Opinion
No. 1D21-2113
11-09-2022
Timothy D. MARTIN, Appellant, v. STATE of Florida, Appellee.
Jessica J. Yeary, Public Defender, and Kevin P. Steiger, Assistant Public Defender, Tallahassee, for Appellant. Ashley Moody, Attorney General, and Zachary Lawton, Assistant Attorney General, Tallahassee, for Appellee.
Jessica J. Yeary, Public Defender, and Kevin P. Steiger, Assistant Public Defender, Tallahassee, for Appellant.
Ashley Moody, Attorney General, and Zachary Lawton, Assistant Attorney General, Tallahassee, for Appellee.
Ray, J. Timothy D. Martin appeals his conviction of attempted first-degree murder with a firearm and his resulting life sentence. He argues that the trial court erred by declining his request for recross-examination of the victim and overruling his objection to a portion of an officer's body camera footage. For the reasons discussed below, we find that these arguments were not preserved and do not constitute fundamental error. We thus affirm.
I
We begin with a close examination of the facts and relevant procedural history. Before trial, Martin filed a motion in limine seeking to redact portions of a recorded 911 call in which the victim, who believed he was dying, asked to see his children to tell them goodbye. Martin urged that these portions of the call were more prejudicial than probative and would inflame the emotions of the jury. He also requested that a mention of prior law enforcement activity at the victim's address be redacted. The trial court agreed that the mention of the prior law enforcement activity should be redacted, but otherwise denied the motion. Later, the State agreed to redact most of the challenged portions of the 911 call.
The evidence presented at trial established that Kevin Dodson, Martin, and the victim were all friends who lived in the same neighborhood. Martin and the victim lived across the street from each other, and Dodson lived down the street from them. All three men were truck drivers who had worked together at different points in time. Martin and the victim had disagreements in the past. The main point of friction between the two men was that the victim sometimes tried to give Martin advice on how to be a better husband and father. He told Martin to spend more time with his family and less time drinking. This advice annoyed Martin, although Martin acknowledged that he had a drinking problem. Their only prior altercation had been a playful wrestling match that occurred about a year before the offenses. During that match, the victim got Martin into a chokehold and when Martin "tapped out," the victim let him go.
On the afternoon of January 10, 2020, the victim and Martin spoke in the victim's driveway. At the time of trial, the victim did not remember the conversation. But Dodson saw the two men talking, and Martin testified to the content of the discussion. According to Martin, the victim had agreed to help him repair a hole in the muffler of his truck. They also talked about Martin's drinking problem, and the victim advised Martin not to neglect his family. Annoyed, Martin departed, although he claimed he was still planning to return to the victim's house the next day to work on his truck.
At about 5:00 or 6:00 p.m., Martin went to Dodson's house to drink in the "man cave"—a tent with a TV, refrigerator, and air conditioning unit—that Dodson had set up beside his house. According to Dodson, Martin had brought over two twelve packs of beer that evening, one for himself and one for Dodson. Martin often spent time in the man cave with Dodson. The victim had never joined them there. Still, at about 8:37 p.m., Martin texted the victim and invited him over. The victim was in the workshop he had created in the barn behind his house, drinking alcoholic beverages and putting his tools away. He did not respond to Martin's text.
At around 10:00 p.m., Martin texted to tell the victim, "You broke my heart tonight." At trial, Martin explained that the victim had hurt his feelings during their earlier conversation, and he had invited the victim to the man cave to make up. It upset him even more when the victim did not respond. From that point, the text message conversation deteriorated. The victim tried to give Martin advice. This advice offended and angered Martin. The victim grew frustrated and told Martin he did not want to be his friend anymore. Toward the end of the conversation, the victim texted, "Don't get slick and think I won't find out where you are and beat your ass too." At trial, the victim testified that he had no intention of carrying out the threat. He was merely annoyed and wanted Martin to leave him alone.
While this conversation was occurring, Dodson noticed Martin texting. Then Martin grew upset. He told Dodson that Dodson was a true friend who had never disrespected him, and Martin was tired of people disrespecting him. Sometime between 10:30 p.m. and 12:00 a.m., Martin left the man cave for about half an hour. What happened during that absence is disputed.
