly influencing the jury becomes
particularly grave.” Id. (quoting Rodriguez v. State, 609 So. 2d 493, 500 (Fla.
1992)). “There is the danger that jurors will defer to what they perceive to be an
officer’s special training and access to background information not presented
during trial.” Charles, 79 So. 3d at 235.
In fact, permitting questions that elicit a witness’s position as a police officer
when that witness is identifying a defendant’s voice or image has been held to be
reversible error even when the identification itself was permissible. In Day v.
State, 105 So. 3d 1284, 1286-87 (Fla. 2d DCA 2013), the district court held that a
law enforcement officer could testify as to her opinion that the defendant was one
of the people in a surveillance video because the witness testified that she
previously knew the defendant and could independently identify her—she was a
“community-oriented police officer” for a specific area of town and, as part of her
job, she knew many of the residents, including the defendant. Even though she had
familiarity with the defendant, the district court concluded that the trial court
committed reversible error, nevertheless, in permitting the State to also elicit
evidence that the witness was a police detective. Id.; see also Hardie, 513 So. 2d at
792 (reversing convictions and holding that police officers who had prior
knowledge and contact with the defendants could testify as to the defendants’
identity but could not identify themselves as police).
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In this case, the trial court applied the wrong analysis when it reasoned that
the State could introduce Detective Judy’s voice identification because it was not
“prejudicial” but merely cumulative to testimony from Beth’s daughter and Ashby,
the next door neighbor. The correct analysis was whether Detective Judy’s
testimony was independently admissible. Moreover, while Molly was Evan’s
stepdaughter and Ashby was the next door neighbor, Detective Judy, as the lead
detective, lent an aura of expertise to the voice identification precisely because of
his status as the law enforcement officer in charge of the investigation, adding the
imprimatur of his belief in the defendant’s guilt. Therefore, the trial court erred
when it admitted the opinion testimony of the lead detective and concluded that the
testimony would not be “prejudicial” because Molly and Ashby had already
identified the voice as that of Evans.
Since Evans objected to the admission of this evidence, this error is subject
to a harmless error analysis. See State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla.
1986). We would consider whether the erroneous admission of Detective Judy’s
testimony was harmless beyond a reasonable doubt, standing alone, but because we
conclude that other preserved errors also occurred, we consider the effect of the
preserved errors cumulatively to determine whether there is any reasonable
possibility that the errors contributed to the conviction. See McDuffie v. State, 970
So. 2d 312, 328 (Fla. 2007).
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II. Insinuations Regarding Hiring a Private Investigator
In the next claim we address, Evans asserts that the trial court erred in
denying his motion for a mistrial and declining to give a curative instruction after
the State insinuated that Evans hired a private investigator to investigate Gerald
Taylor. During cross-examination, the following dialogue occurred between the
prosecutor and Evans:
STATE: Your testimony today is you did not know that name of the
person [Beth] was going to—she was seeing?
EVANS: I did not know the name of the person that she was seeing
that night. I knew it as a date.
STATE: And isn’t it true you pressed her to get the information about
[Taylor]?
EVANS: I don’t recall having a conversation like that, sir.
STATE: Do you recall telling her that you actually knew where he
lived and how many kids he had?
EVANS: I don’t recall that I knew anything about Gerald Taylor, sir.
STATE: Isn’t it true that you hired a private investigator to find out
information about . . . Taylor prior to December 20th of 2008?
EVANS: No, sir.
After the State presented Detective Judy as a rebuttal witness, defense counsel
moved for a mistrial on the above questions, arguing:
[T]here has been no evidence of any kind that has been presented that
would suggest that that statement was true. And what it has done now
is it’s before this jury [“]isn’t it a fact that you hired a private
investigator to go out and learn about and research Jerry Taylor,
which, obviously, implies that you went to the extreme of hiring
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somebody because you were stalking Beth and that you were trying to
get information about his guy that she was seeing before the homicide
occurred.[”] And [Evans] answered no, and there’s been no evidence
at all presented that that could be a true statement.
The prosecutor offered the following explanation for the question:
I totally had a good faith basis to ask it. I guess I should have known
what his answer would be because, as you know, I don’t have access
to the Defendant. But there had been information from the victim in
this case that she had told other people, which would be hearsay, that
she believed that the Defendant had hired a private investigator
because the morning of December 20th when he was pressing her
about who she was going out with that night, and she finally said Jerry
Taylor, he then told her where he lived and how many children he
had. So she believed that he had hired a private investigator.
So that is the reason that I asked him that question. I didn’t
really expect him to answer it truthfully, but I certainly had a good
faith basis in asking it. . . . I wasn’t just making stuff up to try to
make him look bad. There was an actual basis in fact why I asked it.
The trial court denied both the motion for mistrial and defense counsel’s request
for a curative instruction.
This Court recently held that “[i]t is impermissible for the state to insinuate
impeaching facts while questioning a defense witness without evidence to back up
those facts.” Braddy v. State, 111 So. 3d 810, 853 (Fla. 2012) (quoting Shimko v.
State, 883 So. 2d 341, 343 (Fla. 4th DCA 2004)). We recognized that this
principle held true regardless of whether the State insinuated impeaching facts and
never had proof of those facts or whether that evidence did exist, but was not later
proved. Id.- 21 -
The Third District Court of Appeal has explained why such insinuation is
impermissible without later presenting proof of the underlying facts:
The reason that such proof must be forthcoming is because the
predicate question—e.g., ‘Didn’t you tell me . . .?’ or ‘Didn’t you say
to so-and-so’—is itself testimonial, that is, the question suggests that
there is a witness who can testify that such a statement was made.
When this suggested witness is not actually called to give the
impeaching testimony under oath, all that remains before the jury is
the suggestion—from the question—that the statement was made.
When that occurs, the conclusion that must be drawn is that the
question was not asked in good faith, and that the attorney’s purpose
was to bring before the jury inadmissible and unsworn evidence in the
form of his questions to a witness.
