FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D18-1834
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CAMERON DOMINQUE ROBERTS,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
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On appeal from the Circuit Court for Alachua County.
William E. Davis, Judge.
August 23, 2019
PER CURIAM.
Cameron Dominque Roberts appeals his convictions for
robbery with a firearm and possession of a firearm by a convicted
felon. Roberts argues that the trial court committed six reversible
errors. Finding no merit in any of these arguments, we affirm.
Facts
The charges against Roberts arose from a failed drug
transaction. Roberts’ sister, Ebony Young, arranged to purchase
two ounces of marijuana from the victim and agreed on a location
to meet the victim. Young arrived at the planned location with
Roberts. Roberts and the victim argued over the price and the
quality of the marijuana. The argument became physical, and the
victim suffered an injury to his face. Roberts and Young took the
marijuana without paying for it and left the area. Roberts was
arrested three weeks later.
Motions in Limine
Before trial, Roberts filed two motions in limine. First, he
sought to exclude evidence about the circumstances surrounding
his arrest. Defense counsel argued that the dramatic
circumstances of the arrest, which involved a SWAT team and the
Marshals Service, were not relevant to the charges against Roberts
and that admission of evidence about the arrest would be highly
prejudicial. The State responded that the events surrounding
Roberts’ arrest were relevant because they showed consciousness
of guilt. The court denied the motion.
Second, Roberts sought to prevent law enforcement officers
from opining that the injury to the victim’s face appeared to have
been caused by a strike from the barrel of a shotgun. The State
proffered the testimony of Detective Tom Mullins to establish that
Mullins had detailed knowledge about shotguns. The trial court
denied the motion, ruling that Mullins could testify about the size
and shape of the injury, his personal experience with shotguns,
and the diameter of the barrels of different gauges of shotguns.
But the court barred the prosecutor from asking Mullins if the
wound to the victim’s face looked as if it had been caused by a
strike from the barrel of a shotgun.
Jury Selection
During the selection process, the State asked to use a
preemptory strike on Prospective Juror Beckman. Because she
was the only African American on the panel, defense counsel asked
for a race-neutral reason for the strike. The State responded that
it was striking Beckman because she did not understand a
hypothetical about the burden of proof and because of her
knowledge of marijuana prices. Defense counsel argued that the
State’s reasons were not genuine because several prospective
jurors were knowledgeable about marijuana, including a juror
accepted by the State. Defense counsel contended that proper jury
instructions on the burden of proof would resolve any confusion
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caused by the hypothetical. The State replied that the purpose of
the question concerning the burden of proof was to determine
whether a prospective juror could follow the example and reach the
correct conclusion; Beckman was unable to do so. The trial court
found that the State provided a genuine race-neutral reason for
the strike.
Trial
The victim testified that he had sold marijuana to Ebony
Young in the past and that he agreed to sell to her on the day in
question. Young arrived at the planned location with an unknown
male passenger. After the victim gave Young the marijuana, the
unknown male pulled out a shotgun and pointed it at the victim’s
face. The victim tried to grab the marijuana, but the man hit the
victim in the face with the barrel of the shotgun. The victim
sustained a cut under his eye from the strike. After the incident,
the victim learned that the man with Young was her brother,
Cameron Roberts.
On cross, the victim denied owning any firearms. He also
testified that he agreed to enter a no contest plea for his probation
violation in exchange for the State dropping three felony charges
against him. When defense counsel sought to elicit testimony
about the dropped charges, the prosecutor objected. Defense
counsel argued that the nature of the offenses was relevant
because the victim denied owning any firearms, yet he was
arrested for carrying a concealed firearm. The court found that the
victim’s arrest for a firearm offense was not relevant because it
occurred five days after the robbery.
Detective Tom Mullins testified that he had professional
training and experience with firearms over the past twenty-two
years of his law enforcement career. He also had personal
experience with firearms because he started hunting at a young
age and owned several firearms. During an interview with the
victim nine days after the robbery, Mullins observed the injury to
the victim’s face. He also reviewed photographs of the injury taken
on the night of the robbery. Mullins described the injury as semi-
circular, like an arc. He explained that the diameter of a twelve-
gauge shotgun barrel was roughly the size of a nickel or just under
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three-quarters of an inch and that the diameter of the barrel would
increase or decrease based on the gauge of the shotgun. Mullins
clarified that he could not say that a shotgun caused the victim’s
injury.
