Opinion
Case No. 5D19-2152
05-22-2020
Charles James WILLOUGHBY, Appellant, v. STATE of Florida, Appellee.
James S. Purdy, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
James S. Purdy, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellant.
Ashley Moody, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
COHEN, J.
Charles Willoughby appeals his convictions and sentence for second-degree murder and grand theft. On appeal, he argues that the trial court erred in allowing testimony concerning a text message in which an unknown sender stated that he killed the victim and in giving a jury instruction on principals.
The victim, Mohammad Barak, was a drug dealer. On the evening before the murder, Willoughby spent the night at the victim's house. Jason Berardi, the victim's roommate, testified that on the morning of the murder, Willoughby asked him for drugs because the victim was still asleep in the master bedroom. Berardi complied with the request. While he was getting the drugs, Willoughby came up behind Berardi and showed him that he had a gun.
The victim had a surveillance camera in the front of his house which showed Berardi leave at 11:00 a.m. on the morning of the murder. At approximately 11:45 a.m., Willoughby left the house carrying a small safe. Willoughby then re-entered the house and emerged shortly thereafter with a larger safe. When Willoughby carried out the small safe, he was wearing Nike slide-on sandals, but when he re-emerged with the large safe, he was not wearing any shoes. Berardi returned to the house at 2:22 p.m.
Berardi testified that when he returned, the front door was locked, but the door to the master suite was open, which was unusual. Berardi investigated, found the victim, and called 911. Berardi identified the small safe as his own and the large safe as the victim's. Berardi testified that he did not give Willoughby permission to take his safe.
When investigators arrived at the house, there were no signs of forced entry; the doors were locked, the windows were screwed shut, and the house was not in disarray. Evidence was presented that the victim was dragged from the master bedroom doorway to the side of the bed. A crime scene technician testified that a Nike slide-on sandal was beneath the victim's body and the other sandal was nearby.
Ray and Kelly Gillespie testified that Willoughby had been living in a travel trailer on their property. They stated that on the day of the murder, they drove Willoughby to Tavares to pick up a motorcycle. Ray testified that on the way, he received a text message that stated that Willoughby killed the victim. Ray showed the message to Kelly, who was driving.
The individual who sent the text message was not identified.
Law enforcement searched the Gillespies’ vehicle and found a .45 caliber casing. Both Ray and Kelly testified that they did not own a .45 caliber gun but that Willoughby had a pistol in their car during the trip to Tavares. Bullets removed from the victim's body and a wall in the victim's house were also .45 caliber. Law enforcement never recovered a gun for comparison purposes. Law enforcement also searched the Gillespies’ property near Willoughby's trailer and found the large safe, which had been opened, as well as 1670 grams of heroin and 323 grams of methamphetamine.
The State called Tim Edwards, who admitted that he was serving a prison sentence and had two prior felony convictions. Edwards identified himself in the surveillance footage from the victim's house on the day of the murder. Initially, Edwards knocked on the front door of the victim's house around 1:30 p.m., but nobody answered. He acknowledged that during part of the footage, he was not visible in the frame and explained that he had walked around the side of the house in an attempt to contact the victim, but could not do so. He left around 1:40 p.m., without speaking to the victim.
Ralph Richardson, a convicted felon who was also serving a sentence at the time of trial, testified that after the victim's death, Willoughby repaid a $700 debt. Richardson testified that Willoughby complained that the victim would no longer sell him drugs on credit. Willoughby admitted to Richardson that the two had argued and that he fired a warning shot and that "shit just went bad" between them during the argument. Willoughby had also told Richardson that he was planning to lay low.
Willoughby testified at trial and admitted to having eight felony convictions and four convictions for crimes of dishonesty. He testified that the victim had been threatened by a white supremacist brotherhood, the Crazy White Boys ("CWBs"), and asked Willoughby to move the safes in his house elsewhere. According to Willoughby, Edwards belongs to the CWBs. Willoughby explained that he moved the safes, returned to the house through the back door, found the victim dead, and left through the back door. He alleged that later, three CWBs pistol-whipped him and demanded the safes. Willoughby specifically denied making any admissions to Richardson.
Edwards admitted on cross-examination that he has a neck tattoo that says "CWB," and explained that "Crazy White Boys" was the name of an album that influenced him in his youth.
Willoughby's first point on appeal is that the trial court erred in admitting evidence of the text message sent to Ray. We agree; however, we find that such error was harmless.
During trial, the State asked Ray whether anything unusual happened when he and Kelly drove Willoughby to Tavares. Ray explained that in the car, he received a text message telling him that Willoughby killed the victim. Willoughby objected on hearsay grounds, and the State argued that the content of the text message was not being offered for the truth of the matter asserted, but instead, to prove Ray and Kelly's subsequent interactions with Willoughby. The trial court overruled Willoughby's objection.
