Tennyson v. State , 254 So. 3d 510 ( 2018 )


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  •       Third District Court of Appeal
    State of Florida
    Opinion filed April 11, 2018.
    Not final until disposition of timely filed motion for rehearing.
    ________________
    No. 3D16-625
    Lower Tribunal No. 13-4750C
    ________________
    Kenny Tennyson,
    Appellant,
    vs.
    The State of Florida,
    Appellee.
    An Appeal from the Circuit Court for Miami-Dade County, Victoria R.
    Brennan, Judge.
    David S. Molansky, for appellant.
    Pamela Jo Bondi, Attorney General, and Jonathan Tanoos, Assistant
    Attorney General, for appellee.
    Before SALTER, EMAS and FERNANDEZ, JJ.
    FERNANDEZ, J.
    Kenny Tennyson appeals his first degree murder, armed robbery, and
    conspiracy to commit armed robbery conviction and sentence, asserting that the
    trial court abused its discretion in denying defense counsel’s request to impeach
    state witness Frank Reinstrom on recross examination. We find that the trial court
    did not abuse its discretion in its denial of recross as 1) the denial of impeachment
    was proper considering the basis for impeachment proffered by defense counsel, 2)
    the alleged Giglio violation was not properly preserved, and 3) there is no
    fundamental error. Accordingly, we affirm Tennyson’s conviction and sentence,
    without prejudice to his right to file a post-conviction motion raising issues
    properly cognizable in such a motion.
    I. BACKGROUND
    Tennyson, along with codefendants Irvell Jenkins, Nathaniel Woodard, and
    Frank Reinstrom, was indicted on charges of first degree murder, armed robbery,
    and conspiracy to commit armed robbery.1 Tennyson was tried jointly with
    Woodard and found guilty as changed. The trial court sentenced Tennyson to life
    without parole on the first degree murder and armed robbery convictions and
    fifteen years on the conspiracy conviction. Reinstrom testified against Tennyson
    and Woodard and received a reduced sentence as a result of a plea agreement.
    1 This Court previously affirmed the conviction of codefendant Irvell Jenkins in
    Case No. 3D14-214. Codefendant Nathaniel Woodard filed a separate appeal that
    is pending review before this Court as of the time of this opinion in Case No.
    3D16-779.
    2
    Tennyson appeals his conviction, claiming that the trial court erroneously denied
    his request to recross Reinstrom.
    On December 23, 2012, Ernesto Lopez was shot in front of a relative’s home
    in the presence of his daughter and his brother-in-law. A white four door car pulled
    up, two men exited the vehicle from the passenger’s side, stated that it was a
    robbery, and one of the men shot Lopez. The driver remained in the vehicle. After
    shooting Lopez, the men stole a gold chain from around Lopez’s neck. Lopez
    passed away on January 15, 2013.
    The victim’s daughter, Natalie Lopez, and his brother-in-law, Genaro
    Guzman, were able to provide basic descriptions of the two men that exited the
    vehicle. The man holding the firearm who said “this is a robbery” in Spanish was
    described as an African American male in his early twenties with dreadlocks. The
    other man was described as a white or a lighter skinned male. Natalie testified that
    even though she could not see the driver of the white sedan, she assumed that there
    was a driver since the men who attacked her father exited out of passenger doors.
    During a photographic lineup of suspects, Natalie was able to identify Irvell
    Jenkins as the man with the firearm who shot her father. She was unable to identify
    any other suspects.
    During the course of the investigation, Detective Fernando Bosch received a
    tip that led him to question Reinstrom concerning his involvement in the homicide.
    3
    Reinstrom agreed to accompany the detective to the police department, where
    officers interrogated Reinstrom and informed him that he had been identified by
    the victim’s daughter and that his involvement in the homicide was caught on
    video by a City of Miami camera. The officers then stepped out of the interview
    room to take a break. While alone in the room, Reinstrom received a call on his
    cellphone. Reinstrom’s portion of the conversation was recorded as follows:
    ‘Yo, what’s good? Nigga still in this shit, man. Nawh, man, man
    somebody caught us, caught me on camera, man. Yeah, man with that
    shit man, I’mma call you back. ‘Yo, huh. They got it right, they got a
    right hoodie they ‘bout to show they, they ‘bout to show I’m over here
    clearing my face. Yeah, they (inaudible), they got the address, they
    ah…yeah I’m finna ah…huh? Yeah, man they already know man the
    girl daughter pointed my face out. Yeah, man.