The State then called Ebony Young. Young remembered a
“stick-like figure” by Roberts’ seat on the night in question. She
recalled that Roberts asked questions about the victim during the
drive, but she testified that she could not remember the details of
their conversation. The prosecutor tried to refresh her recollection
by using her sworn statement, but Young insisted that she did not
remember what was said. Young agreed that her memory was
better when she gave a sworn statement at the prosecutor’s office
ten days after the robbery, and she agreed that the statement she
gave then was truthful. Over defense counsel’s objection, the trial
court allowed the prosecutor to read the portion of Young’s
recorded statement where she attested that Roberts had asked if
the victim was the type of person Roberts could “jack.”
The prosecutor also tried to refresh Young’s recollection about
the “stick-like figure” Roberts had with him in the car that night,
but Young testified that reviewing her statement did not help her
recall the information. Young remembered telling the prosecutor
that Roberts used a shotgun, but she did not actually remember
seeing a gun. She just assumed that the “stick-like figure” she had
seen in the car was a shotgun when the police told her they were
investigating an armed robbery. She claimed that she was not
truthful when she referred to the “stick-like figure” as a shotgun
in her statement because she was not sure it was a shotgun.
Young testified that after the victim gave Roberts the
marijuana, Roberts pulled out the object he had with him, but she
“kind of blacked out” while Roberts and the victim fought. Again,
reviewing her previous statement did not refresh Young’s
recollection, so the prosecutor read the portion of her past
statement in which she repeatedly stated that Roberts had a
shotgun that night. Young did not contest the fact that she once
told the prosecutor, “I never really saw it up close, but I do know it
was a shotgun.” Young explained that she believed that parts of
her previous statement were true and parts were untrue, but she
could not point to the untrue parts.
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Investigator David Sanders with the U.S. Marshals’ fugitive
task force provided testimony concerning Roberts’ arrest. Sanders
and his team surrounded the apartment building where Roberts
was located and used loud speakers to order Roberts out of the
apartment. The announcements continued for several hours with
no response from Roberts. Eventually, Ebony Brown, Roberts’
girlfriend, exited the apartment and confirmed that Roberts was
inside. The team continued with the announcements for some
time, but Roberts never left the apartment. SWAT was not called
until after Sanders’ team spent a couple of hours trying to convince
Roberts to leave the apartment. SWAT made a few more
announcements before throwing tear gas into the apartment. Still,
Roberts refused to leave the apartment and did not leave until his
mother arrived.
Roberts testified on his own behalf. He denied having any
weapons on his person when he and Young went to meet the
victim. During the transaction, Roberts noticed that the
marijuana was not the type he had requested, and he and the
victim argued about the quality of the product. Roberts claimed
that the victim became belligerent when Roberts tried to
renegotiate the price, and the victim stabbed Roberts’ hand.
Roberts hit the victim a couple of times with his elbow before he
and his sister left the area. Roberts stated that he did not
immediately leave the apartment when the police arrived because
the police announced that they could not ensure his safety and he
feared for his life. He did not leave the apartment until his mother
arrived and told him that it was safe.
During the State’s rebuttal closing argument, the prosecutor
argued that the jury should not place much weight on Roberts’
statement to the police about injuring his hand because the
statement was made three weeks after the robbery. The
prosecutor stated, “It would be one thing if Mr. Roberts had, you
know, contacted law enforcement the night this happened and
said, hey, I was the victim. Look, I got cut in the hand, and they
can document that.” Defense counsel argued that the prosecutor
was engaging in burden shifting because the argument implied
that Roberts had an obligation to put on some proof. The trial
court overruled the objection. The prosecutor argued that Roberts’
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story about injuring his hand was not credible because any injury
was not reported until three weeks after the robbery.
