ANTHONY MOSCATIELLO v. STATE OF FLORIDA , 247 So. 3d 11 ( 2018 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
ANTHONY MOSCATIELLO,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D15-3695
[June 6, 2018]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Ilona Maxine Holmes, Judge; L.T. Case No. 05-015875
CF10A.
J. Rafael Rodriguez of the Law Offices of J. Rafael Rodriguez, Miami,
West Palm Beach, for appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale
Surber, Assistant Attorney General, West Palm Beach, for appellee.
WARNER, J.
This is an appeal from appellant’s conviction for premeditated murder
and conspiracy to commit first degree murder. Although appellant raises
many issues, one requires reversal. The trial court allowed into evidence,
over the objection of the defense, the testimony of a witness at a bond
hearing for appellant, where the witness had died subsequent to the bond
hearing. In his testimony, the witness related statements by John Gurino
which amounted to an admission that Gurino was the shooter in the
murder and that he “got the work from Moscatiello [appellant].” We
conclude that this statement—that Gurino “got the work from Moscatiello,”
which featured prominently in both the opening and closing arguments of
the State, was inadmissible hearsay. Because the State has not shown
that it was harmless beyond a reasonable doubt, we must reverse.
The Murder
On February 6, 2001, Gus Boulis, a successful businessman, left his
office in Broward County around 9 p.m. As he was heading south on
Miami Road, a car stopped in front of him. Boulis stopped his vehicle, and
another car pulled in behind Boulis so that he was boxed in. An innocent
bystander was in a third car that stopped behind the first two cars. A red
Jetta pulled up behind the bystander’s car. While they were all stopped
in a row, a black Mustang came from the opposite direction, and pulled
up next to Boulis’s vehicle. Someone in the Mustang fired several shots,
killing Boulis. After the shooting, the bystander noticed that the red Jetta
behind him drove off the road around him, and then took off. Later, he
saw the red Jetta circling the block, perhaps looking for him. The
bystander memorized the partial tag number of the temporary tag on the
Mustang and, when he got home, called 911. Testimony revealed that both
the Mustang and the Jetta were owned by Anthony “Little Tony” Ferrari, a
co-defendant in this case.
The next day Dwayne Nicholson, an employee of Ferrari, called to report
his knowledge about the murder. Eventually, he gave several statements
implicating both Ferrari and Anthony “Big Tony” Moscatiello (appellant) in
the murder. Thus, from 2001, the authorities knew of evidence connecting
appellant to the murder. It took an additional four years for them to gather
all the evidence and indict him, along with Ferrari and James Fiorillo,
another employee of Ferrari, for the murder.
The State’s theory of the case was that Moscatiello and Ferrari were
hired by Adam Kidan to protect him from Boulis, from whom Kidan had
purchased a business. For reasons somewhat unclear, Moscatiello
determined that Boulis needed to be killed so that Moscatiello and Ferrari
would not lose the protection payments from Kidan. The complicated story
commences with the sale of the business from Boulis to Kidan. While there
was some documentary evidence supporting meetings and payments, the
direct testimony linking Moscatiello to the crime all came from witnesses
each of whom received substantial benefits for their testimony.
The Prelude to the Murder
The victim, Gus Boulis, had become successful as the owner of Miami
Subs sandwich shops before founding SunCruz Casinos, a fleet of
gambling casino boats. Eventually, the Attorney General’s office advised
Boulis that he had to sell SunCruz because he wasn’t an American citizen
when he started the business. As a result, Boulis sold the business to
Adam Kidan and Jack Abramoff. Boulis received $23 million in cash and
was supposed to get another $20 million, which he never received. The
business relationship between Boulis and Kidan soured. Kidan was afraid
that Boulis might harm him in retaliation for lack of payment, so he
reached out to his connections in New York, and asked Moscatiello to
2
assist him. Kidan wanted the word out that he, Kidan, had “connections.”