    Though initially uncooperative, Reinstrom admitted that he was involved in the
    homicide as a driver of a secondary vehicle and agreed to show the officers the
    scene of the crime, the location where the white sedan was stolen, and the location
    where the vehicle was later abandoned after the shooting. He further identified
    Tennyson and Woodard as the individuals who were directly involved in the
    homicide.
    Reinstrom was ultimately arrested and charged with first degree murder,
    armed robbery, and accessory after the fact. He pled guilty, pursuant to a written
    agreement, to accessory after the fact, was sentenced to a seventeen-year split
    4
    sentence consisting of ten years of prison followed by seven years of probation,
    and agreed to testify truthfully against Tennyson and Woodard at the joint trial.
    During trial, at the conclusion of Reinstrom’s testimony on redirect
    examination, defense counsel for Woodard requested to recross examine
    Reinstrom for the purpose of impeachment. Defense counsel drew the trial court’s
    attention to Reinstrom’s initial denial of the phone call during the police interview
    but admitted that Reinstrom later agreed that he received the phone call, when
    questioned on redirect. Defense counsel also argued that Reinstrom’s testimony did
    not agree with certain content from the phone conversation. Specifically, the
    transcript reads:
    Defense Counsel: Judge, my inquiry regarding the content of it
    involve – involving response, he initially said it didn’t happen. And
    then he later said it happened but was not in agreement with content.
    On redirect, she – there was further testimony were he explained that
    he had switched phones with someone and that the person who – he
    identified the caller and further discussed the content.
    Because of his denial, it’s central to our defense that we be
    permitted to impeach him in this area. So for this purpose, I am
    seeking because he has first denied and then agreed to some part of it
    on redirect, I'm asking that the jury actually hear the audio.
    The Court: To impeach his denial that it happened?
    Defense Counsel: Yes.
    (Emphasis added). The relevant testimony from cross and redirect examination is
    provided as follows:
    Cross Examination
    5
    Defense Counsel: There's a moment when in that interview room part
    of their -- the pressure that they put on you, they exit that room and
    leave you to stew, correct?
    Reinstrom: Yes, sir.
    Defense Counsel: And at that moment you made a phone call.
    Reinstrom: No, sir.
    Defense Counsel: And you tell me if this is true. Did you say: "They
    got it right, yeah, man, they know, man, the girl daughter pointed my
    face out"? This is the phone call. This is the discussion on the phone
    call you made during a break in the interview, correct?
    State: Objection, move to strike. Calls for hearsay.
    The Court: Overruled.
    Reinstrom: No, sir, that wasn't what was said.
    …
    Defense Counsel: And you make a phone call that says: They caught
    me on camera. They got it right. They got a right hoodie they about to
    show. Yeah, I'm fittin' to -- yeah, man, they already know, man. The
    girl daughter pointed my face out. You remember making a discussion
    on your phone when no detectives are present in interview room?
    Reinstrom: No, sir.
    Defense Counsel: You don't remember this?
    Reinstrom: No, sir.2
    Redirect Examination
    State: So you -- Mr. Miller was asking you about a phone you had.
    You had a phone, didn't you?
    Reinstrom: The day I got arrested, ma'am?
    State: Yes.
    Reinstrom: Yes, I had it.
    State: Whose phone was it?
    Reinstrom: Jamel, ma'am.
    State: Who were you on the phone with in the homicide bureau? Who
    were you calling?
    Reinstrom: I ain’t calling nobody ma’am.
    State: Who called you?
    2During cross examination, defense counsel did not seek to impeach Reinstrom for
    his testimony initially denying the phone call, denying the content of the phone
    call, and later, affirming that he did not remember that the phone call took place.
