Robert Roy Macomber v. State of Florida , 254 So. 3d 1098 ( 2018 )

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
No. 1D16-1828
_____________________________
ROBERT ROY MACOMBER,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
_____________________________
On appeal from the Circuit Court for Clay County.
Don H. Lester, Judge.
August 30, 2018
B.L. THOMAS, C.J.
Appellant was convicted of capital sexual battery and lewd
molestation based on evidence that he sexually abused his
girlfriend’s seven-year-old daughter, K.M. The evidence admitted
at trial included K.M.’s trial testimony and her partially redacted
pre-trial interview. We reject Appellant’s argument on appeal
that the trial court abused its discretion in admitting K.M.’s
redacted pre-trial statement under section 90.603(23), Florida
Statutes (2015). We agree with Appellant, however, that the trial
court abused its discretion by preventing the jury from hearing
K.M.’s full account of the circumstances surrounding the abuse,
including her accusation that Appellant sexually abused his own
daughter A.M.
In her pre-trial statement, K.M. stated that Appellant
abused both her and A.M., in each other’s presence. At trial, the
trial court allowed K.M. to tell the jury that A.M. was present
when Appellant abused her – which A.M. denied observing any
such abuse – but the court did not allow Appellant to cross-
examine K.M. regarding her pre-trial statement that Appellant
sexually abused both children or to present A.M.’s denial of such
abuse. K.M.’s pre-trial interview containing her accusations was
similarly redacted and not submitted to the jury. Thus, the jury
was not permitted to hear K.M.’s testimony that Appellant
sexually abused her and A.M. in the same criminal episode or
A.M.’s testimony that would have directly contradicted this
testimony.
We hold that K.M.’s description of Appellant’s abuse of A.M.
was relevant evidence, and it was reversible error to exclude such
evidence. This relevant evidence was not otherwise inadmissible,
as K.M.’s allegation that Appellant abused both her and A.M was
inextricably intertwined with K.M.’s statements that Appellant
abused her. In addition, to exclude this relevant evidence was
error under the rule of completeness, and such testimony should
have been presented to the jury. Although A.M. was permitted to
testify that she did not observe any abuse of K.M., this partial
testimony did not adequately allow the jury to hear K.M.’s
complete allegation that Appellant abused both of them and
A.M.’s denial of such abuse. We therefore reverse Appellant’s
conviction and remand the case for a new trial.
Analysis
A court’s decision to exclude testimony is reviewed for abuse
of discretion, but that discretion is limited by the rules of
evidence and the case law interpreting those rules. Patrick v.
State, 104 So. 3d 1046, 1056 (Fla. 2012). The paramount rule of
evidence is that “[a]ll relevant evidence is admissible, except as
provided by law.” § 90.402, Fla. Stat. (2015). The statutory
definition of relevant evidence is “evidence tending to prove or
disprove a material fact.” § 90.401, Fla. Stat. (2015). The
evidence that K.M. provided that Appellant sexually abused both
her and A.M. during the same criminal act is relevant as to
Appellant’s criminal liability regarding K.M., in light of A.M.’s
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proffered testimony that no such abuse occurred regarding her.
The jury’s conclusion on which witness was telling the truth
would necessarily determine which verdict the jury would return;
thus, the evidence would tend to “prove or disprove a material
fact” – Appellant’s guilt or innocence. Id.; State v. Taylor, 648 So.
2d 701, 704 (Fla. 1995) (“[Defendant’s] refusal [to submit to field
sobriety test] is relevant to show consciousness of guilt. If he has
an innocent explanation for not taking the tests, he is free to offer
that explanation in court.”).
The next step in our analysis is whether this relevant
evidence was otherwise inadmissible “as provided by law.”