It was unnecessary to establish the subsequent interactions with Willoughby, particularly when the Gillespies could not testify with certainty that Willoughby saw the message. Ray and Kelly testified that they were unsure whether Willoughby saw the message. Kelly stated that Willoughby became tense after Ray showed her the message; however, Kelly acknowledged that she and Ray also became tense after seeing the message and admitted that Willoughby may have merely reacted to their tension.
There is a plethora of case law discouraging such "set the scene" testimony. E.g., Conley v. State, 620 So. 2d 180, 183 (Fla. 1993) ("[T]the inherently prejudicial effect of admitting into evidence an out-of-court statement relating accusatory information to establish the logical sequence of events outweighs the probative value of such evidence. Such practice must be avoided." (citing State v. Baird, 572 So. 2d 904, 908 (Fla. 1990) )). Moreover, given the irrelevance of the Gillespies’ subsequent interactions with Willoughby, it is clear that the State used the text message for its contents. See Keen v. State, 775 So. 2d 263, 274 (Fla. 2000) ("When the only possible relevance of an out-of-court statement is directed to the truth of the matters stated by a declarant, the subject matter is classic hearsay even though the proponent of such evidence seeks to clothe such hearsay under a nonhearsay label." (citations omitted)). In short, the trial court erred in allowing the admission of that evidence.
That said, we find, considering the overwhelming evidence presented in this case, that such error was harmless. Willoughby was filmed pilfering the victim's property, and his shoes were left at the scene, one of which was underneath the victim. The victim's safe and a large quantity of drugs were found near Willoughby's trailer. Berardi testified that Willoughby had a gun in the victim's house on the morning of the murder, and Ray and Kelly testified that Willoughby had a pistol following the murder. Willoughby's testimony that he was holding the safes for the victim's protection from the CWBs is belied by the fact that Willoughby opened the large safe and took the small safe without Berardi's permission.
Additionally, on cross-examination, Willoughby's counsel was able to take some of the impact out of the testimony; he established that both Ray and Kelly considered the text message to be gossip and did not think it was true. Accordingly, the admission of the contents of the text message does not amount to reversible error.
The prosecutor overreached in eliciting Ray's testimony regarding the text message, and nothing in this opinion should be interpreted as an approval of such action.
Willoughby's second point on appeal is that the trial court erred in giving a jury instruction on principals. During closing arguments, the State offered alternative theories of guilt: that Willoughby robbed and murdered the victim and that Willoughby was guilty under a principals theory:
[I]f as you sit there you believe that the fact that the State can't produce the gun or can't give a witness that says beyond—beyond a reasonable doubt he's the one that pulled the trigger, I ask for you to think that the only other logical explanation is that he had something to do with this and assisted and allowed the people in and helped them take the safe.
The State requested the principals jury instruction, arguing that Willoughby's testimony established a factual basis for the instruction. The trial court gave the instruction, which provided that:
If the defendant helped another person or persons commit a crime, then the defendant is a principal and must be treated as if he had done all the things the other person or persons did if the defendant had a conscious intent that the criminal act be done and the defendant did some act or said some word which was intended to and which did incite, cause, encourage, assist or advise the other person or persons to actually commit the crime. To be a principal, the defendant does not have to be present when the crime is committed.
See Fla. Std. Jury Instr. (Crim.) 3.5(a).
We agree that neither Willoughby's testimony nor any other testimony or physical evidence established a basis to convict Willoughby under a principals theory. However, reversal is not required because the error was harmless. Willoughby relies on McGriff v. State, 12 So. 3d 894 (Fla. 1st DCA 2009), and Masaka v. State, 4 So. 3d 1274 (Fla. 2d DCA 2009), for the proposition that giving an instruction on the principals theory in absence of supporting evidence is reversible error if the instruction is capable of misleading the jury. In both of those cases, the principals jury instruction was misleading and the verdict form did not indicate whether the jury convicted the defendant on a principals theory. Here, the jury returned a verdict which included specific findings that Willoughby possessed and discharged a firearm, effectively discounting the State's principals theory. Based on the record, there is no evidence to suggest that the jury was misled by the issuance of the instruction.
The State, in its appellate brief, doubled down on the theory that evidence supported the instruction, despite the fact that the record lacks any substantive support.
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In conclusion, we find that both of the errors raised by Willoughby were harmless. Accordingly, we affirm.
AFFIRMED.
WALLIS and TRAVER, JJ., concur.