HERMAN FARRELL v. STATE OF FLORIDA

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
HERMAN FARRELL,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D18-683
[May 29, 2019]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Andrew L. Siegel, Judge; L.T. Case No. 14-14305CF10A.
Carey Haughwout, Public Defender, and Kai Li Aloe Fouts, Special
Assistant Public Defender, West Palm Beach, for appellant.
Ashley B. Moody, Attorney General, Tallahassee, and Deborah Koenig,
Assistant Attorney General, West Palm Beach, for appellee.
GROSS, J.
Herman Farrell appeals his conviction of first-degree murder for
shooting his lifelong friend, Sean Fleming. We reverse because where the
sole defense to the crime was self-defense, the trial court erred in excluding
evidence of the victim’s prior act of violence which was known to the
defendant.
Both Farrell and the victim were drug dealers and, according to the
testimony at trial, drug users. The two eyewitnesses to the shooting,
Jacqueline Hutchinson and Nicole Bazini, partied and did drugs with
Farrell and the victim. Things began to go downhill when Farrell got angry
because when he woke up his gun and some drugs were missing. During
Farrell’s angry search for his property, he learned that the victim had his
things. The victim put the gun in a sock, taunted Farrell with it, and
refused to give it back.
The shooting occurred outside of a condominium complex. Hutchinson
and Farrell had been driving around together; she said he smoked about
thirty Flakka cigarettes and described himself as “a beast.” When they got
back into the complex, Hutchinson ran into Bazini’s unit and told the
victim that there was something wrong with Farrell, that he was acting
very angry, and that he had kidnapped her.
According to Hutchinson, she and the victim came out of Bazini’s unit
together. The victim had the sock with the gun in it and was waving it
over his head. He said, “You like to beat women. I have your gun. You’re
not getting it.” Hutchinson testified that the victim “never said another
word.” She said that the victim never threatened Farrell and that when
the victim turned to go back into the condominium, Farrell bent down
behind her car and opened fire with a handgun.
Bazini testified that Farrell “freaked out” when she told him that the
victim had taken his gun and drugs. Knife in hand, she said Farrell
dragged Hutchinson by her hair out of the condo. During the day, Bazini
witnessed the victim smoking Flakka. Later on, while he was in the
process of moving out of Bazini’s unit, he tucked the sock covered gun into
his waistband. When Hutchison and Farrell pulled up, the victim pulled
the sock and gun out and began to swing it, “like taunting,” and left the
house to confront Farrell. Bazini did not witness the shooting, but she did
hear Farrell say, “I am going to kill you.”
On the state’s motion, the trial court excluded Bazini from testifying
that, in Farrell’s presence, the victim had hit her in the back of the head
several days before he was killed.
During Farrell’s testimony, he claimed that he shot the victim in self-
defense. The victim was his best friend and “brother”; they had known
each other for thirty years. He suggested that the victim’s murder of a
mutual friend had cooled their relationship.
Sustaining the state’s objection, the trial court precluded Farrell from
testifying that he had witnessed the victim beating Bazini three days before
the shooting, that he had to stop the victim from kicking Bazini on the
floor, and that ever since the victim started smoking Flakka, he had seen
him threaten and pull guns on people. Precluded from bringing up specific
acts of violence, Farrell was permitted to testify about the victim’s
reputation for violence in the community.
When the victim walked out of Bazini’s condo, Farrell claimed “he was
belligerent towards me and pointing the gun at me and threatening me.”
Farrell shot the victim. When asked what was going through his mind
before he fired, Farrell said:
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I knew he was not being himself. He was not looking at me as
his brother anymore at this point. He was very unpredictable
at this point. . . . He shot and killed somebody that was close
to us. At that point I didn’t want to become a victim. I had to
basically do what I had to do.
He testified that if he had not shot the victim, his fear was that he would
get “shot and killed.”
Forensic testimony established that Farrell fired twelve shots from an
automatic or semi-automatic handgun, with nine bullets hitting the
victim.