Moscatiello introduced Kidan to Ferrari in Miami to provide security or
protection. Ferrari bragged to people that he was John Gotti’s nephew and
head of the Gambino family in Florida. 1 For this protection, Kidan entered
into a deal with Moscatiello for Moscatiello to be a “consultant” supplying
beverages and paper goods for the gambling casino boat. Through
Ferrari’s business in Miami, Ferrari would arrange for Kidan’s protection.
Kidan paid Moscatiello monthly for the protection.
In November 2000, Moscatiello flew to Miami. Ferrari brought along
Dwayne Nicholson and several other bodyguards as security to pick up
Moscatiello from the airport. Ferrari, Moscatiello, and Nicholson rode in
one vehicle, while the rest of the security team rode in others. While they
were driving to a hotel, Nicholson testified that Ferrari and Moscatiello
discussed the fact that they did not want to pay Boulis the extra money he
was owed on the sale of Sun Cruz. Ferrari responded that Nicholson would
take care of Boulis. Moscatiello turned to Nicholson and said, “Now, you
know what he means . . . we need Gus killed. Are you able to do it?”
Nicholson did not say anything, because he thought he would be killed if
he didn’t agree. Ferrari had previously asked him whether he would kill
Boulis, and Nicholson had declined.
The next day, Ferrari and Nicholson picked up Moscatiello and drove
to the SunCruz office to show Nicholson the office, the ships, and the
vehicle that Boulis drove. Moscatiello said that Boulis had to be taken
care of prior to an upcoming court date. After Moscatiello was dropped
off, Nicholson again complained to Ferrari that he wasn’t going to kill
Boulis. Ferrari told him just to surveil Boulis, and he would figure out
later what to do.
Meanwhile, Kidan became frustrated with his relationship with Ferrari
and his protection service. While Kidan was out of the country, he
terminated his relationship with Ferrari. That same day, Boulis was killed.
The Murder and its Aftermath
James Fiorillo was another assistant to Ferrari, who was more like a
son to him. Fiorillo did multiple errands for Ferrari and other tasks. On
the day of the murder, Fiorillo arrived at Ferrari’s home in a black Mustang
belonging to Ferrari, which Fiorillo frequently drove. He then switched
vehicles with Ferrari. Ferrari drove away, and Ferrari’s girlfriend followed
in his red Jetta. Fiorillo also had access to several of Ferrari’s phones.
________________________________________________________________________
1 John Gotti was the boss of the Gambino crime family in New York.
3
Although the innocent bystander witnessed the murder, he could not
identify anyone in any of the vehicles. The partial license number he
obtained did match up to the black Mustang. Thus, no independent
witness testified as to who was present at the scene. However, Fiorillo
knew about the murder and what occurred.
Fiorillo went to Ferrari’s home after the murder. Ferrari gave him a bag
containing a gun, which Fiorillo disposed of. Fiorillo also drove the
Mustang to a repair shop. The next day, Fiorillo met with Ferrari and
Moscatiello at a hotel. Moscatiello told Fiorillo to drive to New York and to
report the Mustang as stolen, which he did. In New York, Fiorillo met with
Moscatiello. When Moscatiello asked for the details of the events leading
up to the murder and the murder itself, Moscatiello became very angry.
He told Fiorillo to stay in New York, and Ferrari’s girlfriend allowed Fiorillo
to stay with her for a week there, after which he stayed in a hotel. Fiorillo
worked for Moscatiello for a while and then returned to Florida sometime
in April. Ultimately, Fiorillo was arrested and charged with conspiracy to
commit murder for which the State was seeking the death penalty, as the
State originally believed that he was the shooter. He reached a plea deal
in which he agreed to testify against Moscatiello and Ferrari in exchange
for a six-year prison sentence.
When Kidan returned to Florida after the murder, he met Moscatiello
in his hotel room and asked if he knew what happened. Moscatiello said,
“Yes, it was very unfortunate, it wasn’t supposed to happen that way.”
