Tanshanny T. Wright v. State of Florida ( 2019 )

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D18-1956
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TANSHANNY T. WRIGHT,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
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On appeal from the Circuit Court for Leon County.
James C. Hankinson, Judge.
August 16, 2019
LEWIS, J.
Appellant, Tanshanny T. Wright, appeals his convictions for
burglary of a structure with person assaulted (Count 1), criminal
mischief (Count 2), and aggravated assault with a deadly weapon
(Count 3). He argues that the trial court abused its discretion by
instructing the jury to disregard his testimony. We disagree and
affirm.
BACKGROUND
At Appellant’s jury trial, the victim testified that he was
working at Zaxby’s as part of his manager training when he
noticed Appellant leaning over the registers and yelling at Ms.
Godwin, one of the employees. Appellant then walked through the
employee door that blocked the public’s entry and walked down the
cashier aisle. The victim asked Appellant to leave because he was
not supposed to be behind the counter. Appellant initially ignored
the victim, but then started threatening him, saying, “I’ve killed
people before like you.” Appellant pulled out a pocketknife and
threw it at the victim while still yelling and looking directly at him.
The victim was scared and ducked to avoid being hit with the knife,
which landed a couple of feet from him. Appellant then went to
the drive-through window, where he continued to try to attack the
victim and smashed the window. The incident was captured by
the restaurant’s surveillance cameras, without sound, and the
video recording of it was admitted into evidence.
Appellant testified on direct examination that he went to
Zaxby’s to get some keys from Godwin, his child’s mother. When
he asked Godwin for the keys at the register, she told him to go
behind the counter to get them from her. Appellant entered the
back area in order to get the keys, but once there, he had an
altercation with the victim. Appellant pulled a pocketknife
because he was in a rush to see his child and was very frustrated,
and the victim “kind of like put his hands on” him and “there was
another employee coming behind [him].” Appellant had no
intention of hurting anyone with the knife and threw it “to the
wall,” not at anybody, “just out of frustration” because he was
“really agitated trying to get the keys.” Upon leaving the
restaurant, Appellant went to the drive-through where Godwin
worked to get the keys, but the victim slammed the window in his
face, and he, in turn, hit the glass “out of frustration.” Appellant
had two prior felony convictions.
On cross-examination, Appellant testified that Godwin told
him to go behind the counter to get the keys and tried to give them
to him, but the victim did not know that and intervened. Appellant
denied threatening the victim and insisted that he threw the knife
at the wall. The trial court instructed Appellant four times to stop
interrupting and posing questions to the prosecutor, but he
continued to do so, at which point the court told him to be quiet.
In turn, Appellant repeatedly stated that it was his life on the line,
ignoring the court’s continued instruction that he be quiet.
Appellant stated that “[t]his isn’t a burglary,” and when the court
warned him that he would be removed from the stand, he again
commented that it was his life on the line. At that point, the court
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told Appellant to be quiet, instructed the jury to disregard his
comments, and explained that every witness has to be subject to
cross-examination and the State was entitled to answers to its
questions. The court also warned Appellant that if he could not
properly answer questions, it would instruct the jury to disregard
his testimony. Appellant indicated that he would answer the
questions, but before long, he started to make comments when
there were not any questions pending, including that “y’all are
playing with my life. My life is no joke,” “[t]hat’s not burglary,” and
“I didn’t throw that knife at nobody,” over the court’s repeated
instruction that he stop it. Appellant even stated that he was
“done talking” and wished to “sit back down.”
After asking the jury to step out of the courtroom, the trial
court explained to Appellant that he was subject to reasonable
questions from the State and had to answer those questions. The
court twice more warned Appellant that it was going to tell the
jury to disregard his testimony in its entirety if he was not going
to answer the State’s questions, and he responded that he
understood and would answer the questions. Defense counsel did
not want to be heard and declined an opportunity to talk with
Appellant. When the jury returned, cross-examination resumed as
follows:
[STATE]: Now --
[APPELLANT]: I told him I’m coming back there to
get --
[COURT]: Mr. Wright, there is not a question. She’ll
ask you a question. Ms. Surace [prosecutor], play what it
is you want to play and then go back to the podium and
ask your question.
[STATE]: Okay.
(Video played in open court.)
[APPELLANT]: See, I threw it at the wall.
[COURT]: Mr. Wright, be quiet. There is not a
question being asked.
[APPELLANT]: Y’all, this is my life.
[COURT]: Be quiet.
[APPELLANT]: Judge Hankinson - -
[COURT]: I don’t care what - -
[APPELLANT]: -- this is my life.
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[COURT]: -- there is not a question.