Farrell challenges the exclusion of evidence about the incident that
occurred three days before the killing during which the victim hit Bazini
in the back of the head and beat her up, and Farrell had to stop him from
kicking her when she was on the ground. 1
A defendant asserting self-defense lays the predicate for admission of
evidence of prior specific acts of violence by the victim by presenting
evidence that:
1. He knew about the prior violent act at the time he committed the
crime against the victim; and
2. the victim made some overt act at or about the time of the crime
which may be reasonably regarded as placing the defendant in
imminent danger.
See Williams v. State, 252 So. 2d 243, 247 (Fla. 4th DCA 1971). “[A]
defendant’s knowledge of a victim’s specific acts of violence is a
precondition to admissibility.” Antoine v. State, 138 So. 3d 1064, 1076
(Fla. 4th DCA 2014). “A defendant need not be present when the prior
acts occur, as long as he or she has knowledge of the acts at the time of
the incident in question.” Hedges v. State, 667 So. 2d 420, 423 (Fla. 1st
DCA 1996).
1
Farrell also challenges the exclusion of an incident where the victim pulled a
gun on Hutchison. Defense counsel did not proffer evidence that Farrell knew
about this prior violent act, so the necessary predicate was not laid to establish
the relevancy of the testimony. See Singh v. State, 36 So. 3d 848, 851 (Fla. 4th
DCA 2010) (no error excluding prior violent act evidence where there was no
testimony that the defendant knew of the specific prior violent act); Covington v.
State, 302 So. 2d 483, 484 (Fla. 2d DCA 1974) (no error excluding evidence of
victim’s prior violent acts that were unknown to the defendant).
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The defendant need only show the “‘slightest evidence’ of an overt act
by the victim ‘which may be reasonably regarded as placing the accused
apparently in imminent danger of losing his life or sustaining great bodily
harm.’” Quintana v. State, 452 So. 2d 98, 100 (Fla. 1st DCA 1984) (quoting
Hawthorne v. State, 377 So. 2d 780, 787 (Fla. 1st DCA 1979)).
Once the proper predicate is laid, “all doubts as to the admission of
self-defense evidence must be resolved in favor of the accused.” Smith v.
State, 606 So. 2d 641, 643 (Fla. 1st DCA 1992). “The right to testify
includes the right to testify fully, without perjury, to matters not precluded
by a rule of evidence.” Wilson v. State, 12 So. 3d 292, 297 (Fla. 4th DCA
2009).
Evidence of the victim’s prior violent act of beating up Bazini, was
relevant, and admissible, and erroneously excluded. The issue was
preserved for appellate review.
There are two distinct pieces of evidence that should have been
admitted:
(1) The defendant’s testimony that he knew about the specific act of
violence was admissible and relevant to show “the reasonableness
of the defendant’s apprehension to support a self-defense claim.”
State v. Smith, 573 So. 2d 306, 318 (Fla. 1990).
(2) Bazini’s testimony about the violent act was admissible and
relevant to corroborate the defendant’s testimony. Id.We reject the State’s argument that the issue was not preserved
because defense counsel only provided the court with a modicum of
information regarding the desired testimony, and did not proffer the
specific content which would have preserved the issue for appellate review.
We find Woodson v. State, 483 So. 2d 858 (Fla. 5th DCA 1986),
distinguishable. There, defense counsel sought to introduce evidence of a
victim/law enforcement officer’s reputation. When the court excluded the
testimony, counsel did not make a proffer. The trial court was aware of
the “general thrust and content” of the expected testimony because
counsel told the court that he wanted to establish the officer’s “harassment
of people in doing this kind of thing.” Id. at 859. The appellate court found
the proffer insufficient because the defendant failed to show the “relevancy
and materiality” of the anticipated testimony. Id.-4-
In contrast, here, in support of the State’s motion in limine, the
prosecutor told the court of the content of Bazini’s testimony – that the
victim hit Bazini three times in the head. Statements of counsel can
constitute a sufficient proffer. Charles W. Ehrhardt, 1 Fla. Prac., Evidence
§ 104.3 (2018 ed.). As for the defendant’s anticipated testimony, he was
placed on the stand outside of the presence of the jury and testified on the
record about the incident. Sufficient to show the relevancy and materiality
of the excluded testimony, these proffers were adequate to preserve the
issue for appellate review.