    6
    Reinstrom: One of them. I can’t remember which one, ma’am.
    State: When you say one of them, who are you talking about?
    Reinstrom: My codefendants.
    State: Was it Jamel calling?
    Reinstrom: I ain’t sure.
    State: But you know someone called you. And whose phone did they
    have that they were calling you from?
    Reinstrom: It was probably – it was my phone.
    State: Why did you guys switch phones?
    Reinstrom: Because his phone was dying and he was leaving the
    house.
    State: So whoever – who was leaving the house?
    Reinstrom: Jamel, ma’am.
    State: So is that who called you?
    Reinstrom: If I’m not mistaken, yes, ma’am.3
    Defense counsel provided the trial court with the transcript of Reinstrom’s
    interview with police, pointed out where in the transcript Reinstrom received a
    phone call during the interview, and requested that the trial court allow the jury to
    listen to the entire audio recording of the interview on recross in order to impeach
    Reinstrom.
    The State responded that there was no new content brought up within the
    scope of redirect. The State acknowledged that Reinstrom did indeed testify that he
    did not place a phone call, but after clarification, Reinstrom agreed that he did
    receive a phone call during the interview. Regarding the content of the phone call,
    the State answered, “And that issue about whether what he said in the phone call is
    not new within the scope of redirect.”
    3The State did not directly question Reinstrom regarding the content of the phone
    call or his denial of the content of the phone call during cross examination.
    7
    The trial judge denied defense counsel’s request to recross Reinstrom,
    finding, “He clearly testified in redirect that he had a phone with him and that
    someone called him and that there was nothing critical about that.” The trial
    proceeded, and Tennyson was convicted and sentenced. Tennyson’s appeal
    followed.
    II. ANALYSIS
    On appeal, Tennyson claims that the trial court erroneously denied his
    request to recross Reinstrom based on two theories: 1) the trial court improperly
    restricted further impeachment of Reinstrom’s credibility and 2) the trial court
    violated Tennyson’s right to due process under Giglio v. United States, 
    405 U.S. 150
    (1972). For the reasons stated below, we affirm Tennyson’s conviction and
    sentence.
    A. Standard of Review
    “A trial court's decision not to allow re-cross-examination is reviewed for
    abuse of discretion.” Knight v. State, 
    919 So. 2d 628
    , 636 (Fla. 3d DCA 2006). It is
    not an abuse of discretion for a trial court to deny recross when the prosecutor does
    not raise any new matters during redirect. See Hurst v. State, 
    825 So. 2d 517
    , 517
    (Fla. 4th DCA 2002). “The admission or rejection of [evidence for the purpose of
    impeachment] rests in the sound discretion of the trial court who must judge the
    propriety thereof from what transpires upon the trial, and the conduct of the
    8
    witness upon the stand. And this discretion will not be interfered with unless
    abused.” Carter v. State, 
    101 So. 2d 911
    , 914 (Fla. 1st DCA 1958). “This Court
    applies a mixed standard of review to Giglio claims, ‘defer[ring] to the factual
    findings made by the trial court to the extent they are supported by competent,
    substantial evidence, but review[ing] de novo the application of [the law to the
    facts].’” Suggs v. State, 
    923 So. 2d 419
    , 426 (Fla. 2005) (quoting Sochor v.
    State, 
    883 So. 2d 766
    , 785 (Fla. 2004)).
    B. Impeachment
    On appeal, Tennyson abandons the basis for impeachment proffered by
    defense counsel. At trial, defense counsel sought to impeach Reinstrom primarily
    for his initial denial of the phone call, which was corrected on redirect. As to the
    context of the phone call, defense counsel only referenced Reinstrom’s testimony
    on redirect regarding “switching phones with someone” and “identif[ying] the
    caller.” The trial court sought to clarify the reason for impeachment by asking, “To
    impeach his denial that [the phone call] happened?” Defense counsel answered in
    the affirmative and asked for the entire audio of the police interview to be played
    for the jury.