The victim testified that twenty or thirty minutes after the text message conversation, he looked up to find Martin standing outside of his barn. When he walked over to see what Martin wanted, Martin grabbed him by his shirt collar. They struggled and the victim stumbled as he tried to free himself. Martin pulled a gun and started firing. The first bullet missed. As the victim tried to break Martin's grip on his collar, the second shot hit him in the lower right side of his ribcage, mid-torso. The bullet shattered his rib, struck his lung and liver, and lodged inside him. His lung filled with blood, incapacitating him. A third shot struck the left side of his neck, hitting his spinal cord and paralyzing him instantly from the chest down. The victim collapsed, and Martin shot him twice more in the back.
According to Martin, he went to the victim's barn to make up with him. He brought Dodson's gun with him for protection. He walked up to the victim's barn and called his name. Without a word, the victim ran outside and attacked him. Martin claimed to be afraid because the victim was younger, stronger, and "better trained." He also testified that he had been scared during the wrestling match a year earlier because he was unable to breathe when the victim had him in a chokehold. The memory of the wrestling match came back to him during the altercation because the victim put his hands on Martin's neck. Martin tried to push the victim away, but he kept coming. Martin pulled his gun and fired rapidly until all the bullets were gone. Then he ran away. He did not call the police or stop to see if the victim needed help. He admitted that the victim had never used a weapon against him and did not have any weapons on him that night.
Martin returned to Dodson's house, where he told Dodson he had shot the victim because the victim had attacked him. He gave Dodson back his gun. Dodson thought Martin was drunk and talking nonsense, so he locked the gun in his car and went to bed. Martin remained in the man cave.
Meanwhile, the victim was lying in his yard, calling for his wife and trying to crawl to the house using only his arms. After about thirty minutes, his wife woke up and came outside to find him. The victim told her that Martin had shot him. She called 911.
The 911 call was played for the jury. The victim's wife explained to the dispatcher that her husband had been shot by their neighbor. She described wounds on the back of his neck, his chest, and his back. She was concerned because the victim was over 200 pounds, so she could not turn him over to put pressure on the wounds on his back. When the dispatcher asked if Martin and the victim had been arguing, the wife said, "No. I mean, maybe, but they work together and they're neighbors." The victim told his wife repeatedly to tell the police that the evidence was on his cellphone, which he had left in the barn. The victim explained that Martin shot him because he was mad. The victim said, "I told him that I didn't want to mess with him anymore," adding, "I was trying to help him be a better husband." He explained that afterward, Martin showed up with a pistol. The victim told his wife that he tried not to wrestle with Martin at all. The 911 dispatcher asked if Martin came looking for a fight and the victim replied, "Yes, ma'am." The victim expressed concern that he had lost a lot of blood and did not want to die. He told the dispatcher and his wife that he was paralyzed. His wife apologized for not finding him sooner, explaining that she had been asleep with the baby.
At around 12:40 a.m., Sergeant Hannah Haas arrived on the scene. Footage from her body camera was introduced. While she and other officers were discussing the victim's injuries, the victim's wife advised, "He's got three babies inside he wants to see." Sergeant Haas replied, "Okay." She asked the victim's wife where the police could find Martin. As Sergeant Haas directed the other officers to set up a perimeter, the victim continued to urge the police to look at his cellphone. He also talked about how he was paralyzed and could not feel his legs. His wife told him she loved him, that it would be okay if he was paralyzed, and they had been married twelve years and had a lot longer to go. Other clips from the body camera showed Sergeant Haas speaking to Martin on the phone and giving him directions to turn himself in. Martin complied, walking down the street from Dodson's house until he was met by police.
After Martin's arrest, a recorded interview was conducted at the sheriff's office. At first, Martin told the detectives that he had no idea what had happened. He said he was drinking at Dodson's and the next thing he knew, he was in a police car. He told them he had not left Dodson's from 8:00 p.m. until the police picked him up. He acknowledged that he had been drinking heavily. He also admitted to texting the victim but claimed they were discussing the victim's argument with someone else.
Eventually, Martin mentioned that he had argued with the victim in the past because the victim treated him like a child and told him he was stupid for listening to other people. Martin noted that the victim "does have his stuff together," while Martin considered himself to be "a screw-up." After a few more questions, Martin admitted that he had gone to the victim's house the night before. The victim had texted that he did not want to be friends with Martin anymore. In the past, Martin had tried to maintain their friendship because their young children were friends, but he was tired of doing so. He told the police he went to the victim's house, where they spoke for about half an hour. Then the victim cursed at him, so he went back to Dodson's house.