[APPELLANT]: Everybody in the jury know[s] this
is not no [sic] burglary.
[COURT]: All right. You step down.
[APPELLANT]: This is not no burglary.
The trial court explained that because Appellant was refusing to
properly answer questions on cross-examination, it was directing
the jurors to disregard his testimony and “consider [they] did not
hear anything he said.”
At sidebar, the trial court explained that it had warned
Appellant three times, “we can’t even get him to wait for a question
to be asked before he starts making additional comment,” and it
did not “know of any other remedy when someone won’t subject
themselves to cross-examination.” When the court invited defense
counsel to suggest “some other remedy,” counsel stated, “I think
when the witness is nonresponsive - - and I’m the first to admit,
Mr. Wright is difficult, . . . you instruct the jury to disregard the
nonresponsive answer, but I don’t think you can erase the normal
answers he gave previous to that.” The court replied that if a
witness for the State refuses to be cross-examined, the remedy is
to strike the testimony and further explained:
That’s essentially what we have is he’s refusing to answer
cross-examination questions in an appropriate fashion.
He wants to say whatever it is he said - - he’s repeated it
at least three times over the court trying to get him to be
quiet - - that this is his life and it was not a burglary. I
mean, those are statements that are totally
inappropriate. And I’ve done my best to try to control the
situation without - - I don’t know what other remedy I
have.
Defense counsel disagreed with the court’s characterization,
asserting that Appellant was not refusing to be cross-examined;
instead, he was merely “showing inappropriate courtroom
etiquette.” Defense counsel suggested that the jury be asked to
leave the courtroom and he be given a few minutes to try to calm
Appellant down, but the court noted, “that’s what I did last time.
That’s why I offered to let you talk to him last time.” The court
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overruled the defense’s objection, explaining that “[Appellant is]
going to comment what he chooses to comment, whether there’s a
question before the jury or not. The State’s not having an
opportunity to cross-examine him because he’s refusing to respond
to their questions. I don’t know of any other remedy.”
The defense rested without presenting further evidence, and
the jury returned a verdict finding Appellant guilty as charged.
Appellant moved for a mistrial or, in the alternative, a new trial
based on the striking of his testimony. The trial court denied the
motion, finding in part as follows:
The record may not accurately reflect, but the defendant
repeatedly continued to talk while the prosecutor and the
Court were trying to talk. The defendant repeatedly
asked questions of the prosecutor and made self-serving
statements unrelated to any question.
The jury was excused at one point for the Court to
admonish the defendant. In this proceeding, the
defendant agreed to properly respond to questions.
However, once the jury was brought back in, the
defendant began making further self-serving statements
before a question could even be asked. The State had a
right to cross examine the defendant. The defendant
effectively refused to be cross examined. . . . The Court
employed the only remedy it felt was available at the
time.
Appellant was adjudicated guilty and sentenced to life
imprisonment as a prison releasee reoffender (“PRR”) on Count 1,
eleven months and twenty-nine days of jail on Count 2, and five
years of imprisonment as a PRR on Count 3, with the sentences to
run concurrently. This appeal followed.
ANALYSIS
A trial court’s decision to restrict the presentation of evidence
is reviewed for an abuse of discretion. McCray v. State, 71 So. 3d
848, 873 (Fla. 2011). A criminal defendant has a fundamental
right to present evidence and to testify on his or her own behalf.
Id. at 872. That right, however, is not absolute and “may, in
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appropriate cases, bow to accommodate other legitimate interests
in the criminal trial process.” Id. at 872-73 (quoting Bowden v.
State, 588 So. 2d 225, 230 (Fla. 1991)). “One area in which the
right to testify may be circumscribed is where a defendant chooses
to disregard the rules of evidence.” Id. at 873 (quoting Booker v.
State, 397 So. 2d 910, 914 (Fla. 1981), that “[a] defendant who
takes the stand as a witness in his own behalf occupies the same
status as any other witness, and all the rules applicable to other
witnesses are likewise applicable to him”). “Nevertheless, a
procedural or evidentiary rule may not be applied in a manner so
as to arbitrarily exclude material portions of a defendant’s
testimony.” Id. The Court further explained:
A criminal defendant's right to testify overlaps with
the trial court's discretionary role in ruling on the
admissibility of evidence. The trial court's authority to
impose restrictions on the presentation of evidence is
recognized by Florida statute, which permits a trial court
to “exercise reasonable control over the mode and order
of the interrogation of witnesses and the presentation [of
evidence]” in order to “[f]acilitate, through effective
interrogation and presentation, the discovery of the
truth” and “[a]void needless consumption of time.” §
90.612(1)(a)-(b), Fla. Stat. (2008). Further, a trial court
has discretion to limit the presentation of evidence that
is either irrelevant or outside the scope of a witness's
knowledge. See §§ 90.403, 90.604, Fla. Stat. (2008).