Moscatiello admitted that it was his decision. He explained that the plan
was to kidnap Boulis, kill him, and bury his body on a farm where he
would not be found for years. Kidan asked who was involved, and
Moscatiello told him that the shooter came down from New York and went
home on Amtrak. Fiorillo drove the car, and Ferrari was in another car.
Kidan knew that a Mustang had been used in the murder and he knew
Fiorillo had one, so he asked Moscatiello if that was the same car.
Moscatiello told him it was the same Mustang. Kidan complained that
that car should not have been used.
Kidan had made significant payments to both Moscatiello and Ferrari
for protection. In June 2001, Kidan made a last payment, and then
SunCruz went into bankruptcy. Later, Kidan was being investigated by
the FBI in connection with the murder. In April 2004, Kidan met
Moscatiello in New York and explained that he was being investigated by
the government. He told Moscatiello that he thought someone was
cooperating with the government. Kidan asked about the shooter, and
Moscatiello told him that the shooter had died after he was shot in a deli
4
in Boca Raton. Kidan googled the incident and discovered that the man
who had been shot was named John Gurino. 2
Kidan was convicted of wire fraud in connection with the SunCruz
purchase and sale and went to prison in 2006. He contacted law
enforcement about cooperating in the Boulis murder investigation in 2006,
and his original sentence of five years was cut to twenty-seven months.
He testified against Moscatiello at the trial, giving details of the SunCruz
sale and Moscatiello’s activities.
Nicholson Contacts Law Enforcement and Investigation Commences
The day after the murder, Nicholson was watching the news and saw
that Gus Boulis had been killed, and police were looking for a black
Mustang. Nicholson knew that Fiorillo usually drove the Mustang. He
was afraid that he might be killed next, so he called Crime Stoppers. He
was put in touch with law enforcement, and gave a statement to Fort
Lauderdale police on February 9, 2001.
Police asked Nicholson to call Ferrari by phone, which they attempted
to record without success. Then police asked him to meet with Ferrari
while wear a listening device hidden inside a beeper. When Nicholson met
with Ferrari, Ferrari grabbed the beeper and asked about it. Nicholson
told him his girlfriend had given it to him to keep track of him.
Thereafter, Nicholson tried to avoid Ferrari, although he was still owed
money for his work for Ferrari. Around Memorial Day, another of Ferrari’s
assistants, Ben Potter, came by Nicholson’s house to tell him that Ferrari
wanted to speak to him. Nicholson, Fiorillo, and Potter drove to Ferrari’s
mother’s house in Venice, Florida. On the way, Fiorillo asked Nicholson if
he (Nicholson) was going to kill him (Fiorillo). Nicholson responded that
he thought Fiorillo and Potter were going to kill him (Nicholson). At
Ferrari’s mother’s home, Ferrari told Fiorillo that he was “running his
mouth” too much, referring to Fiorillo’s recent trip to New York.
Sometime after Memorial Day, Nicholson confronted Ferrari about
money Ferrari still owed him for his services. Ferrari called Moscatiello
about the money, and put the call on speaker phone. When Ferrari asked
him about the money, Moscatiello answered, “F*ck those n****rs, just kill
them.” Nicholson never got his money.
________________________________________________________________________
2 This was later confirmed, through testimony at trial, from the man who shot
Gurino at the deli.
5
Nicholson was never charged with any crime as a result of his
interactions with Ferrari and Moscatiello. He received a six figure Crime
Stopper’s reward for his assistance. He also testified against Moscatiello.
The State’s Other Evidence Connecting Moscatiello to the Murder
In 2007, several years after Moscatiello and Ferrari had been charged,
Joseph Marley wrote a letter to the state attorney offering information
regarding Moscatiello. Marley had been in custody in the county jail for
over two years on a drug trafficking charge. His crimes could have resulted
in a seventy-five year sentence. Looking for leniency, he negotiated a plea
in exchange for his information and testimony, which allowed him to be
sentenced to time served and to be released upon pleading to the charges.