Marrero v. State, 478 So. 2d 1155, 1157 (Fla. 3d DCA 1985) (emphasis omitted).
In this case, the State stresses that the prosecutor asked the question in good
faith—an assertion that, even if relevant, is not supported by the record. The
prosecutor’s basis for this question was that Beth had told others that she
“believed” Evans had hired a private investigator. This comment was purely
speculative, and the reasons behind her belief could not be explored after her death.
Further, the prosecutor recognized that the information he sought to elicit was
based on hearsay and was inadmissible.
Had the prosecutor provided evidence to impeach Evans in response to his
denial that he hired a private investigator, this line of cross-examination may have
been permissible. However, the prosecutor never revisited the subject or produced
impeachment evidence. Therefore, the prosecutor’s insinuations arguably left the
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jury with the damaging impression that Evans stalked Beth and was so obsessed
with her that he hired a private investigator to acquire information about her new
boyfriend. This line of questioning, which was not supported by any evidence,
was improper. See Braddy, 111 So. 3d at 853. The dissent fails to reconcile its
position that this type of questioning should be permissible with our holding in
Braddy—thus, its reliance on the Fourth District’s opinion in Carpenter v. State,
664 So. 2d 1167, 1167 (Fla. 4th DCA 1995), which was decided well before
Braddy, is misplaced. Further, Carpenter is distinguishable because, prior to
asking the insinuating question, the State could have called a witness to support its
insinuation and, in fact, had that witness’s written statement at the time the
prosecutor asked the question. Here, the evidence the State relied upon to ask the
insinuating question was inadmissible hearsay, and there was no evidentiary basis,
beyond the hearsay itself, to support the question.
Not only was the State permitted to ask these improper questions, but this
line of questioning targeted a key issue that the jury was required to resolve—
whether the murders of Beth and Taylor were premeditated. The evidence
pertaining to this question was highly contested. The jurors had heard mixed
testimony as to whether Evans had accepted the dissolution proceedings that Beth
initiated, or if he was trying to save his marriage and reconcile with her. These
improper questions planted a seed in the minds of the jurors that Evans was a
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stalker who secretly investigated Beth’s new boyfriend to determine where he
lived. These unsubstantiated allegations would give jurors the impression that
Evans was obsessed with his estranged wife, and this could have played a role in
their conclusion that the murders were premeditated. It could have also been
considered by the jury in determining that Evans entered Beth’s home with the
intent to commit a felony.
Accordingly, because the trial court erred in permitting the State to ask these
improper questions, we must consider the cumulative effect of this preserved error,
along with the other preserved errors, to determine whether there is any reasonable
possibility that the errors contributed to the conviction.
III. Guilt-Phase Closing Arguments
Evans next alleges that during guilt-phase closing arguments, the prosecutor
improperly commented on Evans’ right to a jury trial, misstated the law, and
denigrated Evans and his defense. Many of these comments occurred during the
State’s rebuttal—the last opportunity for the jury to hear the attorneys speak about
the case and the conclusions to be drawn from the evidence.7
7. The prosecutor who presented the rebuttal closing statement, William A.
Loughery, has “pushed the envelope” in other cases. Sheridan v. State, 799 So. 2d
223, 225-26 (Fla. 2d DCA 2001). Mr. Loughery was previously chided by the
Second District Court of Appeal for his arrogance and his inappropriate comments.
Id. In Sheridan, the Second District stated:
- 24 -
As Evans acknowledges, defense counsel objected to some of the comments,
but not all of them. He also unsuccessfully moved for a mistrial, based on some of
the comments. Thus, three standards of review are relevant. For those closing
A troubling aspect of the trial was the prosecutor’s conduct.
Indeed, one of Sheridan’s issues on appeal was that the trial court
erred when it denied his motions for mistrial predicated upon repeated
prosecutorial misconduct in closing argument. . . .
Mr. Loughery repeatedly made improper statements during
closing argument, including the reference to a defense theory as
“desperate.” The trial judge felt that Mr. Loughery was challenging
him to declare a mistrial. When the trial judge questioned Mr.
Loughery on this point, he responded:
Let me explain this. I certainly am not [attempting to
have a mistrial declared], okay? And I hate to say this,
but I will. You know, I have tried a lot of cases. I’ve
never been reversed as a prosecutor for misconduct.
Never. I’ve won most of my cases. I never had a
conviction reversed. This is no different than things I
might say in other cases.
Now, I don’t know what your experience is with
the prosecutors you’ve watched. Maybe they’re a bunch
of dishrags. I don’t know. But what I’m doing is not
improper, okay?
We have set forth this comment to demonstrate the arrogant
attitude displayed by the prosecutor during the trial of this extremely
strong case. It was not necessary for Mr. Loughery to have “pushed
the envelope” as he did. But for the fact that the evidence was so
overwhelming and that Sheridan was convicted of a lesser offense
than that with which he had been charged, Mr. Loughery’s statements
and actions may well have resulted in this court reversing the
conviction due to prosecutorial misconduct.
Id. at 225-26 (emphasis supplied).
- 25 -
arguments where the defense objected to improper comments and the trial court
erroneously overruled defense counsel’s objection, we apply a harmless error test.
See Snelgrove v. State, 921 So. 2d 560, 568 (Fla. 2005); Doorbal v. State, 837
So. 2d 940, 956-57 (Fla. 2003). Where counsel failed to raise a contemporaneous
objection when improper closing argument comments were made, the unobjected-
to comments must rise to the level of fundamental error, which has been defined as
error that “reaches down into the validity of the trial itself to the extent that a
verdict of guilty could not have been obtained without the assistance of the alleged
error.” Brooks v. State, 762 So. 2d 879, 898-99 (Fla. 2000) (quoting McDonald v.
State, 743 So. 2d 501, 505 (Fla. 1999)). Finally, where the trial court denied a
motion for mistrial, we review that ruling under an abuse of discretion standard.