However, the court's discretion on evidentiary matters
such as these must be constrained by a criminal
defendant's constitutional right to testify.
Id. (holding that the trial court did not abuse its discretion by
terminating the defendant’s narrative testimony on direct
examination after at least fifty minutes where “a large portion” of
the testimony “was completely irrelevant, outside the scope of his
knowledge, or constituted impermissible argument”).
“Cross-examination is the principal means by which the
believability of a witness and the truth of his testimony are tested”;
“the cross-examiner is not only permitted to delve into the witness’
story to test the witness’ perceptions and memory, but the cross-
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examiner has traditionally been allowed to impeach, i.e., discredit,
the witness.” McDuffie v. State, 970 So. 2d 312, 324 (Fla. 2007)
(quoting Davis v. Alaska, 415 U.S. 308, 316 (1974)). “[C]ross-
examination is not confined to the identical details testified to in
chief, but extends to its entire subject matter, and to all matters
that may modify, supplement, contradict, rebut or make clearer
the facts testified to in chief . . . .” Id. at 325 (quoting Boyd v. State,
910 So. 2d 167, 185 (Fla. 2005)). “[W]hen a defendant chooses to
testify in a criminal case, the Fifth Amendment does not allow him
to refuse to answer related questions on cross-examination.”
Kansas v. Cheever, 571 U.S. 87, 94 (2013). “A defendant ‘has no
right to set forth to the jury all the facts which tend in his favor
without laying himself open to a cross-examination upon those
facts.’” Id. (citation omitted).
“Striking all of the testimony of the witness may be the only
appropriate remedy when refusal to answer the questions of the
cross-examiner frustrates the purpose of the process.” Sule v.
State, 968 So. 2d 99, 105-06 (Fla. 4th DCA 2007) (holding that the
trial court did not err by excluding a defense witness’s testimony
because the witness sought to invoke his Fifth Amendment
privilege on material issues that would have prevented full and
fair cross-examination) (quoting Lawson v. Murray, 837 F.2d 653,
655-56 (4th Cir. 1988)); see also Kelly v. State, 425 So. 2d 81, 83-
84 (Fla. 2d DCA 1982) (reversing the defendant’s convictions
because his right to cross-examination was thwarted where the
State’s star witness on direct examination testified that he had
been arrested for soliciting a bribe but denied offering to change
his testimony for money and on cross-examination invoked the
Fifth Amendment and refused to answer questions about the
details of his charge for soliciting a bribe); Victorino v. State, 127
So. 3d 478, 488-89 (Fla. 2013) (finding that defense counsel was
deficient in failing to object and request the exclusion of the
testimony of a State witness who gave direct testimony implicating
the appellant, but refused to be cross-examined about whether he
colluded to blame the appellant, and quoting Kelly that “if ‘a
defendant’s right to cross-examination on such matters [as a
witness’s credibility] is thwarted, the remedy is to strike the
witness’ testimony.’”). Cf. Gamez v. State, 643 So. 2d 1105, 1106
(Fla. 4th DCA 1994) (finding that the trial court erred by excluding
the testimony of the defense witness who, during proffer, provided
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on direct examination testimony relevant to the appellant’s
defense and invoked the Fifth Amendment on cross-examination
when the State asked questions directly related to his involvement
in the crime, which went beyond the matters covered on direct
examination).
In Ellis v. State, 550 So. 2d 110, 110 (Fla. 2d DCA 1989), the
Second District upheld the striking of the defendant’s testimony
where he took the stand to deny committing the crimes and then
invoked the Fifth Amendment and, despite warning of the
consequence, refused to answer questions on cross-examination.
“When Ellis took the stand and denied guilt, he was subject to
proper cross examination by the state. When Ellis refused to
testify, the trial court had the authority to advise the jury to
disregard Ellis’s testimony.” Id.; see also Harris v. State, 236 So.
2d 135, 136 (Fla. 1st DCA 1970) (finding that the trial court did
not err by striking the defendant’s testimony as irrelevant where
he testified on direct examination about matters unrelated to the
crime and his counsel objected on cross-examination to the State’s
question about how he procured the murder weapon on the ground
that it was outside the scope of direct examination).
Federal courts have likewise held that it is proper to strike
the entire testimony of a witness, including the defendant, when
the witness refuses to answer questions on cross-examination.
See, e.g., Williams v. Borg, 139 F.3d 737, 740-42 (9th Cir. 1998)
(upholding the striking of the defendant’s testimony where he
refused to be cross-examined about his prior convictions despite
warnings and finding that the penalty was not arbitrary because
“‘[a]rbitrary’ in this context means without a basis in reason or law.