Marley was a limousine driver in New York, and would hang out at
clubs owned by John Gotti. He would see Moscatiello at those clubs.
Marley used to work for Anthony and Michael Gurino, who were cousins
of John Gurino, who became the suspected gunman in the Boulis murder.
About six weeks after the Boulis murder, Marley ran into John Gurino at
the Coconut Creek casino. Gurino kissed him and said he (Gurino) had a
new nickname, “SunCruz Kid.” At first Marley didn’t know what he was
talking about, and Gurino said “Don’t you read the papers?” Then it
dawned on Marley that he was referring to the murder of Gus Boulis,
which he had seen reports of on television. Marley asked, “Was that you?”
Gurino looked at him with a smirk, which Marley interpreted as a “yeah.”
And, Marley said, “What were you doing, shaking him down?” Gurino
laughed and said, “Something like that. I got the work from Moscatiello.”
In 2003, John Gurino was himself murdered in a Boca Raton deli.
The State also read the testimony of Nick DiMaggio, who was in a
federal witness protection program and unavailable. He had testified in
prior proceedings involving the Boulis murder. DiMaggio was a lifetime
criminal and had known Moscatiello his whole life. He also knew John
Gurino, who was his best friend. In 2000 or 2001, Moscatiello had asked
DiMaggio to stop by his house in New York. During their meeting,
Moscatiello offered him $100,000 to go to Florida and kill Gus Boulis.
Moscatiello explained that Boulis was making a lot of problems with a
gambling business and a lot of money was at stake. DiMaggio was insulted
because he was being asked to kill someone for money rather than for
“principle.” He left the meeting and told Gurino about the offer. Later, he
became aware that Boulis was in fact killed when he received a news article
about the murder, sent to him by Gurino. A few weeks later, DiMaggio
spoke with Moscatiello in New York, and Moscatiello told him “he took care
of it.” However, Gurino never told DiMaggio that he had shot Boulis, and
6
DiMaggio would have been shocked if he did, as Gurino lived by the same
principles as DiMaggio. DiMaggio testified as part of a plea negotiation,
which required him to testify in this case and others. For his testimony in
various proceedings, including this one, the government did not charge
him with multiple crimes, which included murders. He was held in
custody for nearly seven years, but at sentencing, he received a sentence
of only a year. He was released to the witness protection program.
Finally, Paul Brandreth, a convicted felon in federal prison for a drug
crime and for second degree murder in a state prosecution, testified that
he was approached by Ferrari to kill three people, including a black man
(Nicholson) and a woman (Ferrari’s girlfriend), both of whom lived in South
Florida, and a person in a hotel in Yonkers (Fiorillo), for whom law
enforcement was looking. Ferrari needed Brandreth to get to Fiorillo before
the investigators did. Brandreth travelled to New York and stayed with
Fiorillo, ostensibly for Fiorillo’s protection. When Brandreth arrived, he
was picked up at the airport by Moscatiello. Moscatiello said to him, “so
you’re the one, kid, huh? You’re the one, nothing but a f*cking hat trick
for you. Nothing but a Trifecta.” Brandreth knew he was referring to the
three people Brandreth was supposed to “whack.” He asked Moscatiello
for his money. Moscatiello replied, “What do you mean? I thought the
other Tony took care of you.” Brandreth told him he needed a “paintbrush”
which was code for a gun. Moscatiello said that he didn’t have a gun, but
he had “a shotgun from a fed job he did one time.” Moscatiello told him to
wait for a phone call, but not to kill Fiorillo at the hotel because he owned
the hotel. Brandreth stayed with Fiorillo, but never got a phone call or
gun. He returned to Florida. In 2012, he was visited by two officers while
he was in prison for murder and federal charges. In his state murder case,
prosecutors agreed to have his state sentence terminate when his federal
sentence terminated in exchange for his testimony in this case,
significantly reducing his prison time.
The State rested, and Moscatiello did not call any witnesses.