§ 90.402, Fla. Stat. (2015). Here, the State moved in limine to
prohibit testimony or evidence regarding the alleged molestation
of A.M., asserting that such evidence “would be introduced for the
sole purpose of contradiction,” making it “improper impeachment
on a collateral matter.” Appellant opposed the State’s motion on
grounds that keeping this information from the jury would deny
Appellant his constitutional rights to a fair trial and to
confrontation of adverse witnesses. Appellant argued that
excluding this evidence “would result in the jury being misled . . .
concerning the precise allegations about the nature and
circumstances of the charged offenses in this case as stated by
the alleged child victim, K.M.” Appellant further asserted that
K.M.’s accusation regarding A.M. was critical to presenting “the
circumstances of the charged offenses in this case” and was not
evidence related to a collateral matter. Appellant further argued
that, under the rule of completeness, the evidence must be
admitted, as it was inextricably intertwined with K.M.’s
accusations regarding the charged crimes against Appellant.
The trial court granted the State’s motion in limine, finding
that “the evidence sought to be excluded by the State . . . and
sought to be introduced by [Appellant], is intended solely for
contradiction, does not go to the issue of the victim’s bias,
corruption, or lack of competency, and is not relevant to any
particular material issue in this case.”
Section 90.608, Florida Statutes, provides that Appellant can
“attack the credibility of a witness” by “[p]roof by other witnesses
that material facts are not as testified to by the witness being
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impeached.” Contrary to the rationale of the trial court, or the
arguments by the State, such evidence would not have injected a
collateral issue into the case or improper collateral crime
evidence, as K.M.’s allegations regarding A.M. were inextricably
intertwined with K.M’s allegations that they were both molested
by Appellant. Evidence of a collateral crime is admissible as
relevant evidence if it is inextricably intertwined with the
charged crime. Dorsett v. State, 944 So. 2d 1207, 1213 (Fla. 3d
DCA 2006). This is so, because it occasionally “becomes
necessary to admit evidence of other bad conduct to adequately
describe the offense or connect the elements of the offense
because the charged offense and the other conduct are
significantly linked in time and circumstance.” Wright v. State,
19 So. 3d 277, 292 (Fla. 2009). Specifically, collateral crime
evidence is inextricably intertwined, if it is “necessary to
(1) ‘adequately describe the deed’; (2) provide an intelligent
account of the crime(s) charged; (3) establish the entire context
out of which the charged crime(s) arose; or (4) adequately
describe the events leading up to the charged crime(s).” Dorsett,
944 So. 2d at 1213 (emphasis and citations omitted). Here,
K.M.’s testimony that Appellant abused her and A.M., in each
other’s presence, was inextricably intertwined, because it was
necessary to adequately describe the criminal episode involving
both victims.
The State did not charge Appellant regarding the allegations
that he abused A.M., and inextricably intertwined evidence can
involve other crimes that the State may decide in its discretion
are not worthy of prosecuting. In Griffin v. State, numerous
incidents of uncharged crimes were admitted against the
defendant, but the Florida Supreme Court rejected the
defendant’s arguments that the evidence was improper similar
fact evidence, but instead was relevant evidence to show “the
entire context out of which the crime arose” – i.e., inextricably
intertwined. 639 So. 2d 966, 969 (Fla. 1994).
In Kane v. State, the lower court allowed the State to present
photographs the defendant took of the victim before and after the
sexual abuse he was charged of committing. 975 So. 2d 1277,
1281 (Fla. 4th DCA 2008). The Fourth District held the evidence
admissible as “inextricably intertwined with the crimes charged”:
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The photographs are thus inseparable crime evidence,
linked together in time, place, and circumstance with
the charged sex offenses. They show the entire context
in which the molestation occurred. They depict
appellant’s unnatural and indecent disposition towards
his daughter and document the scene of the abuse she
suffered throughout her childhood.
Id. Here, K.M.’s testimony about how Appellant would sexually
abuse one or both of the girls while they were both in the room
was necessary to establish the context out of which the crimes
arose.
