FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D19-4655
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MARKQUISE DESHAWN WALLACE,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
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On appeal from the Circuit Court for Escambia County.
Lacey Powell Clark, Judge.
September 2, 2021
M.K. THOMAS, J.
Appellant, Markquise Deshawn Wallace, appeals his
judgment and sentence for two counts of vehicular homicide and
leaving the scene of the accident, two counts of leaving the scene
of the crash involving death, and one count of tampering with
electronic monitoring. Appellant raises the following issues on
appeal: (1) whether the trial court erred in denying Appellant’s
motion for mistrial after the prosecutor made allegedly improper
statements during opening argument; (2) whether the trial court
erred in failing to hold a Richardson 1 hearing; (3) whether the trial
court erred in denying Appellant’s motion for judgment of
1 Richardson v. State,
246 So. 2d 771 (Fla. 1971).
acquittal; (4) whether the trial court erred in denying Appellant’s
motion for mistrial after the prosecutor made allegedly improper
statements during a bench conference; (5) whether the trial court
erred in denying Appellant’s motion for mistrial after the
prosecutor made allegedly improper comments during closing
argument; and (6) whether Appellant’s convictions violate double
jeopardy. Finding merit in only one of Appellant’s arguments, that
his convictions violate double jeopardy, we reverse, in part, but
affirm the remainder of the judgment and sentence.
According to evidence presented by the State during
Appellant’s trial, Appellant rented a white Dodge Challenger and
was the only authorized driver listed on the rental agreement.
Prior to the accident, Appellant had the windows on the vehicle
tinted and was seen driving the vehicle. The Dodge Challenger hit
two pedestrians, an adult female and an approximately seven-
month-old child, causing their deaths. Appellant was wearing a
court ordered GPS monitor at the time of the accident as a
condition of bond in an unrelated case. Appellant’s GPS monitor
showed he was in the area of the accident at the time it occurred.
After the accident, Appellant hid the vehicle. Once the vehicle was
located by law enforcement, Appellant removed his GPS monitor
and fled the area.
Appellant first argues statements made by the prosecutor
during opening argument were improper and warranted a
mistrial. During opening argument, the prosecutor stated, “Based
on the quality of the evidence in this case, the options for the
defense are severely limited. The defense may claim that, yes,
although [Appellant] did all those things, there isn’t a witness to
testify that he got out of the driver’s seat after that crash.”
Appellant claims on appeal that the statement denigrated his
defense. However, this is not the specific argument that was
presented to the trial court; thus, it is not preserved for appeal. See
Bell v. State,
108 So. 3d 639, 650 (Fla. 2013) (“Bell’s
contemporaneous objection to comment 2 was presented on a legal
basis other than that which he now argues on appeal. His objection
therefore failed to preserve the issue for appeal.”); Braddy v. State,
111 So. 3d 810, 836 (Fla. 2012) (holding that to preserve an issue
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for appellate review, the specific legal argument must be presented
to the trial court).
Yet, even if the issue was preserved, reversal is not
warranted. As pointed out by Appellant, it is improper for the State
to denigrate the theory of defense and stating that Appellant’s
options for defense were “severely limited” could be considered
improper. See Evans v. State,
177 So. 3d 1219, 1237 (Fla. 2015);
Jackson v. State,
147 So. 3d 469, 486 (Fla. 2014) (noting it was
improper for a prosecutor to state that defense counsel was “doing
all they can to throw whatever they can against the wall to see
what sticks” and cautioning against the prosecution “making
comments that ridicule a defendant for presenting a defense”).
However, because the statement here was relatively minor and
isolated, it does not require reversal. See
id. at 486–87 (holding
that given the how minor and brief the alleged improper statement
was it did not affect the fairness and reliability of the proceeding
so that confidence in the outcome was undermined).
Appellant next claims the trial court erred by not holding a
Richardson hearing after it was disclosed at trial that one of the
Appellant’s witnesses may have provided an anonymous tip which
identified Appellant as the suspect. At trial, Appellant argued that
a Brady 2 violation occurred when the State attempted to use
evidence of the anonymous tip at trial without first providing the
tip to the defense.
Generally, evidence of anonymous tips is inadmissible as
hearsay. See Postell v. State,
398 So. 2d 851, 854 (Fla. 3d DCA
1981). Here, based on the transcript of the trial and Appellant’s
brief, it is clear that Appellant had knowledge of the anonymous
tip prior to trial, but simply claims he was not provided
information tying the witness in question to the tip. However, at
trial when the discovery issue arose, the State made clear that it
had no specific knowledge that the witness was the tipster,
explaining, “I know what that tip was, and that tip was that
[Appellant] just had his windows tinting and he was the driver.
