SIXTH DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________
Case No. 6D2023-2303 Lower Tribunal No. CF-22-007565-XX _____________________________
BRIANNE MIDDLEBROOK,
Appellant,
v. STATE OF FLORIDA,
Appellee. _____________________________
Appeal from the Circuit Court for Polk County. Catherine L. Combee, Judge.
March 7, 2025
MIZE, J.
Appellant, Brianne Middlebrook (“Defendant”), appeals her judgment and
sentence for robbery with a firearm and armed burglary of a conveyance. Defendant
argues that the trial court erred when it precluded Defendant from cross-examining
the alleged victim about a report that Defendant made to the police concerning the
alleged victim prior to the date that Defendant allegedly committed the crimes at
issue in this case. Defendant contends that this cross-examination was relevant to
show the alleged victim’s bias against Defendant and his motive to lie in his testimony. We agree the trial court erred by precluding this cross-examination and
we do not find the error to be harmless. Accordingly, we reverse Defendant’s
judgment and sentence and remand this case for a new trial.
Background and Procedural History
The State filed a two-count Information charging Defendant with robbery
with a firearm and armed burglary of a conveyance. The Information alleged that
Defendant used a firearm to rob Ricky Marks (“Marks”) of his cell phone and that
Defendant burglarized Marks’s truck while armed with a handgun. At trial,
Defendant’s theory of defense was that Marks fabricated the crimes in retaliation for
Defendant reporting Marks to the police for possession of child pornography.
Marks was the State’s principal trial witness to establish the facts of the
alleged crimes. He testified that he and Defendant were roommates from February
2022 through September 2022. They were also close friends and were sexually
intimate multiple times. Defendant’s grown son, Braden, also lived with Defendant
and Marks. During the time that Marks and Defendant lived together, Marks owned
a motorcycle and a pickup truck. Six days before the date of the alleged criminal
incident in this case, Defendant took Marks’s motorcycle out of the storage unit
where he kept it. Defendant told Marks by text message that she took the motorcycle
to prevent Braden from gaining access to it. Marks did not give Defendant
permission to take the motorcycle.
2 Marks texted Defendant asking for his motorcycle to be returned. Defendant
and Marks agreed to meet on a Saturday at a Bob Evans restaurant in New Port
Richey, Florida for Defendant to return the motorcycle. Marks agreed that
Defendant could take his pickup truck at the same time. When it ended up raining
that Saturday, Defendant and Marks agreed to delay the exchange until Sunday
morning and to meet at the same Bob Evans. While Marks went to the Bob Evans
at the agreed upon time, Defendant did not show up. Marks texted Defendant, and
Defendant told him that she was caught up in Lakeland and asked if they could meet
somewhere closer to her later in the day. Marks agreed, and Defendant told Marks
that she would meet him in the parking garage of the Hard Rock Café in Tampa at
noon. While Marks arrived at the Hard Rock Café parking garage as agreed,
Defendant again did not show up. Marks texted Defendant again, and Defendant
asked him to come to Lakeland. Marks drove to Lakeland, and then he both called
and texted Defendant to try to arrange a location for them to meet. Eventually,
Defendant told Marks to pick a sandwich shop, which he did, and he told Defendant
that he would meet her at the sandwich shop momentarily.
The sandwich shop was in a strip mall that had a single, joint parking lot for
all of the businesses in the strip mall. When Marks arrived, he parked in a parking
spot by backing into the spot. Marks then texted Defendant, “I’m here.” After an
exchange of text messages between the two, Defendant eventually arrived. Despite
3 there being multiple parking spaces available nearby, Defendant pulled the
motorcycle in front of Marks’s truck, thereby blocking him in his parking spot such
that he could not pull out of the spot without hitting the motorcycle. After parking
in front of Marks’s truck, Defendant did not get off the motorcycle. Defendant
remained on the motorcycle and Marks walked over to her and they made small talk
for five to ten minutes.
While Defendant and Marks were talking, a sedan pulled into the parking lot
at a high rate of speed. Inside the car were Braden and two other men that Marks
did not recognize. The sedan stopped and all three men got out of the car and
approached Marks. Braden walked up to Marks and said, “This is not how it’s going
to go down. You’re not going to get your motorcycle. You’re not getting a truck.
We’re going to go for a ride.” Marks responded, “No, we are not.” The two of them
then “got into a scuffle.” The other two men left and walked back to the sedan in
which they had arrived.
The scuffle lasted a few minutes. After the scuffle, Braden started walking
back to the car in which he had arrived. Marks took the opportunity to attempt to
get back into his truck and leave the scene. Marks ran to his truck, got in the driver’s
seat and attempted to lock the door. Braden then jumped into the passenger’s seat,
pulled out a gun and put it to the right side of Marks’s head and said, “We’re going
to do this. We’re going to go for a ride now.” Marks responded by swinging his
4 motorcycle helmet towards Braden’s head. While this was happening, Marks heard
Defendant say, “It wasn’t supposed to go down like this.” Marks jumped out of the
truck and ran to a nearby road into oncoming traffic to try to get someone’s attention.
After Marks exited the truck, Braden also exited the truck and jumped on the back
of the motorcycle. Defendant and Braden then drove away on the motorcycle.