The jury found Roberts guilty of robbery with a firearm and
possession of a firearm by a convicted felon. This appeal follows.
Analysis
Roberts argues that the trial court erred in six respects: (1)
by allowing the State to exercise a peremptory challenge on the
sole African-American prospective juror; (2) in limiting the cross-
examination of the victim; (3) by allowing Detective Tom Mullins
to give lay opinion testimony; (4) in denying a motion in limine that
sought to exclude evidence of the circumstances surrounding his
arrest; (5) in allowing the State to admit a past recorded
recollection.; and (6) in overruling defense counsel’s objection to a
statement made during rebuttal closing arguments.
Peremptory Challenge
The State provided two race-neutral reasons for striking
Prospective Juror Beckman: (1) Beckman did not understand the
State’s burden of proof; and (2) Beckman was familiar with
marijuana, including the pricing of marijuana. Roberts argues
that these reasons were not genuine because the reasons applied
equally to other prospective jurors, but the State sought to exclude
only Beckman, the sole African-American juror. Using a
peremptory challenge on a prospective juror who is a member of a
distinct racial group when the proffered reason applies equally to
a prospective juror who is not a member of a distinct racial group
can be racially discriminatory. Hunter v. State,
225 So. 3d 838, 839
(Fla. 4th DCA 2017). However, that is not what occurred here.
During jury selection, the prosecutor used a hypothetical to
explain the concept of burden of proof to the jury. The prosecutor
asked the jury panel to believe that it was illegal to possess a blue
pen and that the elements of the crime were that the pen was blue
and that the accused possessed the pen. When the prosecutor
asked if proof of the brand of the pen would affect her verdict,
Beckman responded that she would look at both sides of the story
and consider the evidence before reaching a verdict. Beckman,
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along with a few other jurors, did not immediately understand
from the hypothetical that the State’s burden was limited to
proving the elements of the charged crime. The record shows that
none of the other jurors confused by the hypothetical served on the
jury.
The State’s second reason for excluding Beckman was based
on her knowledge of marijuana. When asked about what she knew
about marijuana, Beckman responded, “I’ve seen it, smelled it,
somewhat the value.” She believed that the value was determined
by ounces, but later explained that she did not really understand
the valuation because it involved a lot of math. Jurors West,
Rodriguez, and Willis, who served, stated that they had seen and
smelled marijuana, but they did not know its value. Juror Whyte
testified that her knowledge was limited to the appearance of
marijuana. Unlike West, Rodriguez, Willis, and Whyte, Beckman
had some knowledge—however limited—concerning the value of
marijuana.
Because our review of the record shows that the State’s
reasons for striking Beckman were race-neutral, the trial court did
not abuse its discretion in permitting the State to strike Beckman
from the jury panel. See Johnson v. State,
238 So. 3d 726, 740 (Fla.
2018).
Cross-examination
Next, Roberts argues that the trial court impermissibly
limited his ability to cross-examine the victim about (1) the State
charging the victim with crimes involving firearms several days
after the armed robbery occurred, (2) the victim’s admission during
a police interview that he possessed a firearm when he was
arrested on the new charges, and (3) the State’s decision to drop
those charges despite the victim’s confession. Based on our review
of the record, we find no error by the trial court in limiting the
cross-examination of the victim.
A defendant has the right to conduct a full cross-examination
of a witness, especially when the witness being examined is a key
witness for the State. Docekal v. State,
929 So. 2d 1139, 1143 (Fla.
5th DCA 2006). A permissible subject of cross-examination is
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whether the witness is biased or has an interest in the outcome of
the case. Id. For example, a witness may be questioned about
whether he has or had charges pending against him:
It is well-settled that “if a witness for the State were
presently or recently under actual or threatened
criminal charges or investigation leading to such
criminal charges, a person against whom such witness
testifies in a criminal case has an absolute right to bring
those circumstances out on cross-examination or
otherwise so that the jury will be fully apprised as to the
witness’ possible motive or self-interest with respect to
the testimony he gives.”