The facts here make this case clearly distinguishable from
the supreme court’s decision in Pantoja v. State, 59 So. 3d 1092
(Fla. 2011), and our decision in Roebuck v. State, 953 So. 2d 40
(Fla. 1st DCA 2007). In both cases, the defendants attempted to
discredit the victims’ testimony by introducing evidence through
cross-examination that the victims had previously made false
criminal allegations about third parties. That is not the basis for
the admission of the testimony at issue here. Rather, Appellant
correctly argues that the evidence that K.M. stated that
Appellant sexually abused both her and A.M. is inextricably
intertwined with the accusation that Appellant sexually battered
K.M. Furthermore, as we stated in Roebuck, to exclude evidence
of false reporting involving the defendant himself would
implicate due process protections and a defendant’s
constitutional right to confront his or her accusers. Roebuck, 953
So. 2d at 44 (citing Coco v. State, 62 So. 892 (Fla. 1953)). While
we need not address that issue in light of our holding, we
recognize the observation in Roebuck that, unlike here, the
evidence there “lacked the necessary relevance needed to amount
to a due process violation.” Id. Thus, we reverse the trial court’s
ruling excluding the evidence that Appellant also sexually abused
A.M. and A.M.’s denial that such abuse occurred.
REVERSED and REMANDED for a new trial.
WINSOR, J., concurs with opinion; WINOKUR, J., concurs in part
and dissents in part with opinion.
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_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
WINSOR, J., concurring.
From the beginning, K.M. maintained that every time
Macomber molested her, he also molested his own daughter. She
said this in her initial interview: “[E]very time he did it to me he
would do it to her, too.” She said it again during her subsequent
deposition: “[E]very time it happened to me it happened to [her].”
The record includes no indication she ever retracted this version
of events. Yet the jury never heard that version—or evidence
directly refuting it. (Macomber’s daughter has always maintained
she was not molested, contrary to K.M.’s allegations.) I cannot
conclude that K.M.’s insistence that Macomber’s daughter was
molested with her was merely an ancillary point. It is not like
whether a victim was wearing exercise clothes or pajamas, cf.
Anderson v. State, 133 So. 3d 646, 647 (Fla. 1st DCA 2014), or
whether a rape victim initially entered the perpetrator’s home
voluntarily, cf. Mills v. State, 681 So. 2d 878, 880 (Fla. 3d DCA
1996). Instead, the details of K.M.’s allegations—including her
claim that there was a second victim molested with her—were
material and critical.
Whether there were one or two victims is no less material
than whether there were one or two perpetrators. Had K.M.
maintained that Macomber and another person molested her
together, Macomber would be permitted to present testimony
refuting that. In other words, Macomber could present testimony
that the material facts could not be as K.M. said they were. It
does not get less collateral than that. ∗ Cf. Jeancharles v. State,
∗
The dissent addresses a hypothetical and suggests that “if
K.M. had testified that a fictional character was in the room
when Macomber molested her and that Macomber molested the
fictional character too,” evidence of that testimony’s impossibility
6
25 So. 3d 656, 658 (Fla. 4th DCA 2010) (rejecting argument that
impeachment of alibi witness was on collateral matter; “the
defendant’s whereabouts at about 9:00 p.m. was clearly a critical
issue”). The defense should have been allowed to present evidence
about K.M.’s insistence that Macomber’s own daughter was
molested with her, a critical component of K.M.’s accusation.
_____________________________
WINOKUR, J., concurring in part and dissenting in part.
I join the majority with regard to the admissibility of K.M.’s
pretrial statement. I do not agree, however, that the trial court
abused its discretion in excluding evidence of Macomber’s alleged
molestation of A.M.
As the majority opinion correctly notes, a court’s decision to
exclude testimony is generally reviewed for abuse of discretion.