Nevertheless, the defense had extensively cross-examined the witnesses
and impeached the witnesses in significant respects. Throughout the trial,
the defense claimed that all of the witnesses were lying and making up
stories to avoid their own prosecutions. The jury deliberated for two days
and then found Moscatiello guilty of murder and conspiracy to commit
murder. The court sentenced him to life imprisonment on the murder
conviction and to thirty years concurrent on the conspiracy to commit first
degree murder. He now appeals.
Moscatiello argues that the court erred in admitting the testimony of
Joseph Marley, which had been given at a bond hearing, claiming that it
7
was inadmissible hearsay and a violation of the Confrontation Clause.
Marley, who was deceased by the time of trial, had earlier testified at a
bond hearing regarding the conversation with John Gurino, who was also
deceased by the time of trial. The trial court admitted the testimony under
section 90.804(2)(a) and (c), Florida Statutes (2013), under the former
testimony and statement against interest exceptions to the hearsay rule.
Evidentiary rulings are reviewed for abuse of discretion as limited by
the rules of evidence. Nardone v. State, 798 So. 2d 870, 874 (Fla. 4th DCA
2001). Whether evidence is hearsay or admissible under an exception to
the hearsay rule is a question of law subject to de novo review. Browne v.
State, 132 So. 3d 312, 316 (Fla. 4th DCA 2014); Powell v. State, 99 So. 3d
570, 573 (Fla. 1st DCA 2012).
Moscatiello claims that the testimony of Marley constituted hearsay
within hearsay, as both Marley and Gurino were unavailable to testify.
Section 90.805, Florida Statutes, allows the admission of hearsay
statements within hearsay, as long as “each part of the combined
statements conforms with an exception to the hearsay rule as provided in
s. 90.803 or s. 90.804.” We examine whether Marley’s testimony can be
allowed under the former testimony exception of section 90.804(2)(a),
Florida Statutes (2013), and whether Gurino’s statements are admissible
as statements against interest under section 90.804(2)(c), Florida Statutes
(2013).
Moscatiello concedes that testimony at a bond hearing may qualify as
former testimony. See Petit v. State, 92 So. 3d 906, 912-13 (Fla. 4th DCA
2012); Roussonicolos v. State, 59 So. 3d 238, 241-43 (Fla. 4th DCA 2011).
However, he claims that he did not have the same opportunity or motive
to question Marley at the bond hearing as he would have at trial. We
disagree.
Florida Rule of Evidence 90.804(2)(a), Florida Statutes (2013), permits
the use of former testimony “if the party against whom the testimony is
now offered . . . had an opportunity and similar motive to develop the
testimony by direct, cross, or redirect examination.” As we noted in
Roussonicolos, at a bond hearing, “the purpose of the hearing [is] for the
court to consider whether [the defendant] should be released and, if so,
what conditions should be imposed pending his final [] trial.” 59 So. 3d at
242; see also Petit.
In this case, Moscatiello had requested an Arthur hearing seeking his
release pending trial. See State v. Arthur, 390 So. 2d 717 (Fla. 1980). One
of the issues involved in such a hearing is that the State must prove that
8
“the proof of guilt is evident or the presumption great.” Id. at 717. Where
the State presents evidence of the defendant’s guilt, but the evidence is
contradicted in material respects, the State has not met its burden. See
State v. Perry, 605 So. 2d 94, 99 (Fla. 3d DCA 1992). In order to secure
release, the defendant has every incentive to cross-examine the witnesses
to show conflicts and contradictions in the evidence. Id. at 97-98.
Moscatiello had a “similar motive” at the bond hearing, as he would have
at trial, to discredit the witness, and he had the opportunity to cross-
examine the witness. That he may not have done so does not render the
testimony inadmissible, as he was given the opportunity for effective cross-
examination. See Petit, 92 So. 3d at 912. Actually, the defense attorney
did extensively cross-examine Marley and developed substantial
discrediting information, including the fact that Marley had come forward
to the prosecution to reduce his own charges. Therefore, the Arthur
hearing satisfied the requirement of section 90.804(2)(a).