The detectives challenged Martin's story. Martin insisted that he was telling the truth and did not know what had happened. A detective noted that police had spoken to the victim, his wife, and the neighbors. Martin then said that he had argued with the victim, and he was afraid of him. He said the victim had attacked him, and he had defended himself by shooting at the victim until he emptied the magazine. Martin lamented that he was going to jail for murder because he had admitted to killing someone. He explained that he shot the victim "center mass," just as he had been trained. He claimed that he and the victim had been in multiple fights before and the victim had choked him so badly that he could not breathe the next day. He had been afraid it would happen again. He described obtaining the gun from Dodson, who was not supposed to have it because he was a felon. Martin explained that he had taken the gun for protection. Then he said he asked Dodson for it "jokingly" after fighting with the victim all night. He claimed he did not take the gun to hurt the victim.
Martin said that when he went to the victim's house, they were talking, "having the same conversation." The victim rushed up and grabbed Martin's throat, so Martin shot him. Martin added, "But I mean, as far as I'm concerned, he deserved to die because, I mean, he came after me. It was either me or him, the way I look at it." At another point, he told the police, "It wasn't [Dodson's] fault, it wasn't my fault. [The victim] shouldn't have attacked me." He claimed that he felt the victim's hands on his neck. When the detectives asked why he did not call 911, Martin said he was not sure if he had hit the victim. The detectives noted that Martin had said that he saw the victim fall. Martin claimed it happened so fast and there were blue and red lights everywhere, so he ran. He stated that help was already there. The detectives asked how he had time to get rid of the gun if police responded that quickly. Martin replied, "I was also drinking." The detectives observed that the victim had been shot in the back and Martin said, "No, I didn't shoot him in the back. I shot him in the face, in the front." He explained that the victim may have fallen while he was shooting, but he did not know because he was trying to escape. Then Martin explained that as soon as he showed up, the victim rushed him without a word and tried to grab his throat. Martin told the police that in their past altercations, the victim "always" attacked him by grabbing his throat. He described shooting at the victim while he was six feet away. The detectives asked how the victim touched his throat from six feet away, and Martin said, "I actually kind of feel it where he put his hands on me. It's kind of sore."
Martin's account of what happened to the gun was also inconsistent. At first, he told the police he threw it in the woods. Next, he said he threw it in the Santa Fe River. He said Dodson drove him to the river to help him get rid of it. Then he said he dropped the gun at the victim's house and ran. When the detectives questioned that story, Martin said Dodson went to the victim's house, retrieved the gun, and threw it in the river. The detectives noted that Martin had said earlier that he went with Dodson, but Martin replied that he stayed in the man cave while Dodson took care of it. He claimed that Dodson told him that he had thrown the gun in the river. Later, Martin said Dodson had gotten rid of the gun, but had not retrieved it from the victim's house. Rather, Martin had given it to him. He explained that he threw the gun down, but he must have picked it up. Then he corrected himself, saying he never threw the gun down, he brought it to Dodson's house. Martin said Dodson had not told him that he threw the gun in the river; Martin had assumed that was what he had done with it. Ultimately, the police found the gun in the trunk of Dodson's car.
Following the offense, the victim was hospitalized for two months. He suffered a stroke due to blood loss. Blood had to be drained from his lungs, and a bullet was removed from his body. He is a quadriplegic, paralyzed from the upper chest down. He showed the jury his injuries, including bullet wounds on his right side near the ribs, on the left side of his neck, and two in his back.
At the end of the trial, the jury convicted Martin of attempted first-degree murder with special findings that he possessed and discharged a firearm causing great bodily harm. The trial court sentenced him to a mandatory minimum sentence of life in prison. This appeal followed.
II
In Martin's first argument on appeal, he claims that the trial court improperly denied his request for recross-examination of the victim. He asserts that the issue was preserved because the trial court's denial expressed a court policy against permitting recross-examination. Even if the issue were not preserved, he claims the error was fundamental because it amounted to a denial of due process. He alleges that the trial court denied him the ability to fully cross-examine the only eyewitness, explaining that the victim was more specific about the timing of the gunshots during redirect-examination. He argues that if he had been able to recross the victim, he might have been able to buttress his self-defense theory and impeach the victim.
To preserve an objection to a trial court's ruling excluding evidence, a party must proffer the evidence below unless it is clear from the context of the questions what the evidence would have been. See § 90.104(1)(b), Fla. Stat. (2020). In the context of recross, this requires at a minimum that the party proffer the proposed question. Palos v. State , 306 So. 3d 331, 335 (Fla. 3d DCA 2020). Without a proffer, an appellate court cannot determine whether an error occurred, let alone a fundamental error. See Finney v. State , 660 So. 2d 674, 684 (Fla. 1995) ("Without a proffer it is impossible for the appellate court to determine whether the trial court's ruling was erroneous and if erroneous what effect the error may have had on the result.").