See Carr v. State, 156 So. 3d 1052, 1066 (Fla.) (holding that if the prosecutor’s
comment was improper, any error was harmless beyond a reasonable doubt and the
trial court did not abuse its discretion in denying the defense motion for mistrial on
that basis), cert. denied, No. 14-9726 (Oct. 5, 2015); Belcher v. State, 961 So. 2d
239, 255 (Fla. 2007) (explaining that, where the trial court erroneously overrules
an objection to improper prosecutorial comments, this Court reviews the comments
for harmless error and the denial of the motion for mistrial based upon the
comments for abuse of discretion).
- 26 -
On appeal, this Court must review “the entire closing argument with specific
attention to the objected-to arguments and the unobjected-to arguments.” Card v.
State, 803 So. 2d 613, 622 (Fla. 2001); see also Merck v. State, 975 So. 2d 1054,
1061 (Fla. 2007). As this Court has explained, “A trial court has discretion in
controlling opening and closing statements, and its decisions will not be overturned
absent an abuse of discretion. We look at the closing argument as a whole to
determine whether that discretion was abused.” Merck, 975 So. 2d at 1061.
We address each challenge separately and then discuss the cumulative
impact of any improper comments.
A. The Prosecutor’s Erroneous Statement of the Law
Evans asserts that during guilt-phase closing arguments, the prosecutor
misstated the law when he informed the jurors that a killing in the heat of passion
qualifies as second-degree murder, failing to acknowledge that a heat of passion
killing can also constitute manslaughter. When the prosecutor explained why the
crimes were first-degree offenses and did not satisfy the criteria for second-degree
murder, he stated:
What varies greatly in this case is a second-degree murder is
not one of premeditation. It is one that the law instructs you that it is
an act done by—imminently dangerous to another or demonstrating a
depraved mind without regard to human life. And it’s often referred
to in society as one of heat of passion and one of a—I guess, the heat
of passion is how it’s described out in society.
I will suggest there is one major fact in this case that allows you
to say this is not second-degree murder. This is not heat of passion
- 27 -
because of the main fact of where this occurs. It occurs in the
bedroom of Elizabeth Evans. Okay?
....
You can’t bring—you can’t subject yourself to the situation.
You can’t run into the house with a gun knowing they are out on a
date, and divorce proceedings are pending, and somehow claim that I
am so outraged by what I saw, I pulled out a gun and I started firing at
people. Because I was so blinded by my passion and anger, I just
pulled out a gun and in a depraved mind started shooting it at these
individuals.
(Emphasis supplied.) Evans did not object. With regard to manslaughter, the
prosecutor stated only:
Ladies and gentlemen, there is one final lesser included. I’m
not going to go in depth into it. It’s one of manslaughter. Reading the
instruction on manslaughter, you will find that the evidence in this
case goes way beyond manslaughter.
It is error for a prosecutor to misstate the law during closing arguments.
See, e.g., Brooks, 762 So. 2d at 902; Charriez v. State, 96 So. 3d 1127, 1127 (Fla.
5th DCA 2012). In Johnson v. State, 969 So. 2d 938, 952 (Fla. 2007), this Court
addressed “heat of passion” and explained:
The jury could have concluded from this evidence that Johnson acted
not from premeditation but from a depraved mind regardless of human
life or in the heat of passion, which would make the killing second-
degree murder or manslaughter. Cf. Douglas v. State, 652 So. 2d 887,
890 (Fla. 4th DCA 1995) (“[A] jury can find a defendant who has
killed in the heat of passion guilty of either second degree murder or
manslaughter . . . .”) (citing Forehand v. State, 171 So. 241 (Fla.
1936)).
See also Villella v. State, 833 So. 2d 192, 195 (Fla. 5th DCA 2002) (noting that
heat of passion “can be used as a partial defense, to negate the element of
- 28 -
premeditation in first degree murder or the element of depravity in second degree
murder”). Thus, Evans is correct that the prosecutor failed to inform the jury that
under Florida law, a heat of passion killing can also constitute manslaughter and
not just second-degree murder. When reviewing closing arguments, this Court
considers the cumulative effect of all improper arguments, including the objected-
to and unobjected-to closing arguments. See Merck, 975 So. 2d at 1062; Brooks,
762 So. 2d at 898-99 (considering cumulative effect of numerous instances of both
objected-to and unobjected-to improper prosecutorial comment).
B. Right to a Jury Trial
Evans next asserts that the prosecutor impermissibly commented on his right
to a jury trial:
So we looked at some financials of Andrea to suggest—you know,
folks, when you got a guy on tape doing a murder and using his gun,
I’m going to suggest there is not a lot you can argue. This is what
America is about. Everybody has a right to a jury trial.
....
So in America everybody has a right to a jury trial regardless of
the evidence against you. It could be on videotape. It could be in
front of a hundred priests. You have a right to a jury trial.
(Emphasis supplied.) Defense counsel objected and moved for a mistrial after the
first comment, contending that the prosecution was denigrating the defense. The
trial court overruled the objection and denied the motion for mistrial. No objection
was raised to the second comment.
- 29 -
It is improper for a prosecutor to comment on a defendant’s exercise of his
right to a jury trial. Bell v. State, 723 So. 2d 896, 897 (Fla. 2d DCA 1998)
(holding that the trial court erred when it overruled an objection to the prosecutor’s
comment that the “only one reason we’re here” was because the defendant had the
right to a jury trial); Johns v. State, 832 So. 2d 959, 962-63 (Fla. 2d DCA 2002)
(stressing that it was improper for the prosecutor to disparage the defendant for
having exercised his right to a jury trial and holding that the defendant was entitled
to a new trial based on that comment, in addition to other improper comments).
Here, the prosecutor asserted that the defense theory was weak, saying “there is not
a lot [Evans] can argue.” He then followed up by saying that no matter how strong
the evidence is against a criminal defendant, he or she still has a right to a jury trial
in America, using the videotape and the “hundred priests” examples.