Further, we reject Moscatiello’s contention that the trial court must also
make a preliminary finding that the testimony is trustworthy before
admitting it. No such requirement is contained within section
90.804(2)(a), unlike section 90.804(2)(c), where the admissibility of a
statement against penal interest is conditioned on its trustworthiness.
Where the witness can be challenged by cross-examination to ferret out
inconsistencies and contradictions, the search for the truth has occurred.
The statements of Gurino, to which Marley testified, are also hearsay,
and Moscatiello claims they did not fall within the statement against
interest exception to the rule. The trial court found that they qualified as
statements against penal interest, and thus, would have been admissible
under section 90.804(2)(c). That rule allows the admission of certain
statements of a declarant when the declarant is unavailable, as Gurino
was because of his death. These include:
(c) Statement against interest.--A statement which, at the time
of its making, . . . tended to subject the declarant to liability
or to render invalid a claim by the declarant against another,
so that a person in the declarant’s position would not have
made the statement unless he or she believed it to be true.
In Brooks v. State, 787 So. 2d 765 (Fla. 2001), our supreme court
considered this rule in connection with a non-testifying co-defendant’s
confession which also inculpated the defendant. In discussing the rule,
the court said:
9
“The reliability of these statements [against penal interest]
flows from the fact that they are against the interest of the
declarant at the time when they are made [as well as the
presumption that a] person does not make statements which
will subject him or her to civil or criminal sanctions unless
they are true.” Charles W. Ehrhardt, Florida Evidence § 804.4
(2000 ed.); see also Williamson v. United States, 512 U.S. 594,
599, 114 S. Ct. 2431, 129 L. Ed. 2d 476 (1994) . . . .
Id. at 774 (first bracket added; second bracket in original). The court then
provided the following guidance: “Therefore, assuming the other
requirements of section 90.804(2)(c) are met, it follows that a nontestifying
codefendant or accomplice’s confession or inculpatory statement which
also implicates the defendant should only be admitted if it ‘sensibly and
fairly can be redacted to include only those statements which are solely
self-inculpatory.’ Franqui v. State, 699 So. 2d 1332, 1339 (Fla. 1997).” Id.
at 775. In other words, only those self-inculpatory portions of a declarant’s
statement meet the requirements of section 90.804(2)(b). Thus, those
portions which are non-self-inculpatory are not admissible pursuant to
this section. See Williamson, 512 U.S. at 599-600 (holding that a similar
federal rule applies narrowly only to those declarations or remarks in a
confession that are individually self-inculpatory).
Following Brooks, several courts have held that non-self-inculpatory
statements within a witness’s narrative are inadmissible as statements
against interest, where they implicate another in the crime. The court in
Antunes-Salgado v. State, 987 So. 2d 222, 226 (Fla. 2d DCA 2008), held
“while [the appellant’s] codefendants’ statements were partially self-
inculpatory, the State also presented those portions of the statements that
implicated Antunes-Salgado and that shifted the majority of the guilt to
him. These portions of the statements were inadmissible under section
90.804(2)(c) and Lilly [v. Virginia, 527 U.S. 116, 119 S. Ct. 1887, 144 L.
Ed. 2d 117 (1999)] and Williamson . . . .”
In Perez v. State, 980 So. 2d 1126, 1132 (Fla. 3d DCA 2008), a non-
testifying declarant (Laurencio) admitted to a friend (Martin) that he had
committed the robbery in question, and “The Fish” accompanied him. The
Fish was a person associated with the defendant, Perez, and was a
material link in State’s case against Perez. Id. at 1129. Relying on
Williamson and Brooks, the court agreed that the first part of the statement
that Laurencio had committed the robbery was admissible as a statement
against interest but the statement about the Fish being involved was not:
10
The collateral statement by Laurencio to Martin about “The
Fish” was not made against the declarant’s penal interest
because it was not inculpatory as to Laurencio. The statement
that “The Fish” participated in the robbery was hearsay and
does not fall within an exception to the rule. Therefore,
Laurencio's statement concerning “The Fish’s” involvement in
the robbery should have been excluded from evidence before
the jury and the defendant’s objection should have been
sustained.