Fajardo v. State,
193 So. 3d 1019, 1024-25 (Fla. 4th DCA 2016)
(quoting Morrell v. State,
297 So. 2d 579, 580 (Fla. 1st DCA 1974)).
But there are limits on a defendant’s right to cross-examine a
witness about bias. Breedlove v. State,
580 So. 2d 605, 609 (Fla.
1991). “Evidence of bias may be inadmissible if it unfairly
prejudices the trier of fact against the witness or misleads the trier
of fact. Therefore, inquiry into collateral matters, if such matters
will not promote the ends of justice, should not be permitted if it is
unjust to the witness and uncalled for by the circumstances.” Id.
Here, defense counsel elicited some testimony from the victim
showing his potential bias: the victim testified that he was
arrested for three third-degree felonies, the State did not prosecute
him for those charges, and the State had not promised him
anything in exchange for his testimony. As a result, defense
counsel showed that the victim could have a motive for testifying
against Roberts.
The trial court’s ruling limiting the cross-examination of the
victim and barring defense counsel from asking about the nature
of the charges against the victim prevented the jury from being
misled. One of the issues disputed at trial was whether the victim
was armed during the drug deal. Had the jury learned that the
victim was arrested for carrying a concealed firearm, the jury may
have been misled into believing that the victim’s arrest five days
after the robbery was evidence that he possessed a gun during the
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robbery. Considering the passage of time between the robbery and
the victim’s arrest, the trial court did not abuse its discretion by
preventing defense counsel from asking the victim about the exact
nature of the dropped charges. Chambers v. State,
200 So. 3d 242,
246 (Fla. 1st DCA 2016).
Lay Opinion Testimony
Roberts also contends that the trial court erred when it
allowed Detective Mullins to offer impermissible lay testimony. A
lay witness cannot testify about an inference or opinion because it
invades the province of the jury. Johnson v. State,
252 So. 3d 1114,
1116 (Fla. 2018). Our review of the record shows that Detective
Mullins limited his testimony to his observation of the victim’s
wound nine days after the robbery, his viewing of photographs of
the victim’s wound on the night of the robbery, his observation that
the victim’s wound was a certain size, and his assertion that the
barrel of a twelve-gauge shotgun was a certain size. Mullins did
not offer an opinion about the cause of the victim’s wound; his
testimony was limited to his personal observations and knowledge.
Mullins did not testify that he believed that a shotgun caused the
injury to the victim’s face. Rather, he testified that he was unable
to reach such a conclusion. For these reasons, the trial court did
not abuse its discretion by allowing this testimony. McCray v.
State,
919 So. 2d 647, 649 (Fla. 1st DCA 2006).
Circumstances Surrounding the Arrest
Roberts argues next that the trial court erred in denying his
motion in limine to exclude evidence surrounding his arrest
because the evidence was unduly prejudicial and did not reflect a
consciousness of guilt. Evidence of flight and resisting lawful
arrest are admissible to show consciousness of guilt if there is a
nexus between the flight or concealment and the crimes for which
the defendant is being tried. Twilegar v. State,
42 So. 3d 177, 196
(Fla. 2010). The significance of evidence of flight is weakened:
1) if the suspect was unaware at the time of the flight
that he was the subject of a criminal investigation for
the particular crime charged; 2) where there were not
clear indications that the defendant had in fact fled; or,
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3) where there was a significant time delay from the
commission of the crime to the time of flight. The
interpretation to be gleaned from an act of flight should
be made with a sensitivity to the facts of the particular
case.
Id. (quoting Bundy v. State,
471 So. 2d 9, 21 (Fla. 1985)).
Here, the prosecutor presented testimony that Roberts knew
that a warrant was out for his arrest. Young told Roberts that she
had informed law enforcement that Roberts had a shotgun during
the robbery. The officers seeking to make the arrest announced on
loud speakers that they were there to execute a warrant. Roberts
admitted that he heard the announcements. Rather than exit the
apartment, Roberts chose to hide in the apartment for hours—even
after tear gas was launched inside the apartment. Based on this
record, the trial court did not abuse its discretion when it
concluded that the probative value of the evidence of the
circumstances surrounding the arrest outweighed its prejudicial
effect. Patrick v. State,
104 So. 3d 1046, 1056 (Fla. 2012).
Past Recorded Recollection
Next, Roberts argues that the trial court erred by allowing the
prosecutor to impeach Young by using her past recorded
recollection because there was insufficient testimony that Young
believed that her past statement was accurate.