See Globe v. State, 877 So. 2d 663, 672 (Fla. 2004). This
discretion, as again the majority opinion notes, is limited by the
rules of evidence. See Bearden v. State, 161 So. 3d 1257, 1263
(Fla. 2015). In other words, if a trial court simply misapplies a
specific evidence statute, its order is not really discretionary but
is reviewed de novo. But perhaps no evidentiary decisions are left
more to the trial judge’s discretion than whether evidence is
“relevant,” and whether relevant evidence is admissible. This is
primarily because the rules of evidence are vague in describing
what evidence is “relevant,” or what relevant evidence should be
would be unnecessary and that the issue would be one of witness
competency. But consider a more likely hypothetical: a victim
alleges two people simultaneously abused her and there is ample
evidence that one of those people (the one uncharged) could not
possibly have been present. Presumably, the dissent would leave
it up to the trial judge to decide whether this was an important
feature that the defense could address—or whether the defense
would be precluded from any mention of the second person,
leaving the jury to suppose there was only one perpetrator.
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admitted. See § 90.401, Fla. Stat. (“Relevant evidence is evidence
tending to prove or disprove a material fact.”); § 90.403, Fla. Stat.
(“Relevant evidence is inadmissible if its probative value is
substantially outweighed by the danger of unfair prejudice,
confusion of issues, misleading the jury, or needless presentation
of cumulative evidence.”).
This vagueness lends itself to wide discretion by the trial
judge in determining whether evidence is relevant and
admissible, which often requires this Court to affirm the trial
court’s decision to admit or to exclude evidence on this ground,
even if we might have ruled differently. By reversing this
conviction, we have ruled that no reasonable judge could have
determined that the disputed evidence did not tend to prove or
disprove a material fact, or could have determined that the
probative value of the evidence was substantially outweighed by
the danger of unfair prejudice or confusion of the issues. I
disagree. It was surely a difficult decision to weigh the offered
evidence and conclude that it was not relevant, or that the
danger of unfair prejudice or confusion outweighed its probative
value. I find that the trial court acted within its broad discretion
in making this difficult determination.
I.
The State charged Macomber with committing sexual crimes
upon K.M. The State did not charge Macomber with any crimes
related to A.M. The State filed a motion in limine stating that it
believed Macomber would attempt to introduce evidence or elicit
testimony that “during the time [he] was alleged to have
committed molestation on K.M., he was also molesting A.M.” and
that he would then call A.M. to rebut that testimony. The State
argued that such testimony was inadmissible as an “attempt to
elicit improper impeachment on a collateral matter.” Macomber
responded that exclusion of this evidence would constitute a
denial of his constitutional rights * and would mislead the jury
* I place little credence in Macomber’s contention that the
trial court was obligated to admit the disputed evidence because
it impacted his constitutional right to introduce exculpatory
evidence. All evidence offered by a criminal defendant is intended
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about the allegation against him, because K.M. had stated that 1)
A.M. witnessed the sexual abuse of K.M., and 2) Macomber also
sexually abused A.M.
Regarding Macomber’s first point, it should be noted that
A.M. did testify for him. K.M. had earlier testified that A.M.
witnessed Macomber sexually battering K.M. However, A.M. was
permitted to deny K.M.’s contention that she, A.M., had ever seen
Macomber battering K.M. In other words, A.M. was permitted to
testify regarding the specific charge against Macomber,
contradicting K.M.’s statement that A.M. saw it happen.
However, regarding the uncharged crime that Macomber
allegedly committed upon A.M., the trial court granted the
State’s motion to exclude such evidence:
The court concludes that the evidence sought to be
excluded by the State . . . and sought to be introduced by
[Macomber], is intended solely for contradiction, does
not go to the issue of the victim’s bias, corruption, or
lack of competency, and is not relevant to any particular
material issue in this case.
In other words, the trial court weighed the State’s claims
against Macomber’s, and concluded that the alleged molestation
of A.M. did not prove or disprove that Macomber molested K.M.,
and therefore found it irrelevant and inadmissible.