Id. at 1133; accord State v. Crofoot, 97 So. 3d 866, 868 (Fla. 1st DCA 2012).
On the other hand, our court has decided two cases which held
statements admissible in similar factual circumstances, but did not
discuss whether portions which were non-self-inculpatory should be
redacted. In Machado v. State, 787 So. 2d 112 (Fla. 4th DCA 2001), the
State charged Machado and Olivera with robbery and murder, which
involved four assailants, including Machado’s uncle, Enrique, who was
killed at the scene of the murder. Id. at 113. Enrique’s son testified for
the prosecution and related a conversation that Olivera had with him at
his father’s funeral, in which Olivera bragged that the police could not
catch him. Id. In a later conversation with the son, Olivera explained that
four men (Olivera, Enrique, the defendant Machado, and a fourth man)
had ambushed the victim and the victim had shot at them. Id. On appeal,
defendant Machado argued that Enrique’s son’s testimony, repeating
Olivera’s statements, was inadmissible hearsay. Id. The court rejected
that argument, finding that a non-testifying accomplice’s statement
against penal interest was admissible as a hearsay exception, if the
circumstances showed trustworthiness. Id. at 113-14. Because Olivera’s
statement, made in a personal setting, described how Enrique died and
how Olivera had evaded arrest, without showing any intent to shift blame,
it was trustworthy. Id. at 114. “A non-testifying accomplice’s statement
against penal interest is admissible as a hearsay exception if corroborating
circumstances show the statement has ‘particularized guarantees of
trustworthiness.’” Id. at 113, quoting Lilly v. Virginia, 527 U.S. 116, 136-
37, 119 S. Ct. 1887, 144 L. Ed. 2d 117 (1999). 3 The opinion in Machado
did not discuss whether any portion of the statement that was non-self-
inculpatory should have been redacted, as not meeting the requirements
________________________________________________________________________
3 In Lilly, however, the Court dealt with a challenge to such a statement as
violating the Confrontation Clause, not whether it is was admissible as a
statement against interest. Thus, the test from Lilly requiring a guarantee of
trustworthiness was for those purposes. Here, the statements of Gurino were
not testimonial, and thus, the Confrontation Clause did not apply.
11
of the section 90.804(2)(c) exception. That portion of the statement
implicating Machado also appears to have been inextricably intertwined
with the explanation of the crime. Also, Machado was also decided before
our supreme court issued Brooks.
We considered a factually similar case in Brown v. State, 69 So. 3d 316(Fla. 4th DCA 2011). There, the defendant Brown was charged with
robbery and murder. Id. at 317. The trial court allowed a witness to
testify, over objection, to a conversation he had with one of Brown’s co-
defendants. Id. at 317-18. The witness was talking to the co-defendant
in the neighborhood when the co-defendant implicated himself as well as
defendant Brown and the other co-defendant in the crimes. Id. at 317.
The co-defendant explained to the witness that they had robbed the
victims and then shot them after they did not comply with directions. Id.The objection to the statements appeared to center around their
trustworthiness, as both the trial court and our court relied on Machado
in concluding that the statements were trustworthy because, among other
reasons, the co-defendant had not attempted to shift blame and the
statement was made to a friend, not to authorities. We distinguished
Brooks on the ground that it was factually dissimilar. Id. at 320. In
Brooks, the non-testifying co-defendant’s statement on the whole tended
to shift blame and was made to authorities, making it self-serving and
lacking in trustworthiness. Id. It does not appear from the Brown opinion
that any argument was made that those portions of the statement which
were non-self-inculpatory should have or could have been redacted.