In this case, Martin did not proffer, or even seek to proffer, the questions he would have asked the victim on recross-examination. Nor is it apparent from the record what he would have asked on recross or how the victim would have responded. Without a proffer, we can only speculate about what recross might have revealed.
We are unpersuaded by Martin's argument that the trial court denied him the opportunity to make a proffer by having a policy against recross. The trial court's statement "[t]here is no recross," in the context in which it was made, could have meant that recross was not warranted absent new material developed on redirect examination. Indeed, as we discuss below, that was an accurate assessment of the situation. What's more, nothing in the record suggests that the trial court prevented Martin from making a proffer. "Instead, [defense] counsel merely acquiesced to the trial court's denial." Palos , 306 So. 3d at 335.
In any event, there is no error, let alone fundamental error. A trial court typically has broad discretion in the decision to permit or deny recross-examination. Chambers v. State , 200 So. 3d 242, 246 (Fla. 1st DCA 2016). Recross-examination is not appropriate where redirect-examination merely explores details raised during cross-examination. See Hurst v. State , 825 So. 2d 517, 517 (Fla. 4th DCA 2002). But when a new matter is raised during redirect, the trial court abuses its discretion when it denies recross, as it effectively denies the opposing party the opportunity to cross-examine the witness on that subject. Kelly v. State , 842 So. 2d 223, 226 (Fla. 1st DCA 2003). Reversal is required when the matter raised on redirect goes to an issue at the heart of the case. Bordelon v. State , 908 So. 2d 543, 546 (Fla. 1st DCA 2005).
Here, no new matter was raised on redirect. On direct examination, the victim testified that Martin grabbed his collar, they struggled briefly, then Martin fired the gun. He explained that the first bullet missed him, but the second bullet struck him in the mid-torso, hitting his liver, lung, and rib. He testified that he was "incapacitated" by that shot. The third bullet struck his spinal cord and paralyzed him, causing him to collapse. Then Martin shot him twice more in the back.
On cross-examination, Martin asked the victim about the timing of the gunshots, eliciting testimony that only a few seconds passed from the moment Martin grabbed him until the first shot was fired. The victim explained that the whole altercation lasted less than a minute and he was struggling with Martin until he hit the ground. Later, he clarified that he fought until he was shot in the side but did not fall until he was shot in the neck. He testified that he was still pushing Martin away until he collapsed.
On redirect, the victim explained that he struggled for longer than ten seconds before he collapsed. He estimated that it was less than ten seconds between Martin grabbing his collar and the second bullet being fired. The victim explained that he resisted Martin until his lung filled with blood and he could not breathe. When that happened, he lost the strength to fight. But he did not fall until the third bullet struck his spinal cord. At that point, he could not move any part of his body except for his arms. Martin then shot him twice more in the back.
Under these circumstances, Martin has shown no error. The victim testified on direct about the timing of the altercation and the gunshots. He was also asked about the timing of the events on cross-examination. He did not develop any new material during redirect, nor did he contradict his prior testimony in a manner which merited further inquiry. Therefore, the trial court properly denied recross.
III
In Martin's second argument on appeal, he asserts that the trial court erred by overruling his objection to a portion of Sergeant Haas's body camera footage. The challenged portion of the footage depicted the victim's wife telling the police that the victim wanted to see his three children. He argues that this section was unduly prejudicial and improperly elicited sympathy for the victim.
Preservation of an issue for appellate review requires an objection at the time of the alleged error specific enough to notify the trial court of the grounds for the objection and the relief sought. See §§ 90.104(1)(a) ; 924.051(1)(b), Fla. Stat. (2020) ; Gore v. State , 964 So. 2d 1257, 1265 (Fla. 2007).
When the State moved to introduce Sergeant Haas's body camera footage, defense counsel replied, "No objection, Your Honor. I've seen the items previously." After the first clip had been played, defense counsel asked to approach the bench. He objected, asserting that the audio had not loaded properly when he watched it before trial, so he had not heard the beginning of the clip. He did not identify a basis for his objection. The trial court noted his objection but overruled it. Without more, his after-the-fact objection failed to preserve this issue for appeal. See Braddy v. State , 111 So. 3d 810, 839 (Fla. 2012) (holding that an objection that identified no specific legal grounds did not preserve an issue for appeal).