Although the State contends that the prosecutor was merely referencing a
truism of American constitutional rights, this begs the question why the prosecutor
felt it was even necessary to reference the right to a jury trial in America—not once
but twice, the second time after defense counsel moved for a mistrial. While
referencing this right may at times fall within the “wide latitude” that is given to
attorneys during closing arguments, Merck, 975 So. 2d at 1061, these comments
were similar to those held to be improper in Bell because they were specifically
directed at Evans’ decision to seek a jury trial despite the significant incriminating
- 30 -
evidence against him. Such a comment negatively reflected upon Evans’ exercise
of his constitutional right because it suggested that he wasted the time of the court
and the jury by seeking a jury trial.
Thus, both of the comments were improper, and the trial court abused its
discretion when it overruled defense counsel’s objection to the first comment. We
address the cumulative impact of these errors below.
C. Reliance on Facts Not in Evidence &
Improper Comments that Denigrated the Defendant or Defense
Evans presents multiple preserved and unpreserved challenges to the guilt-
phase closing arguments in which the prosecutor either relied on facts not in
evidence or denigrated the defense. We hold that three of these comments were
improper.
First, he points to a comment regarding homicides committed by family
members, where the prosecutor relied on facts not in evidence to suggest that the
victim was more likely murdered by a family member:
Now, what do you think goes through the police’s head at that point?
Before they know anything else, they would say—common sense
would tell you, she’s got an estranged husband. We better look into
that. There you go. Maybe. Maybe that person did it. Or maybe he’s
a suspect. He’s suspected. Because we need to find out because, as
you all know, most homicides are committed by family members or
friends.
(Emphasis supplied.) The trial court overruled defense counsel’s objection to this
comment.
- 31 -
This Court has explained that “[a] criminal trial is a neutral arena wherein
both sides place evidence for the jury’s consideration; the role of counsel in closing
argument is to assist the jury in analyzing that evidence, not to obscure the jury’s
view with . . . nonrecord evidence.” Ruiz v. State, 743 So. 2d 1, 4 (Fla. 1999)
(emphasis supplied). The statement that, statistically speaking, Beth was most
likely murdered by a family member was an improper comment. The trial court
abused its discretion when it overruled this objection.
Evans also challenges numerous comments that denigrated the defense or
defense attorneys as a whole. In arguing to the jury, the prosecutor stated the
following:
And it’s amazing that [defense counsel] suggests the reason
[Evans] is not guilty is because there is evidence against him. Okay?
Because the shell [casings] are there, he clearly didn’t do it because he
would have picked them up. I mean, only in a world populated by
defense attorneys would that be true.
(Emphasis supplied.) Defense counsel both objected and moved for a mistrial
based upon this comment. Although the trial court did not specifically rule on the
objection, it denied the motion for mistrial.
In addition, the prosecutor implied to the jury that the defense’s theory was
so far-fetched and unbelievable that it would not even be written for a television
series. Like the prior comment, this comment addresses the theory of the
- 32 -
defense—specifically, that someone else may have been responsible for the
murders:
But the defense of this, I suggest, is that somebody else did that
and intentionally left the stuff so the police would believe that [Evans]
did it, that he’s being framed . . . . What a clever frame these people
had that they could—this real murderer, that he could get Beth and
Jerry to go along with this perfect script where they actually called
him Rick and they could scream and do all this stuff. And they had it
on the 911 tape.
And he could kill them and then he could leave the holster and
leave the casings so they would think—because they stole the gun
from Rick earlier so that they would think that Rick did it. I mean,
talk about bad TV. That wouldn’t even make it on TV.
(Emphasis supplied.) Counsel objected and moved for a mistrial. The trial court
overruled the objection and denied the motion.
A prosecutor is not permitted to denigrate the theory of the defense. Jackson
v. State, 147 So. 3d 469, 486 (Fla. 2014). This comment is inappropriate, not only
towards counsel and the theory of the defense, but towards all defense attorneys in
general. In fact, the comment is more egregious than in recent cases where we
have cautioned the prosecution against making disparaging comments, including
when the prosecutor referred to the defense as “grasping [at] straws,” see id., or
asserted that defense counsel must have been “in a different trial” because “[t]heir
arguments make absolutely no sense,” Braddy, 111 So. 3d at 838. See also
Sheridan, 799 So. 2d at 225 (expressing concerns over improper prosecutorial
- 33 -
comments that a defense strategy was “desperate”). Accordingly, the trial court
should not have permitted such comments.
If improper comments are made during closing arguments, the Court
“considers the cumulative effect of objected-to and unobjected-to comments when
reviewing whether a defendant received a fair trial.” Merck, 975 So. 2d at 1061.
Here, the prosecutor (1) made erroneous statements of the law; (2) commented
multiple times on Evans’ decision to exercise his right to a jury trial; (3) relied on
facts not in evidence; and (4) denigrated and ridiculed not only the theory of the
defense, but all defense attorneys.
We next consider the cumulative effect of all of the errors addressed above.
IV. Cumulative Error During the Guilt Phase
Having concluded that multiple errors occurred in this case, we proceed to
consider the cumulative effect of those errors to determine whether those errors are
harmless. See McDuffie, 970 So. 2d 328 (conducting a cumulative harmless error
analysis where multiple preserved errors occurred). Harmless error analysis places
the burden upon the State, as beneficiary of the errors, to prove there is “no
reasonable possibility that the error contributed to” the defendant’s conviction.
DiGuilio, 491 So. 2d at 1138. As we have repeatedly stressed, the harmless error
test “is not a sufficiency-of-the-evidence, a correct result, a not clearly wrong, a
substantial evidence, a more probable than not, a clear and convincing, or even an
- 34 -
overwhelming evidence test” but the “focus is on the effect of the error on the trier-
of-fact.” Id. at 1139.