Because the argument was not made in Machado and Brown that the
statement should be redacted to eliminate those portions which are not
statements against interest, we apply Brooks. Where the State is seeking
to admit the out of court statements of co-defendants or accomplices
pursuant to the requirements of section 90.804(2)(c), and some of the
statements also implicate the defendant, they should not be admitted
where they “sensibly and fairly can be redacted to include only those
statements which are solely self-inculpatory.” Brooks, 787 So. 2d at 775
(citing Franqui, 699 So. 2d at 1339).
The statements in Machado and Brown appear to be so intertwined with
the statement against penal interest of the co-defendant that they may not
have been able to be redacted. In this case, however, we conclude that
they can be, and should have been, redacted. Marley’s testimony that
Gurino called himself the “SunCruz kid” was admissible as a statement
against penal interest. But Gurino’s statement that “I got the work from
Moscatiello” implicated another defendant, and was not solely self-
inculpatory. It did not satisfy the requirements of section 90.804(2)(c) or
12
the requirements of Brooks. It could have been omitted and still “sensibly
and fairly” provided the information from Gurino as to his participation in
the crime without implicating Moscatiello. The trial court erred in
admitting this statement at trial.
State v. DiGuilio, 491 So. 2d 1129 (Fla. 1986) requires that the State
must carry the burden of showing that an error is harmless beyond a
reasonable doubt. DiGuilio cites with approval to Chief Justice Traynor’s
observations regarding harmless error:
Overwhelming evidence of guilt does not negate the fact that
an error that constituted a substantial part of the
prosecution’s case may have played a substantial part in the
jury’s deliberation and thus contributed to the actual verdict
reached, for the jury may have reached its verdict because of
the error without considering other reasons untainted by error
that would have supported the same result.
Id. at 1136, citing People v. Ross, 67 Cal. 2d 64, 429 P.2d 606, 621, 60
Cal. Rptr. 254, 269 (1967) (Traynor, J., dissenting).
It is hard to avoid the conclusion that the inadmissible statement
implicating Moscatiello constituted “a substantial part of the prosecution’s
case.” The State placed great emphasis on Gurino’s statement to Marley.
The prosecutor made it the last point in opening statement and the first
statement in closing argument. In fact, the prosecutor’s closing argument
began: “I got the work from Moscatiello.” The prosecutor spent the first
several minutes of closing argument discussing these statements from
Marley, and stating, “It identifies Mr. Moscatiello as the person who brings
Mr. Gurino in.” While other witnesses also tied Moscatiello to Gurino,
none were quite as direct as Marley’s statement about what Gurino had
told him. And most of the key witnesses in the case had made deals with
the State for their testimony, thus impacting their credibility. Many of
them had made those deals after Moscatiello had been indicted, and at a
time when the State had developed Fiorillo as the shooter. The defense
made much of the lack of credibility of the witnesses and the shifting
theories of the State. The jury requested a readback of Marley’s testimony,
although it later withdrew the request, but it highlights the significance of
that testimony to the jurors. They deliberated for nearly two days before
reaching their verdict.
Given the substantial issues of credibility of all of the major witnesses
in the case, we cannot say that the State has shown beyond a reasonable
doubt that the error in admitting Gurino’s statement was harmless. See
13
Shivers v. State, 900 So. 2d 615, 618 (Fla. 1st DCA 2005) (finding the
erroneous admission of an affidavit was not harmless error where the State
made it a feature of closing argument). We are mindful that there is plenty
of evidence of Moscatiello’s guilt. But our supreme court has consistently
stated that overwhelming evidence is not the test, particularly where the
erroneously admitted evidence becomes a focal point of the trial. See State
v. Lee, 531 So. 2d 133 (Fla. 1988). We are constrained by these rulings.
As to the remaining issues raised, we affirm. But, because we cannot
conclude that the error in admitting Gurino’s statement regarding
Moscatiello is harmless under DiGuilio, we reverse for a new trial.
GROSS and TAYLOR, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
14