That was the anonymous tip. The only person that knew that
information is sitting in that chair.” Thus, it does not appear the
2 Brady v. Maryland,
373 U.S. 83 (1963).
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State had the information Appellant claims was erroneously not
provided to him. Because there was no discovery violation here,
the trial court did not err in not holding a Richardson hearing.
Third, Appellant argues the trial court erred in denying his
motion for judgment of acquittal because the case against him is
wholly circumstantial, and the State did not refute his reasonable
hypothesis of innocence. However, the Florida Supreme Court
abandoned the special standard for circumstantial evidence in
Bush v. State,
295 So. 3d 179, 199 (Fla. 2020). This Court has
recognized this change in the law and applied the general standard
for review of motions for judgment of acquittal to circumstantial
cases. See Hathaway v. State,
309 So. 3d 723 (Fla. 1st DCA 2021).
Applying the general standard here, we find there is
competent, substantial evidence to support the verdict; thus, the
trial court did not err in denying the motion for judgment of
acquittal. The evidence shows that Appellant rented the vehicle in
question and was the only authorized driver of the vehicle.
Appellant was seen getting out the driver’s side of the vehicle on
surveillance footage when he was buying window tint a short time
before the accident. No one else was observed. After the accident,
evidence shows Appellant attempted to hide the vehicle and fled
the area after the vehicle was located.
Next, Appellant complains that during a bench conference,
the prosecutor made improper statements, which warranted a
mistrial. Appellant cites to no case law supporting his argument
that statements made to the trial court, outside the presence of the
jury, could warrant a mistrial, and we will not make that finding
here. A judge is placed in a position in which he or she may hear
inflammatory, proffered testimony or arguments that are not
presented to the jury. In such situations, a judge is required to
disregard items not in evidence. Here, the trial court assured
Appellant that it was capable of not considering the prosecutor’s
arguments when sentencing Appellant. Therefore, the trial court
did not err in denying Appellant’s motion for mistrial.
In Appellant’s fifth issue, he claims statements made by the
prosecutor during closing argument suggested Appellant should
have testified and were, thus, improper. The State began its
rebuttal closing argument as follows: “Why? I was listening
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throughout the entirety of [defense], an esteemed member of our
local Bar, for an explanation of why, and I never heard one. That’s
because there is no explanation other than he did it. The Defense
is choosing to ignore all of the defendant’s actions.” Appellant is
correct that it is improper for a prosecutor to comment on a
defendant not testifying. See Bell v. State,
108 So. 3d 639, 647 (Fla.
2013) (holding it is impermissible to comment on a defendant’s
failure to testify or mount a defense). However, when the
statement here is read in context, it shows the prosecutor was not
commenting on Appellant not testifying, but rather, the State was
asking what the explanation would be for Appellant’s actions if he
were not driving the vehicle at the time of the accident. Such a
comment is not improper; thus, we find the trial court did not err
in denying Appellant’s motion for mistrial.
Lastly, Appellant argues his two convictions for vehicular
homicide and leaving the scene of the accident and two convictions
for leaving the scene of the crash involving death violate double
jeopardy. The State concedes error on this issue. Because the
charges for vehicular homicide encompass the crime of leaving the
scene of the crash involving death, Appellant’s convictions for
leaving the scene of the crash violate double jeopardy. See Partch
v. State,
43 So. 3d 758, 760 (Fla. 1st DCA 2010) (holding that where
the charges are not based on distinct acts, a court must determine
whether the offenses satisfy the same elements test). It is not
enough that Appellant was not sentenced for these counts. See
Wehan v. State,
673 So. 2d 550, 553 (“The error is not rendered
harmless simply because no sentence was imposed for the lesser
included offenses and the lesser included offenses were not score
on the guideline scoresheet.”). Rather, the proper remedy is to
vacate the verdict of guilt as to one of the offenses. See Bolding v.
State,
28 So. 3d 956, 957 (Fla. 1st DCA 2010). Therefore,
Appellant’s convictions for two counts of leaving the scene of a
crash involving death must be vacated.
Accordingly, the judgment and sentence are AFFIRMED in
part, REVERSED in part, and REMANDED for further proceedings
consistent with this opinion.
B.L. THOMAS and OSTERHAUS, JJ., concur.
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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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Jessica J. Yeary, Public Defender, Tallahassee; Luke Newman of
Luke Newman, P.A., Tallahassee; and Ross A. Keene of Ross
Keene Law, P.A., Pensacola, for Appellant.
Ashley Moody, Attorney General, and Damaris E. Reynolds,
Assistant Attorney General, Tallahassee, for Appellee.
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