Section 90.803(5), Florida Statutes (2017), defines a past
recorded recollection as:
A memorandum or record concerning a matter about
which a witness once had knowledge, but now has
insufficient recollection to enable the witness to testify
fully and accurately, shown to have been made by the
witness when the matter was fresh in the witness’s
memory and to reflect that knowledge correctly. A party
may read into evidence a memorandum or record when
it is admitted, but no such memorandum or record is
admissible as an exhibit unless offered by an adverse
party.
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A witness’s testimony about the accuracy of the statement is
essential to the admission of the evidence. Polite v. State,
116 So.
3d 270, 275 (Fla. 2013). “If the witness is unable to adequately
recall making the record, the witness may nevertheless verify the
record or memorandum by testimony that: (1) although the
witness does not recall the statement, the witness has a habit of
recording such matters correctly or (2) the witness believes the
statement is correct because the witness would have been truthful
in providing the statement.” Id. at 279.
Ten days after the robbery, Young appeared at the
prosecutor’s office and gave a sworn statement. She agreed that
her memory about the robbery was better when she gave the
statement ten days after the robbery than it was at trial. She also
agreed that she was truthful when she gave the statement. Young
later gave the caveat that her statement was truthful, except when
she said that Roberts had a shotgun on the night of the robbery.
Young’s testimony laid a sufficient foundation for the
admission of her past statement. Blount v. State,
152 So. 3d 29
(Fla. 1st DCA 2014). Admission of a past recorded recollection of
a witness is proper when the witness’s trial testimony shows: the
witness does not remember the events surrounding the shooting,
the witness once had this knowledge, the witness described the
events in a sworn statement while they were fresh in the witness’s
mind, and the witness was telling the truth when the sworn
statement was provided. Id. at 30. Young’s testimony at Roberts’
trial satisfied each of these requirements. Thus, the trial court did
not abuse its discretion by allowing the prosecutor to present
Young’s past recorded recollection. McCray, 919 So. 2d at 649.
Closing Arguments
Finally, Roberts argues that the trial court erred in overruling
his objection to the prosecutor’s comment that the jury should not
place much weight on Roberts’ claim about injuring his hand
during the robbery because Roberts did not mention this injury
until he was arrested three weeks later.
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The State may not comment on a defendant’s failure to
produce evidence because such comments may cause the jury to
believe that the defendant has the burden of introducing evidence.
Jackson v. State,
575 So. 2d 181, 188 (Fla. 1991). But a
prosecutor’s comments are not considered impermissible burden-
shifting when the comments are invited by defense counsel’s
closing argument. Scott v. State,
66 So. 3d 923, 930 (Fla. 2011). A
prosecutor may comment on the credibility of a defendant when
the defendant testifies and when the prosecutor limits the
comment to facts that are in record or may be reasonably inferred
from the record. Gale v. State,
483 So. 2d 53, 54 (Fla. 1st DCA
1986).
Contrary to Roberts’ assertion, the prosecutor did not engage
in burden shifting. Defense counsel argued during closing that
Roberts’ testimony about the victim injuring Roberts’ hand during
the drug deal was believable because it was corroborated by
Young’s and Mullins’ testimony. In response, the prosecutor
argued that neither Young’s nor Mullins’ testimony supported
Roberts’ claim that he sustained an injury during the altercation.
Thus, the prosecutor’s comments were invited by defense counsel’s
argument.
Conclusion
Because we find no reversible error, we AFFIRM the court’s
imposition of judgment and sentence.
ROWE, JAY, and M.K. THOMAS, 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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Andy Thomas, Public Defender, and M. J. Lord, Assistant Public
Defender, Tallahassee, for Appellant.
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Ashley Moody, Attorney General, and Julian E. Markham,
Assistant Attorney General, Tallahassee, for Appellee.
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