Here, Evans has identified three preserved errors—(1) improper voice
identification that invaded the province of the jury; (2) unsubstantiated,
incriminating questioning of Evans that implied the defendant stalked the victim’s
current boyfriend; and (3) preserved objections to improper closing arguments,
including criticizing the defendant’s exercise of his right to a jury trial, denigrating
the defendant’s theory of defense, and relying on facts not in evidence. We
consider the effect of the preserved errors cumulatively to determine if they could
be considered harmless beyond a reasonable doubt. In addition, Evans also raises
other unobjected-to improper closing arguments, including misstatements of the
law and other comments that criticized the defense theory and his exercise of his
right to a jury trial—errors which we also consider in this analysis.
In this circumstantial evidence case, Evans presented evidence that he had
an alibi when the murders occurred. Further, he suggested other possible suspects
who may have had the opportunity and ability to kill the victims. Even if the State
had proven that Evans killed the victims, questions pertaining to whether the crime
was a heat-of-passion murder or whether the murders were premeditated or
committed during a felony where hotly contested. These were questions for the
jury to determine, and many of the errors went straight to the heart of these issues.
- 35 -
We conclude that the preserved errors that occurred in this case, when
viewed cumulatively, cannot be considered harmless beyond a reasonable doubt.
Allowing the police officer to identify Evans as the voice in the 911 recording,
despite his prior lack of knowledge of Evans, invaded the province of the jury—an
error that was exacerbated by the fact that the jury knew the witness was the lead
detective in the case. Further, by permitting the prosecutor’s insinuating
questioning of Evans in an apparent attempt to introduce evidence that was not
otherwise admissible, the questions pertaining to Evans’ supposed hiring of a
private investigator embedded the image of Evans as a stalker in the minds of the
jurors. Finally, in closing arguments, the prosecutor made numerous improper
arguments, relying on facts that were not in evidence, making multiple sarcastic
and denigrating comments that disparaged the defendant’s theory of the case and
defense attorneys as a whole, and strongly implied that Evans was wasting the time
of the court and the jurors by requesting a jury trial on a weak defense—comments
that this Court has consistently disapproved. Each of these errors is significant in
its own right. The existence of the unpreserved errors buttresses our conclusion
that Evans is entitled to a new trial.
Accordingly, we vacate Evans’ convictions and sentences and grant him a
new trial.
V. Sufficiency of the Evidence
- 36 -
Although we have concluded that reversible error occurred, this Court must
analyze the sufficiency of the evidence because if there is insufficient evidence on
which to convict Evans of these murders, it is our obligation to vacate the
convictions with directions to grant judgments of acquittal. See McDuffie, 970 So.
2d at 329. Evans asserts that the trial court should have granted his motion for
judgment of acquittal on premeditated first-degree murder because the State
presented insufficient evidence of premeditation and the crimes were “heat of
passion” killings. He also contends that the circumstantial evidence in the case
was consistent with his reasonable hypothesis of innocence. We reject both
contentions.
A trial court’s ruling on a motion for judgment of acquittal is reviewed de
novo. Pagan v. State, 830 So. 2d 792, 803 (Fla. 2002). In moving for a judgment
of acquittal, a defendant “admits not only the facts stated in the evidence adduced,
but also admits every conclusion favorable to the adverse party that a jury might
fairly and reasonably infer from the evidence.” Floyd v. State, 850 So. 2d 383,
395-96 (Fla. 2002) (quoting Lynch v. State, 293 So. 2d 44, 45 (Fla. 1974)). A trial
court should grant a motion for judgment of acquittal in a circumstantial evidence
case
if the state fails to present evidence from which the jury can exclude
every reasonable hypothesis except that of guilt. Consistent with the
standard set forth in Lynch, [293 So. 2d 44], if the state does not offer
evidence which is inconsistent with the defendant’s hypothesis, “the
- 37 -
evidence [would be] such that no view which the jury may lawfully
take of it favorable to the [State] can be sustained under the law.”
[Lynch,] 293 So. 2d at 45. The state’s evidence would be as a matter
of law “insufficient to warrant a conviction.” Fla. R. Crim. P. 3.380.
It is the trial judge’s proper task to review the evidence to
determine the presence or absence of competent evidence from which
the jury could infer guilt to the exclusion of all other inferences. That
view of the evidence must be taken in the light most favorable to the
state. The state is not required to “rebut conclusively every possible
variation” of events which could be inferred from the evidence, but
only to introduce competent evidence which is inconsistent with the
defendant’s theory of events. Once that threshold burden is met, it
becomes the jury’s duty to determine whether the evidence is
sufficient to exclude every reasonable hypothesis of innocence beyond
a reasonable doubt.
Floyd, 850 So. 2d at 396 (quoting State v. Law, 559 So. 2d 187, 188-89 (Fla.
1989)) (emphasis omitted).
This Court has explained that premeditation is not just the intent to kill; it is
“a fully formed conscious purpose to kill. This purpose may be formed a moment
before the act but must exist for a sufficient length of time to permit reflection as to
the nature of the act to be committed and the probable result of that act.” Bolin v.
State, 117 So. 3d 728, 738 (Fla. 2013) (quoting Woods v. State, 733 So. 2d 980,
985 (Fla. 1999)). “Premeditation may be inferred from such facts as ‘the nature of
the weapon used, the presence or absence of adequate provocation, previous
difficulties between the parties, the manner in which the homicide was committed,
and the nature and manner of the wounds inflicted.’ ” Id. (quoting Bradley v.
State, 787 So. 2d 732, 738 (Fla. 2001)).
- 38 -
Contrary to Evans’ contention, the circumstantial evidence in this case was
inconsistent with his reasonable hypothesis of innocence. The record reflects that
on the night of the murders, Evans knew Beth was on a date with another man.
Evidence suggested that he wished to reconcile with Beth, although she had filed a
petition for dissolution of marriage. Someone who resembled Evans was spotted at
the complex walking in the direction of Beth’s residence approximately twenty-
five minutes before the 911 hang-up occurred. The recorded conversation from the
911 call-back reflects the exact conversation and the murders as they occurred,
demonstrating both the length of time in which the crime occurred, the lack of
provocation, and the murderer’s voice and verbal demeanor.