II.
to be exculpatory. A court is not obligated to ignore the rules of
evidence and admit inadmissible evidence merely because it is
offered by a criminal defendant. See United States v. Scheffer, 523
U.S. 303, 308 (1998) (holding that “rules excluding evidence from
criminal trials” “do not abridge an accused’s right to present a
defense so long as they are not ‘arbitrary’ or ‘disproportionate to
the purposes they are designed to serve’”) (citations omitted).
Other than making a broad claim that exclusion of this evidence
compromises his “right to confrontation and due process,”
Macomber did not identify any particular reason why a finding
that the disputed evidence is irrelevant is arbitrary or
disproportionate.
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It appears that Macomber sought permission to introduce
two pieces of testimony: 1) that he be permitted to ask K.M. on
cross-examination whether he sexually battered A.M. when he
battered K.M.; and 2) that he be permitted to ask A.M. on direct
examination whether he ever sexually battered her. Presuming
that K.M. would have answered that Macomber sexually battered
A.M. when he battered her, Macomber then wished to contradict
that answer with A.M.’s testimony that he never sexually
battered her. I believe the court did not abuse its discretion in
excluding both pieces of testimony.
A. K.M.’s testimony
Under the collateral-impeachment rule in the criminal
context, if a party elicits cross-examination testimony that is
collateral to the charged crime, the witness’s answer is conclusive
and the party may not introduce evidence to impeach such
testimony. See Griffin v. State, 827 So. 2d 1098, 1099 (Fla. 1st
DCA 2002). As a corollary, a party may not elicit cross-
examination testimony if introduced solely to contradict it with
extrinsic evidence. Correia v. State, 654 So. 2d 952, 954–55 (Fla.
4th DCA 1995). Thus, the first issue is whether the court abused
its discretion in determining that K.M.’s proferred testimony that
Macomber molested A.M. was “collateral” in that it was offered
solely to contradict it with A.M.’s testimony, and therefore
irrelevant.
Macomber did not wish to elicit testimony from K.M. that he
molested A.M. in a direct attempt to disprove the charged crime.
That would be irrational: testimony that Macomber molested
A.M. would do nothing to disprove that he molested K.M., and in
fact would probably harm him. Rather, Macomber argued that
such evidence, when contradicted by A.M.’s denial, would
negatively affect K.M.’s credibility and allow the jury to
determine whether K.M. or A.M. was telling the truth.
“The test for determining whether a matter is collateral or
irrelevant ‘is whether the proposed testimony can be admitted . . .
for any purpose independent of the contradictions.’” Alexander v.
State, 103 So. 3d 953, 954 (Fla. 4th DCA 2012) (citations
omitted). “Two types of evidence pass this test: 1) facts relevant
to a particular issue; and 2) facts which discredit a witness by
10
pointing out the witness’s bias, corruption or lack of competency.”
Anderson v. State, 133 So. 3d 646, 647 (Fla. 1st DCA 2014)
(citation omitted). Macomber did not suggest that the proffered
testimony of K.M. demonstrated her bias, corruption, or lack of
competency; he sought it only to impeach her credibility. And, as
stated, testimony that Macomber molested A.M. was not
independently relevant to prove that he did not molest K.M. For
these reasons, the court did not abuse its discretion in ruling that
the disputed evidence was collateral and irrelevant. See also
Griffin, 827 So. 2d at 1099 (holding that the disputed impeaching
cross-examination “had no relevance to the central issue
concerning the guilt or innocence of the Appellant”); United
States v. Payne, 102 F.3d 289, 294-295 (7th Cir. 1996) (holding
that impeaching testimony was collateral where it was not
related to the central issue concerning defendant's guilt or
innocence). As such, the trial court did not abuse its discretion in
ruling that K.M.’s testimony was collateral and irrelevant.