    On appeal, Tennyson now argues that defense counsel should have been
    permitted to impeach Reinstrom with a specific statement from the audio recording
    in which, during the phone call, Reinstrom acknowledged that the victim’s
    9
    daughter had identified him at the scene of the shooting. Tennyson contends that
    this statement is contrary to Reinstrom’s testimony during cross where he denied
    the content of the phone call, including acknowledging the daughter’s
    identification. Tennyson also contends that the statement is also contrary to
    Reinstrom’s testimony on redirect where he denied being present at the scene of
    the shooting.
    Relevant Portion of the Phone Conversation
    They got it right, they got a right hoodie they ‘bout to show they, they
    ‘bout to show I’m over here clearing my face. Yeah, they (inaudible),
    they got the address, they ah…yeah I’m finna ah…huh? Yeah, man
    they already know man the girl daughter pointed my face out. Yeah,
    man.
    Relevant Testimony on Cross Examination
    Defense Counsel: And at that moment you made a phone call.
    Reinstrom: No, sir.
    Defense Counsel: And you tell me if this is true. Did you say: "They
    got it right, yeah, man, they know, man, the girl daughter pointed my
    face out"? This is the phone call. This is the discussion on the phone
    call you made during a break in the interview, correct?
    State: Objection, move to strike. Calls for hearsay.
    The Court: Overruled.
    Reinstrom: No, sir, that wasn't what was said.
    Relevant Testimony on Redirect Examination
    State: Were you there when Irvell Jenkins pulled the trigger?
    Reinstrom: No, ma'am.
    State: Is that why you don't know all the details?
    Reinstrom: Yes, ma'am.
    10
    The trial judge based her decision to deny recross on the basis for
    impeachment defense counsel provided at trial, as is indicated by the judge’s
    ruling – “Your request is denied. He clearly testified in redirect that he had a
    phone with him and that someone called him and that there was nothing
    critical about that.” (Emphasis added). Reinstrom’s denial of the portion of
    the phone call in which he acknowledged the daughter’s identification and
    his denial of being at the scene of the shooting were not included as part of
    defense counsel’s explanation for impeaching Reinstrom. Moreover, it was
    during defense counsel’s cross examination that Reinstrom initially denied
    the phone call and denied the content of the phone call. Defense counsel had
    ample opportunity during cross to impeach Reinstrom but failed to do so.
    Lastly, Reinstrom’s denial on redirect regarding his presence at the
    scene of the shooting does not contradict his acknowledgment during the
    phone call that the daughter identified him at the scene. Reinstrom did not
    have personal knowledge of the substance of the statement. See Roman v.
    State, 
    475 So. 2d 1228
    , 1233 (Fla. 1985); § 90.604, Fla. Stat. (2016). He
    was merely acknowledging the information the officers confronted him with
    during the interrogation, and there is no evidence in the record that the
    daughter actually identified Reinstrom. An impeachment of Reinstrom on
    this prior inconsistent statement would go to further discredit Reinstrom but
    11
    is not admissible for the truth of the matter asserted – that he was present at
    the scene when the shooting took place. See generally Pearce v. State, 
    880 So. 2d 561
    , 568-72 (Fla. 2004).
    Accordingly, we find that there is no indication that the trial court
    abused its discretion when it denied defense counsel’s request for
    impeachment on recross examination, and any possible error would be
    harmless.
    C. Giglio Violation
    Tennyson argues that “[t]he state allowed Reinstrom’s false testimony to go
    uncorrected contrary to the requirements of Due Process (and contrary to the
    evidence [in the audio recording]) []” and cites to Giglio v. United States, 
    405 U.S. 150
    (1972). Yet, as the record indicates, the alleged Giglio violation was not
    properly preserved for appeal, and there was no fundamental error to overcome the
    lack of preservation in light of Reinstrom’s substantial impeachment throughout
    trial.
    A Giglio violation is established by showing: 1) the testimony provided was
    false, 2) the prosecutor knew the testimony was false, and 3) the false statement
    was material. Guzman v. State, 
    941 So. 2d 1045
    , 1050 (Fla. 2006). A Giglio claim
    is based on the prosecutor's knowing presentation at trial of false testimony against
    the defendant. 