Additionally, the shell casings found near the bodies matched the test-fired
casings recovered from Evans’ safe and Beth called the shooter “Rick.” The facts
of this case, including bringing a firearm to Beth’s house on a night when Evans
knew she was on a date, the lack of provocation, and Evans’ verbal demeanor
during the murder, are inconsistent with a “heat of passion” theory. As this Court
has previously held, “[i]n a circumstantial evidence case in which there is
inconsistency between the defendant’s theory of innocence and the evidence when
viewed most favorably to the State, the question is for the finder of fact to resolve
and the motion for judgment of acquittal must be denied.” Floyd, 850 So. 2d at
397-99 (holding the trial court did not err in denying a motion for judgment of
- 39 -
acquittal in a circumstantial evidence case where the defendant asserted the murder
could have been a “heat of passion” murder because his decision to bring a gun to
the victim’s house was inconsistent with his theory that he shot her in a moment of
uncontrolled rage).
Based upon the circumstantial evidence in this case, we determine that the
trial court did not err in denying the motion for judgment of acquittal regarding the
charge of premeditated murder.
VI. Burglary as the Underlying Felony as a Basis for First-Degree Felony
Murder
We conclude by addressing Evans’ argument that the trial court erred in
denying the motion for judgment of acquittal on first-degree felony murder and
erred in instructing the jury on burglary as the underlying felony as a basis for first-
degree felony murder. We address this issue because, while we hold that Evans is
entitled to a new trial, this issue is likely to arise in the retrial.
According to Evans, the State failed to establish that he lacked consent to
enter Beth’s condominium on the night of the murders and, therefore, the
underlying crime of burglary was not proven. The burglary statute provides as
follows:
(b) For offenses committed after July 1, 2001, “burglary”
means:
1. Entering a dwelling, a structure, or a conveyance with the
intent to commit an offense therein, unless the premises are at the time
open to the public or the defendant is licensed or invited to enter; or
- 40 -
2. Notwithstanding a licensed or invited entry, remaining in a
dwelling, structure, or conveyance:
a. Surreptitiously, with the intent to commit an offense therein;
b. After permission to remain therein has been withdrawn, with
the intent to commit an offense therein; or
c. To commit or attempt to commit a forcible felony, as
defined in s. 776.08.
§ 810.02 (1)(b), Fla. Stat. (2008). The Florida Legislature has specifically stated
that consent is an affirmative defense to the crime of burglary, and “the lack of
consent may be proven by circumstantial evidence.” Aguirre-Jarquin v. State, 9
So. 3d 593, 605 (Fla. 2009) (quoting § 810.015(3), Fla. Stat. (2004)). In
circumstantial evidence cases, the trial court must grant a judgment of acquittal if
the State has failed to present evidence from which a jury could exclude every
reasonable hypothesis except that of guilt. Walker v. State, 957 So. 2d 560, 577
(Fla. 2007).
Here, there is no dispute that Evans was permitted entry into Beth’s
condominium on occasion. For example, he would visit to drop off and pick up his
son. Because Beth is deceased, there is no direct evidence that Evans’ entry that
night was without her consent, other than Molly’s testimony that Evans’ prior
entries into the home without knocking troubled her mother.
Circumstantial evidence, however, establishes a lack of consent because
every other reasonable hypothesis can be excluded. The record reflects that Beth
and Taylor were nude in the master bedroom at the time Evans entered the
- 41 -
residence. It is highly unlikely that Beth would consent to her estranged
husband—or anyone else—entering her residence during such an intimate moment.
While Evans claims that the front door was unlocked, even if true, this would not
translate into an invitation for Evans to enter at that time.
Any purported belief by Evans that he thought consent existed for him to
enter the home that night is equally strained. Evans told Ashby that Beth was on a
date that night. Upon approaching the condominium, Evans would have observed
Taylor’s vehicle in the driveway and realized that Beth had company that night,
most likely her date. Based on the timing of the 911 call and the testimony from
Graham, who asserted somebody resembling Evans was near Beth’s condominium
around 6:45, Evans had sufficient time to observe events transpiring inside Beth’s
residence. Yet, he entered the residence, armed with a gun.
Under these facts, the trial court properly denied the motion for judgment of
acquittal on the felony-murder charge and instructed the jury on burglary as the
underlying felony as a basis for first-degree felony murder.
CONCLUSION
Based on the reasons explained in this opinion, we conclude that cumulative
error occurred that is not harmless beyond a reasonable doubt, thereby
necessitating a new trial. Accordingly, for the reasons stated in this opinion, we
vacate Evans’ convictions and sentences and remand for a new trial.
- 42 -
It is so ordered.
LABARGA, C.J., and PARIENTE, QUINCE, and PERRY, JJ., concur.
LEWIS, J., dissents with an opinion, in which POLSTON, J., concurs.
CANADY, J., dissents with an opinion.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
LEWIS, J., dissenting.
I dissent from the majority opinion and would affirm the convictions of first-
degree murder and sentences of death. In my opinion, the testimony of Detective
Judy that identified Evans as the voice on the 911 call-back recording was
admissible, and the question as to whether Evans had hired a private investigator
was not inappropriate. Further, while I do not dispute that the prosecution made
multiple inappropriate comments during guilt-phase closing statements, I do not
believe that any of these comments, individually or cumulatively, rose to the level
of reversible error. I write specifically to discuss the voice identification and
private investigator claims.
Voice Identification
The identification of a defendant based solely upon his or her voice is
admissible as direct and positive proof of a fact, and the probative value of the
identification is a question for the jury. See Martin v. State, 129 So. 112, 115 (Fla.
1930). Voice identification testimony may be inadmissible on the basis that it
invades the province of the jury where a testifying witness (1) was not an
- 43 -
eyewitness to the crime, (2) does not have a special familiarity with the
defendant’s voice, or (3) is not qualified as an expert in voice identification. See,
e.g., Charles v. State, 79 So. 3d 233, 235 (Fla. 4th DCA 2012) (quoting Ruffin v.