While he never argued it below, Macomber also suggested at
oral argument that K.M.’s testimony that he molested A.M. was
inherently incredible due to the taboo against incest. Thus, the
very fact that K.M. made that claim would impeach her
credibility. However, if this were true, it would not require A.M.’s
testimony contradicting it; the mere fact that she made an
outlandish accusation would have been enough to affect K.M.’s
credibility negatively. For instance, if K.M. had testified that a
fictional character was in the room when Macomber molested her
and that Macomber molested the fictional character too,
Macomber would not need to present a witness to testify that the
character was not real. The mere fact that K.M. said it would
impeach her credibility.
Such testimony suggests the witness’s lack of competency. In
such a case, the evidence would be admissible. See Anderson, 133
So. 3d at 647 (a fact that discredits a witness by pointing out lack
of competency is not collateral and may be used for
impeachment); § 90.608(4) & (5), Fla. Stat. Under section 90.608,
a party may attack the credibility of a witness by “[s]howing a
defect of capacity . . . in the witness to observe, remember, or
recount the matters about which the witness testified.”
Testimony that Macomber molested a fictional character could
11
touch on the witness’s competency to testify and be admissible.
Conversely, the court here could have found that K.M.’s claim
that Macomber molested A.M. was not so inherently incredible
that it implicated K.M.’s competency.
A simple rule would apply this standard: if the witness’s
credibility is not negatively impacted by the disputed testimony
unless it is contradicted, then the disputed testimony is collateral.
Here, in spite of Macomber’s suggestion that the taboo against
incest renders K.M.’s testimony inherently incredible, the trial
court could reasonably have concluded that it was not, that it did
not impeach K.M. without A.M.’s contrary testimony, and found
the testimony collateral and irrelevant.
B. A.M.’s testimony
As stated, the court did not abuse its discretion in
determining that K.M.’s proffered testimony regarding Macomber
molesting A.M. was collateral. And if this evidence was collateral,
it could not be contradicted by A.M.’s testimony. See Foster v.
State, 869 So. 2d 743, 745 (Fla. 2d DCA 2004) (“Generally,
impeachment on a collateral issue is impermissible.”). Therefore,
the court did not abuse its discretion in excluding A.M.’s
testimony contradicting K.M.’s account of abuse of A.M.
The majority opinion distinguishes cases on which the State
relied, noting that those cases involved impeachment testimony
that a witness “had previously made false criminal allegations
about third parties.” Maj. op. at 5. In other words, according to
the majority, because the molestation of A.M. allegedly occurred
in the same episode as the molestation of K.M., evidence relating
to the molestation of A.M. was not collateral. But in fact, courts
apply the collateral impeachment rule even when the evidence
occurred in the same episode as the charged crime. See e.g.,
Anderson, 133 So. 3d at 647 (holding that identity of victim’s
clothing at time of sexual battery is collateral); Foster, 869 So. 2d
at 745 (holding that the question of whether the defendant’s car
brakes were functional in a leaving the scene of the accident
prosecution is collateral); Mills v. State, 681 So. 2d 878, 880 (Fla.
3d DCA 1996) (holding that the question of whether a sexual
battery victim voluntarily entered the defendant’s residence is
collateral).
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Indeed, the fact that the disputed evidence here involved the
same episode as the charged crime impacts the question whether
it was collateral. But this fact alone is not enough. Even if the
disputed evidence occurred in the same episode as the charged
crime, the trial court could still properly find that the disputed
evidence was collateral. For example, a witness may make all
sorts of observations when talking to police about a charged
crime. A court must be able to rule that some of those
observations are collateral to the charged crime, and cannot be
introduced in cross-examination or impeached with extrinsic
evidence, in order to ensure the efficiency of trials. A trial court is
charged with determining whether such observations are
collateral, or are important to the offense. The court did so here,
and we should not second-guess it. Taking all of the factors into
consideration, the trial court did not abuse its discretion in
finding that the disputed evidence was collateral and irrelevant.
III.