    Giglio, 405 U.S. at 154-55
    . Under Giglio, where the prosecutor
    12
    knowingly uses perjured testimony, or fails to correct what the prosecutor later
    learns is false testimony, the false evidence is material “if there is any reasonable
    likelihood that the false testimony could have affected the judgment of the jury.”
    United States v. Agurs, 
    427 U.S. 97
    , 103 (1976). Once the first two prongs are
    established, the State bears the burden of showing that the false evidence was
    immaterial by showing that its use was harmless beyond a reasonable doubt. 
    Id. To do
    this, the State must show that “there is no reasonable possibility that the error
    contributed to the conviction.” State v. DiGuilio, 
    491 So. 2d 1129
    , 1135 (Fla.
    1986).
    A Giglio violation has to be properly preserved for review on appeal, unless
    it is found to be fundamental error. Mackey v. State, 
    55 So. 3d 606
    , 610 (Fla. 4th
    DCA 2011). To preserve an issue for review on appeal, a legal argument must be
    timely raised and ruled on by the trial court and the argument must be sufficiently
    precise that it fairly apprises the trial court of the relief sought. § 924.051(1)(b)(3),
    Fla. Stat. (2016).
    Defense counsel did not raise a Giglio violation in support of his request for
    recross examination. Defense counsel briefly brought up alleged false parts of
    Reinstrom’s testimony, the explanation of which was ambiguous. The focus of
    defense counsel’s rationale was on Reinstrom’s initial denial of the phone call,
    which was later corrected on redirect. The Florida Supreme Court has held,
    13
    “Ambiguous testimony does not constitute false testimony for the purposes
    of Giglio.” Phillips v. State, 
    608 So. 2d 778
    , 781 (Fla. 1992). More importantly,
    defense counsel did not show that the prosecutor knew the testimony was false;
    even a mere accusation of such is absent from the record. Therefore, the burden did
    not shift to the State to prove that the alleged false testimony was immaterial.
    Accordingly, a Giglio violation was not properly preserved for review on appeal.
    14
    D. Fundamental Error
    However, a Giglio violation can be raised on appeal if not properly
    preserved if that violation constitutes a fundamental error. 
    Mackey, 55 So. 3d at 610
    . “Fundamental error is that which ‘reaches down into the validity of the trial
    itself to the extent that a verdict of guilty could not have been obtained without the
    assistance of the alleged error.’” Caraballo v. State, 
    39 So. 3d 1234
    , 1249 (Fla.
    2010) (quoting Brooks v. State, 
    762 So. 2d 879
    , 899 (Fla. 2000)).
    Reinstrom’s statements made during the phone call were unsworn, hearsay
    statements that would have been offered for impeachment purposes but not
    admissible as substantive evidence. In light of Reinstrom’s substantial cumulative
    impeachment throughout his testimony, any error occurring as a result of the trial
    court’s denial of recross examination was not fundamental error. On cross
    examination alone, Reinstrom’s credibility was impeached at least five different
    times. Reinstrom admitted on the stand to lying multiple times about whether he
    saw a gun, including a specific instance in November 2013 at the Charlotte
    Correctional Institute. He admitted to lying about “mostly everything” during the
    police interview. Specifically, he lied to the officers regarding Nathaniel
    Woodard’s involvement in the shooting. He also affirmed that he took the officers
    to the wrong location when retracing the routes taken on the day of the shooting.
    Reinstrom also agreed with defense counsel that if he lies and does not cooperate,
    15
    according to the plea agreement, he will receive a sentence of no less than fifteen
    years. On redirect examination, the State also brought attention to Reinstrom
    initially lying to police regarding Woodard and Tennyson’s involvement in the
    shooting. As such, there is no fundamental error in this case.
    III. CONCLUSION
    We find that the trial court did not abuse its discretion when it denied recross
    examination of Reinstrom as 1) the denial of impeachment was proper considering
    the basis for impeachment proffered by defense counsel, 2) the alleged Giglio
    violation was not properly preserved, and 3) there is no fundamental error. For
    these reasons, we affirm Tennyson’s conviction and sentence.
    Affirmed.
    16