Here, there was a sensible reason for striking the testimony. A
witness, including a defendant testifying for himself, is supposed
to swear to tell the truth, and then tell it, on cross as well as direct.
A defendant is not allowed to tell the jury his story without
subjecting himself to the risk of perjury prosecution if he lies, and
answering questions designed to expose him as a liar” and it was
not disproportionate because “[t]he purpose of the judge’s sanction
was to make [him] answer the questions about his prior felonies,
so that the jury could use the answers to evaluate his credibility.
The sanction was a measured means to serve an important
purpose”); United States v. Bartelho, 129 F.3d 663, 673-74 (1st Cir.
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1997) (finding that it was not error to strike the defendant’s
testimony where he testified on direct examination that he
supported himself through drug sales, but on cross-examination
refused to answer the government’s question about the identity of
his drug supplier because the question “was not collateral, but
instead directly targeted the credibility of the absence-of-motive
defense [to the robbery charge] he interposed,” even though the
sanction “may have been broader than necessary”); United States
v. Montgomery, 998 F.2d 1468, 1479-80 (9th Cir. 1993) (holding
that the district court did not err by striking the defendant’s
testimony when he refused to answer the government’s questions
about his source because the identity of his suppliers was
reasonably related to his entrapment defense and, thus, was not a
collateral matter, and noting that the court had defined “collateral
matter” as a “matter not reasonably related to or directly affecting
a witness’s testimony”).
Here, Appellant acknowledges that the trial court may strike
the testimony of a defendant who refuses to answer questions on
cross-examination, but maintains that he did not refuse to answer
the State’s questions. In pointing out that he answered numerous
questions posed by the prosecutor, Appellant ignores that as his
inappropriate behavior on the stand escalated, the prosecutor was
unable to continue her questioning. Appellant effectively refused
to answer the State’s questions because his behavior precluded the
State from proceeding with its cross-examination and posing
further questions. Appellant prevented the State from fully
testing his credibility and the truth of his testimony on direct
examination, thereby frustrating the purpose of cross-
examination. It is clear from the record that the State was not
done with its cross-examination, which directly related to
Appellant’s testimony about the incident on direct examination.
The sanction of striking Appellant’s testimony was elicited
solely by his own misconduct, which he had ample opportunity to
correct. The trial court started with lesser sanctions, such as
directing Appellant to stop the inappropriate conduct and
instructing the jury to disregard his improper comments.
Additionally, the trial court warned Appellant three times of the
consequence of striking his entire testimony if his misconduct
persisted. As soon as cross-examination resumed after the third
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such warning, Appellant interrupted the prosecutor and started
making unsolicited, self-serving comments. The State did not get
a chance to ask a single additional question. Despite the trial
court’s efforts to re-gain control over the proceedings, Appellant
repeated that it was his life and that the offense he committed was
not burglary and the jury knew that. It was only then that the
trial court asked Appellant to step down and instructed the jury to
disregard his entire testimony. Given such, we find that the trial
court’s decision to strike Appellant’s testimony was neither
arbitrary nor disproportionate and was well within its discretion.
Furthermore, contrary to Appellant’s contention that the trial
court’s sanction was extreme, the striking of testimony need not be
a last resort. In any event, Appellant does not explain what
alternative lesser sanction would have been effective. This case
does not present a situation where Appellant refused to answer a
single question or inquiry into a particular matter regarding which
his testimony on direct examination could have been excluded.
When the trial court explained that it did not know of any other
remedy, defense counsel suggested the court instruct the jury to
disregard the nonresponsive answer; later on, counsel suggested
he should talk to Appellant to try to calm him down. However, the
trial court had already instructed the jury to disregard Appellant’s
improper comments and offered defense counsel an opportunity to
speak with Appellant, which counsel declined. The court had also
repeatedly warned Appellant that his testimony would be stricken
if his misconduct persisted. Nothing the trial court tried worked.
Instructing the jury—once again—to disregard the improper
comments would not have served the purpose of making Appellant
answer the questions and allowing the State to exercise its right
to fully cross-examine him.
Therefore, the trial court did not abuse its discretion by
striking Appellant’s testimony, and we affirm his convictions and
sentences.
AFFIRMED.
MAKAR and BILBREY, 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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Candice Kaye Brower, Criminal Conflict and Civil Regional
Counsel, and Melissa Joy Ford, Assistant Regional Conflict
Counsel, Tallahassee, for Appellant.
Ashley Moody, Attorney General, and Amanda D. Stokes,
Assistant Attorney General, Tallahassee, for Appellee.
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