Although the disputed evidence here involved a collateral
crime allegedly committed by Macomber, the majority finds that
the evidence is nonetheless admissible because it is “inextricably
intertwined” with the charged crime. Because a court does not
abuse its discretion admitting such inextricably intertwined
crimes, the majority finds, conversely, that the trial court here
did abuse its discretion in excluding evidence of the collateral
crime. This analysis suffers from two flaws. First, it confuses the
“collateral impeachment” rule with the “collateral crime” rule.
Second, it misapplies the collateral-crime cases on which it relies.
Evidence of collateral crimes is “inadmissible when the
evidence is relevant solely to prove bad character or propensity.”
Wright v. State, 19 So. 3d 277, 291–92 (Fla. 2009). However,
evidence of collateral crimes is admissible “to adequately describe
the offense or connect the elements of the offense because the
charged offense and the other conduct are significantly linked in
time and circumstance.” Id. at 292. In this instance, it is said that
the collateral crime is “inextricably intertwined” with the charged
crime, and may be admitted. Id. The majority finds that the
alleged crimes against A.M. are inextricably intertwined with the
13
charged crime, and therefore must be admitted. I disagree that
this rule requires admission here.
First, Macomber tried to introduce this evidence not because
it would help “adequately describe the (charged) offense,” but
because it would impeach K.M.’s testimony. The State did not
argue against admission because it was a collateral crime offered
to prove propensity. The possibility that the disputed evidence
here is a collateral crime inextricably intertwined with the
charged crime has nothing to do with Macomber’s reason for
introducing it, or with the State’s reason for objecting to it, or
with the trial court’s reason for excluding it. Macomber
specifically wanted the collateral crime to demonstrate that the
victim was lying. Whether she was lying is irrelevant to whether
the collateral crime is inextricably intertwined with the charged
crime. The fact that the evidence may have been admissible
under the collateral-crime rule has nothing to do with the fact
that the evidence was collateral and offered solely for the purpose
of impeachment and cannot be contradicted by extrinsic evidence,
which is why the court excluded it. A collateral crime can still be
inadmissible if it is collateral impeachment. These concepts have
little in common, except that they both use the word “collateral.”
Second, even if the majority were correct that we should
analyze this case under the collateral-crime rule, the cases the
majority cites do not support the conclusion that the trial court
here erred in excluding the evidence. The majority cites Dorsett v.
State, 944 So. 2d 1207, 1213 (Fla. 3d DCA 2006); Wright, 19 So.
at 292; and Griffin v. State, 639 So. 2d 966, 969 (Fla. 1994), for
the general proposition that the trial court may admit, over
defense objection, evidence offered by the State that the
defendant committed an uncharged crime on the ground that it is
inextricably intertwined with the charged offense. While true,
this statement does not apply here. Those cases merely ruled that
the trial court did not abuse its discretion in admitting the
disputed evidence. But a ruling that a trial court may exercise its
discretion by admitting evidence does not mean that a court must
admit this evidence, or that excluding the evidence constitutes an
abuse of discretion. In many cases, neither admission of evidence
nor exclusion of the same evidence constitutes an abuse of
discretion. Thus, even if the inextricably-intertwined crime rule
14
were the issue (which it is not), the cases do not support the
proposition that the court here abused its discretion in excluding
the disputed evidence.
The court here made the difficult choice that the disputed
evidence was collateral and irrelevant and could not be
impeached. The decision was, at the least, reasonable. That is all
required to affirm the ruling, even if another judge could properly
reach the opposite conclusion. For this reason, I would find that
the trial court did not abuse its broad discretion in excluding the
evidence, and affirm Macomber’s judgment and sentence.
_____________________________
Andy Thomas, Public Defender, Glen P. Gifford, Assistant Public
Defender, Tallahassee, for Appellant.
Pamela Jo Bondi, Attorney General, Trisha Meggs Pate,
Tallahassee Bureau Chief, Criminal Appeals, Robert Lee,
Assistant Attorney General, Tallahassee, for Appellee.
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