Here, Farrell testified to the “overt act” necessary for admission of
evidence of the victim’s prior violent act by saying that the victim took the
defendant’s loaded Smith and Wesson 40-caliber automatic handgun and
approached the defendant while brandishing it. Such conduct by the
victim just prior to the shooting could be reasonably regarded as placing
Farrell in imminent danger. See Quintana, 452 So. 2d at 100. The
defendant established the relevance of the prior violent act by establishing
that he had knowledge of the incident because he was present at the time
it occurred. Finally, Farrell established the materiality of the incident by
testifying that the victim committed a violent act against Bazini a few days
before he was killed. The defendant thus laid an adequate foundation for
the admission of the evidence. “[A]ll doubts as to the admission of self-
defense evidence must be resolved in favor of the accused.” Smith, 606
So. 2d at 643; see also Wilson v. State, 971 So. 2d 963, 965 (Fla. 4th DCA
2008) (reversing where the defendant laid the proper predicate for
admission of evidence of the victims’ prior violent acts and the jury
convicted the defendant without hearing any evidence of the history
between the defendant and the victims); Grace v. State, 832 So. 2d 224,
226 (Fla. 2d DCA 2002) (where the defendant asserted self-defense and
laid the proper predicate for admission of evidence of the victim’s prior
violent acts, exclusion of the evidence was reversible error).
Finally, we conclude that the exclusion of evidence of the victim’s prior
violent act was not harmless error. This court may reverse a trial court’s
judgment excluding evidence “when a substantial right of the party is
adversely affected.” § 90.104(1), Fla. Stat. (2017). “When a defendant’s
sole defense is self-defense, it may be prejudicial error to exclude
competent evidence supporting that defense.” Mohler v. State, 165 So. 3d
773, 775 (Fla. 2d DCA 2015); see also Hughes v. State, 36 So. 3d 816, 817
(Fla. 1st DCA 2010) (“Given that Appellant’s entire case rested on the
theory of self-defense, we are unable to say that the error in excluding the
testimony regarding his knowledge of his girlfriend’s prior acts of violence
had no effect on the jury’s verdict despite the fact that the jury heard
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testimony about some of the acts.”); Smith, 606 So. 2d at 643–44
(“Considering the nature of the evidence in this case, especially the
conflicts between the theories offered by the two sides and the fact that
the erroneously excluded evidence went to appellant’s only defense, the
error must be considered harmful.”).
Here, neither the defendant nor the eyewitnesses to the shooting were
paragons of probity. As discussed above, Farrell’s testimony was relevant
to show that his apprehension of the victim was reasonable. Bazini’s
testimony was relevant to corroborate the defendant’s testimony that the
violent incident occurred. In closing argument, the prosecutor highlighted
the absence of any testimony that corroborated the defendant’s claim that
the victim was violent:
The only person that testified, remember, that [the victim] was
violent and aggressive was the defendant. He had an interest
in the outcome of the case. He is a two-time convicted felon.
Jacqueline Hutchinson, Nicole Bazini. Both testified and were
consistent that [the victim] when he used drugs was not
aggressive, was not violent. He was euphoric, irritable, not
aggressive and not violent.
Where a defendant’s entire defense hinges on self-defense, “the
reasonableness of the apprehension in the mind of the defendant at the
time of the slaying” is a crucial fact. Williams, 252 So. 2d at 247. We
cannot say that “there is no reasonable possibility that the error
contributed to the conviction.” State v. DiGuilio, 491 So. 2d 1129, 1135
(Fla. 1986).
Reversed and remanded for a new trial.
TAYLOR and LEVINE, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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