State, 549 So. 2d 250, 251 (Fla. 5th DCA 1989)). Contrary to the conclusory
statement by the majority, Detective Judy did indeed possess a special familiarity
with Evans’ voice and, therefore, the trial court properly allowed him to identify
Evans as the speaker on the 911 call-back recording. Any challenge to this
testimony is directed to weight, not admissibility.
Detective Judy’s familiarity arose from the fact that he listened to known
recordings of Evans’ voice from jail conversations with family members. Further,
the record reflects that he listened to the calls in an investigative capacity. During
a 2010 deposition, when asked if he heard anything “of value” on the jail
recordings with regard to the double homicide, Detective Judy stated that Evans
made no admissions or confessions. However, he observed the following:
[T]he first thing that [Evans] says on the calls is, no names. But from
listening to the tapes and listening to the 911 call, I easily recognize
Rick’s voice. I also recognize the voices of his brothers Glenn,
Rodney and his mother Marcia. There’s no problem there. So I
would think that that would be of value to the case. And also that he’s
always called Rick on all the tapes, when they did use names. And
every now and then Rodney slips and throws in a Rick there, which
very much upsets him.
Thus, by listening to the jail recordings, Detective Judy learned that (1) family
members call Evans by the name Rick; (2) Evans attempted to dissuade them from
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using this name during the recorded calls; and (3) Evans became upset when
family members referred to him as Rick.
This testimony demonstrates that Detective Judy did not listen to the jail
recordings simply to identify Evans’ voice on the 911 call-back recording during
trial. Rather, as the lead detective in the case, he gained a special familiarity with
Evans’ voice in the course of his investigative duties; i.e., to obtain further
evidence which would corroborate Evans’ participation in the double homicide.
Therefore, I would conclude that Detective Judy clearly met the threshold for
admissibility of the identification.
Moreover, Florida courts have consistently allowed law enforcement officers
to identify the voice of a defendant where the officer has gained familiarity with
the voice. In Vilsaint v. State, 127 So. 3d 647, 648 (Fla. 4th DCA 2013), a
detective was permitted to identify Vilsaint’s voice on a jail telephone recording
where the detective had engaged in a brief conversation with him. Id. Based upon
the identification, the trial court admitted the recording, in which Vilsaint made
incriminating statements. During trial, the detective admitted that the
identification was based on approximately thirty-six words, mostly “yes” and “no.”
Id. at 649. Further, while Vilsaint spoke to the detective in English, the recorded
conversation was in Creole. Id. In affirming the trial court’s admission of the
identification, the Fourth District Court of Appeal stated:
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Here, the detective spoke to appellant for approximately ten to fifteen
minutes prior to appellant being put in the cell. He said that based
upon this he could identify appellant’s voice on the tape. This was
sufficient to satisfy authentication, and the trial court did not abuse its
discretion by overruling defense counsel’s objection to the
identification. The jury could determine for itself the credibility of
that identification.
Id. at 650 (emphasis supplied).
Similarly, in Barrientos v. State, 1 So. 3d 1209, 1211 (Fla. 2d DCA 2009), a
law enforcement officer was allowed to testify that the voice recorded on an
electronic listening device worn by a confidential informant was that of Barrientos
based on the fact that the officer had heard his “deep, raspy voice” during a single
encounter that had occurred approximately four years earlier. Counsel for
Barrientos asserted it was implausible that the officer would remember the sound
of Barrientos’ voice under such circumstances. Id. at 1212-13. The Second
District Court of Appeal held that the officer’s testimony was admissible, but
explained that the credibility of that evidence was a jury question. Id. at 1213; see
also Worley v. State, 263 So. 2d 613, 613 (Fla. 4th DCA 1972) (officer who
received anonymous bomb threats was permitted to identify the defendant by voice
as the person who placed the calls; the Fourth District noted that “[t]he credibility
of such evidence is clearly a jury question”).
Even in the cases relied upon by the majority, the district courts have held
that identifications by police officers are permissible where the officers have
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gained a special familiarity with the defendant. In State v. Cordia, 564 So. 2d 601,
601 (Fla. 2d DCA 1990), the Second District granted a petition for writ of
certiorari and quashed the portion of a trial court order that excluded the voice
identification testimony of two police officers. Cordia was an officer who called
the police department of a nearby municipality and submitted a false report that
bombs had been planted there. Id. The officers whom the State sought to present
knew Cordia and had spoken with him in person, over the telephone, and over a
police radio, but they were not the officers who had received the call. Id. at 601-
02. The Second District concluded that because the officers claimed to possess
special knowledge of Cordia’s voice characteristics, they could offer an opinion as
to whether it was his voice on the call. Id. at 602. Conversely, in Ruffin, 549 So.
2d at 251, the Fifth District reversed the defendant’s convictions on the basis that
the identification of Ruffin by three officers as the man on a videotape selling
cocaine was improper. However, the Fifth District specifically noted that the
officers did not possess a special familiarity with Ruffin. Id.; see also Charles, 79
So. 3d at 235 (holding it was error to allow a detective to testify that it was Charles
who appeared on a surveillance video where the detective had no special
familiarity with Charles).
In Day v. State, 105 So. 3d 1284, 1286-87 (Fla. 2d DCA 2013), and Hardie
v. State, 513 So. 2d 791, 792 (Fla. 4th DCA 1987), the district courts also held that
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police officers could offer opinions as to whether the defendants were the
individuals depicted on video recordings committing crimes where the officers had
prior knowledge of or contact with the individuals. The convictions in these cases
were reversed only because the officers identified themselves to the jury as such
and, therefore, rendered it “inconceivable” that the jury would not conclude the
defendants had been involved in other criminal activities. Day, 105 So. 3d at 1288;
Hardie, 513 So. 2d 793-94. Unlike Day and Hardie, however, Detective Judy
became familiar with Evans’ voice through his investigation of these homicides—
not through investigations of any prior criminal activity by Evans, which could
have suggested to the jury that Evans previously had engaged in criminal conduct.