On appeal, Martin seeks to bootstrap his objection to Sergeant Haas's body camera footage to the arguments in his pretrial motion in limine about the recorded 911 call. He asserts that the context for his objection should have been clear to the trial court based on that motion in limine. But not only did Martin's motion in limine not challenge any portion of the body camera footage, he did not reference the motion in limine or otherwise invoke the legal argument raised in that motion when he objected to the body camera footage. Thus, the motion in limine concerning the recorded 911 call did not preserve his challenge to the body camera footage. Cf. Manhard v. State , 282 So. 3d 941, 947 (Fla. 1st DCA 2019) (concluding that a pretrial motion in limine challenging portions of an exhibit did not suffice to preserve challenges to different parts of the same exhibit).
Without preserved error, Martin can only succeed on appeal if he shows that fundamental error occurred. See Jackson v. State , 983 So. 2d 562, 568 (Fla. 2008). A fundamental error is one that 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." Elliot v. State , 49 So. 3d 269, 270 (Fla. 1st DCA 2010) (quoting State v. Delva , 575 So. 2d 643, 644–45 (Fla. 1991) ).
Here, the verdict could have been obtained without the alleged error in admitting the statement that the victim had "three babies inside he wants to see." Not only was it a brief, isolated reference to the victim's desire to see his children, Sergeant Haas responded by changing the subject, asking about Martin's whereabouts, and directing the other officers to set up a perimeter.
Nor was the evidence so weak that it required the jury's sympathy to obtain a guilty verdict. The evidence reflected that on the night of the offense, Martin had argued with the victim via text message. Martin had been drinking heavily. He was hurt and angry because the victim had declined to spend time with him, had given him unsolicited life advice, and had told him that he no longer wanted to be friends with him. Martin told Dodson he was tired of people disrespecting him. He then took Dodson's gun and went to the victim's home. Martin claimed to have been wary of the victim because of previous altercations, describing several fights in which the victim had choked him. But the evidence reflected that the only altercation between the two men had been a playful wrestling match that ended when the victim got Martin in a chokehold and then released him when he "tapped out." Despite this fact, as well as the fact that the victim was unarmed that night, Martin shot him four times. Two of those shots were fired into the victim's back. Martin then fled the scene without seeking help. He did not speak to police until they called looking for him over half an hour after the shooting.
When Martin was interviewed, he repeatedly lied to the police. First, he first claimed that he had no idea what happened. It was only when he was advised that the victim and his wife had spoken to the police that he confessed to shooting the victim. He then gave multiple inconsistent accounts of what had happened during the altercation. He contradicted himself about whether he and the victim had spoken before the struggle, whether the victim touched him before he fired the gun, why he did not call the police, and what happened to the gun afterward.
By contrast, less than an hour after the altercation, the victim told the 911 dispatcher that Martin had shot him because he was mad. The victim said he had tried to give Martin advice to help him be a better husband and father. He also told Martin he did not want to "mess" with him anymore. The victim agreed that Martin had reacted by coming to his home looking for a fight, armed with a pistol. The victim told the dispatcher that he tried not to wrestle with Martin at all. And he made these statements while suffering from blood loss caused by multiple gunshot wounds and believing that he might die.
The victim testified consistently with those statements at trial, explaining that he had given Martin life advice which made Martin angry. The victim grew frustrated with Martin and told Martin he did not want to be his friend anymore. Afterward, Martin came to the victim's yard. When the victim walked over to meet him, Martin grabbed him by his shirt collar. The victim struggled to break free of Martin's grip, only to be shot twice in his neck and torso. Paralyzed by the shot to his spinal cord and incapacitated as his lung filled with blood, the victim collapsed to the ground. Martin then shot him twice more in the back. The victim then lay in his yard, crawling toward the house and calling for help, until his wife found him about thirty minutes later. Given this evidence and the nature of the alleged error, no fundamental error occurred, and Martin is not entitled to relief on this issue.
IV
In sum, Martin has not shown preserved or fundamental error on either of the issues he raises on appeal. His failure to proffer the questions he would have asked on recross leaves this Court with an insufficient record to evaluate whether he was prejudiced by the trial court's decision. In any event, the trial court did not err in denying recross where no new matter was raised during redirect. Martin also failed to identify a basis for his objection to the body camera footage. Even without the challenged portion of the footage, the State could have secured its guilty verdict based on the evidence introduced below. Thus, Martin is not entitled to relief.
AFFIRMED .
Nordby and Long, JJ., concur.