Therefore, Day and Hardie are totally distinguishable and do not support the
proposition that Detective Judy should not have been allowed to identify Evans as
the speaker on the 911 call-back recording.
Consistent with this precedent, it is apparent that the trial court did not
commit an abuse of discretion because the record demonstrates that Detective Judy
possessed a special familiarity with Evans’ voice. See Overton v. State, 801 So. 2d
877, 896 (Fla. 2001) (an abuse of discretion does not occur “unless no reasonable
person would take the view adopted by the trial court”). The probative value and
credibility of Detective Judy’s identification was a question for the jury. Martin,
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129 So. at 115; Vilsaint, 127 So. 3d at 650, Barrientos, 1 So. 3d at 1213; Worley,
263 So. 2d at 613.
Private Investigator
I would further conclude that the trial court properly denied Evans’ motion
for a mistrial and declined to give a curative instruction after the prosecutor asked
Evans whether he had hired a private investigator to discover information about
Taylor. A motion for mistrial should be granted only when the error is so
prejudicial that the entire trial is vitiated. England v. State, 940 So. 2d 389, 401-02
(Fla. 2006).
In my view, this question was not inappropriate and, therefore, no error
occurred. According to the prosecutor, Beth had informed multiple individuals
that Evans had hired a private investigator. Her statements were supported by the
fact that on the morning of December 20th, when she told Evans the name of her
date, Evans informed her that he knew where Jerry Taylor lived and how many
children he had. The fact that Evans confronted Beth with this information
supported her statements that Evans hired someone to investigate Taylor.
Therefore, I would conclude that the prosecutor possessed a good faith basis to ask
this question.
Further, the prosecution was not required to introduce evidence during
rebuttal to demonstrate that Evans had in fact hired a private investigator. In
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Carpenter v. State, 664 So. 2d 1167, 1167 (Fla. 4th DCA 1995), the prosecutor
asked Carpenter, who claimed self-defense, whether he had told a third party that
he shot the victim because he was “sick and tired of the crap.” After Carpenter
denied making the comment, the prosecutor attempted to approach Carpenter with
the written statement of the third party that contained the comment. Id. at 1167-68.
Thereafter, defense counsel objected on the basis of hearsay. Id. at 1168. The trial
court sustained the objection, denied a motion for mistrial, and instructed the jury
that a question is not evidence. Id. The prosecutor did not present the third party
as a witness on rebuttal or attempt to establish that the third party made the
statement. Id.
The Fourth District rejected Carpenter’s assertion that the failure of the
prosecutor to prove the fact insinuated by the question demonstrated that the
prosecutor did not act in good faith. Id. at 1169. Instead, the district court
concluded that such a question is permissible where the trial court is satisfied the
prosecution has a good faith belief that the insinuated fact is true. Id. at 1167.
Further, the Fourth District noted that a respected legal treatise totally disagreed
with the rationale in Marrero v. State, 478 So. 2d 1155 (Fla. 3d DCA 1985), a
decision from which the majority quotes in support of its conclusion that the
private investigator question was inappropriate:
Recently, two District Courts of Appeal have apparently added a new
requirement to the use of prior inconsistent statements. In Marrero v.
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State, it was held for the first time that if a witness denies making the
prior inconsistent statement, counsel must prove that the prior
statement was made. The court interpreted the requirement, that
counsel have a good faith basis before a question could be asked
which impeaches the credibility of a witness, as requiring the actual
introduction of the statement. These opinions did not cite other
authority nor do they logically flow from the “good faith
requirement.” . . . The logical result of the Marrero decision is to
limit any cross-examination regarding credibility to situations in
which counsel has “a witness-room full of witnesses prepared to give
back-up testimony. Such an approach would unduly inhibit
impeachment by imposing overwhelming burdens, delays, and
expenses on showing good faith.”
Carpenter, 664 So. 2d at 1168-69 (quoting Charles W. Erhardt, Florida Evidence, §
608.4 (1995 ed.)). I would conclude that both Carpenter, and the legal treatise
upon which it relied, provide the more logical approach when a prosecutor asks an
insinuating question in good faith, i.e., it is admissible, and the introduction of
evidence to support the question is not required. Therefore, the trial court here
properly denied the motion for mistrial because the prosecutor possessed a good
faith basis to ask the private investigator question.
Additionally, even if the question had not been asked in good faith—which I
believe it was—any error was harmless. First, the hiring of a private investigator is
neither uncommon nor illegal. Contrary to the assertion of the majority, it does not
constitute evidence of premeditation to commit murder or that Evans entered
Beth’s home with the intent to commit a felony. Second, the jury heard Evans
refer to Beth’s companion as “Jerry” on the 911 call-back recording, despite his
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testimony that he did not know the name of the man Beth was seeing that night.
This evidence demonstrated that Evans had somehow acquired Jerry’s name prior
to the 911 call-back. Although one explanation is that Evans did in fact hire a
private investigator, other explanations were posited during closing statements. It
was for the jury to determine which scenario to believe with regard to how the
intruder knew Jerry’s name.
Conclusion
For the foregoing reasons, I would conclude that no reversible error
occurred, and I dissent from the decision of the majority to grant Evans a new trial.
Instead, I would affirm his convictions and sentences of death.
POLSTON, J., concurs.
CANADY, J., dissenting.
I agree with Justice Lewis’s dissent with one exception. On the issue
regarding the prosecutor’s questions to Evans about the hiring of a private
investigator, I would conclude that any error was harmless beyond a reasonable
doubt.
An Appeal from the Circuit Court in and for Pinellas County,
Richard A. Luce, Judge - Case No. 522008CF026829AXXXNO
Howard L. Dimmig II, Public Defender, and Cynthia Jean Dodge, Assistant Public
Defender, Tenth Judicial Circuit, Bartow, Florida,
for Appellant
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Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Christina Zuccaro,
Assistant Attorney General, Tampa, Florida,
for Appellee
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