After seeing Defendant and Braden drive away, Marks returned to his truck
and noticed that Braden had taken his cell phone from the truck when Braden exited
it. Since Marks did not have his phone, he ran to a nearby convenience store and
called 911.
Marks’s testimony was the State’s primary evidence to establish the foregoing
facts. During defense counsel’s cross-examination of Marks, defense counsel
proffered testimony outside of the presence of the jury in order to obtain a ruling
from the trial judge as to whether defense counsel could elicit the testimony in front
of the jury. The proffered testimony, some from Marks and some from Defendant,
established that approximately a week before the alleged armed robbery and armed
burglary took place, Defendant had reported to the police that Marks was in
possession of child pornography.
According to Defendant, while she and Marks were living together, Defendant
became aware that Marks possessed child pornography on his computer. Defendant
was initially afraid to take any action, but she did advise Braden about it because
5 Braden had a young daughter, who was three or four years old at the time. One day,
Defendant went to the store and came back to the house to find that Braden had
fallen asleep, and Marks had locked himself in his bedroom with the young child.
When Marks would not open the door, Defendant called the police. By the time the
police arrived, Braden had gotten into the bedroom and there was a fight between
Braden and Marks that resulted in Marks visiting a hospital. Despite this incident,
Defendant continued living at the house because she had nowhere else to go.
According to Marks, the police took his computer and conducted an
investigation. Marks invoked his privilege against self-incrimination with regard to
his computer and what was stored on it. However, he testified that the police had
completed their investigation of him by the time of Defendant’s trial below and that
he had not been charged with any crime.
After the foregoing testimony was proffered, defense counsel informed the
trial court that he wanted to question Marks regarding this incident in front of the
jury “to show that he has a motive to try to lie about her in this case.” Defense
counsel stated further:
I don’t plan on getting into the child pornography, but I would ask if I could ask if he has some motive to be angry with my client. And if he says no, then that would allow me to go into the fact that she reported him to the police.
The State argued, in response, that the fact that Defendant reported to the
police that Marks possessed child pornography was irrelevant to whether Defendant 6 committed a robbery and burglary at the date and location alleged by the State. The
State also argued that the probative value of this testimony was “heavily outweighed
by the prejudicial effect of . . . unsupported allegations of the types of crimes that
tend to cause emotional reactions, possession of child pornography, when the
apparent testimony before the Court is none of that is pending, and as far as I know,
no evidence will be adduced regarding that.”
After hearing the arguments from defense counsel and the State, the trial court
ruled that defense counsel would not be permitted to present this testimony to the
jury. The trial court found that the testimony would be more prejudicial than
probative. As part of its reasoning, the trial court also stated that Marks had already
testified to the jury that he was upset with Defendant because she failed to show up
at multiple agreed upon times and locations for Marks to retrieve his motorcycle.
In his closing argument, defense counsel argued to the jury that Marks lied
during his testimony and that the entire robbery and burglary that Marks described
never happened. The jury apparently believed Marks as they returned a verdict of
guilty as charged. This appeal followed.
Analysis
I. The Sixth Amendment Right to Cross-Examine a State’s Witness for Bias
“The Confrontation Clause of the Sixth Amendment guarantees the right of
an accused in a criminal prosecution ‘to be confronted with the witnesses against
7 him.’” Delaware v. Van Arsdall, 475 U.S. 673, 678 (1986) (quoting Amend. VI, U.S.
Const.). “This right to confrontation is applicable to the states though the Fourteenth
Amendment.” Conner v. State, 748 So. 2d 950, 954 (Fla. 1999) (citing Idaho v.
Wright, 497 U.S. 805, 813 (1990)).1
“The right of confrontation . . . means more than being allowed to confront
the witness physically.” Van Arsdall, 475 U.S. at 678 (quoting Davis v. Alaska, 415
U.S. 308, 315 (1974) (internal quotations omitted)). “Indeed, the main and essential
purpose of confrontation is to secure for the opponent the opportunity of cross-
examination.” Van Arsdall, 475 U.S. at 678 (quoting Davis, 415 U.S. at 316 (internal
quotations omitted)). The United States Supreme Court has “recognized that the
exposure of a witness’ motivation in testifying is a proper and important function of
the constitutionally protected right of cross-examination.”2 Van Arsdall, 475 U.S. at
678-79 (quoting Davis, 415 U.S. at 316-17); see also Gibson v. State, 661 So. 2d
288, 291 (Fla. 1995) (“We further recognize that a defendant’s right to cross-
examine witnesses is secured by the Sixth Amendment to the United States
1 In Florida, a criminal defendant’s right to cross-examine witnesses is also secured by Article 1, Section 16(a) of the Florida Constitution. However, Defendant did not raise in her Initial Brief any argument under the Florida Constitution. 2 A number of the judicial opinions quoted in this opinion use “witness’” as the singular possessive form of “witness”. This opinion uses “witness’s” as the singular possessive form of “witness”. The Chicago Manual of Style ¶¶ 7.16, 7.22 (18th ed. 2024). The quotations from other judicial opinions have not been corrected but, when not quoting from another opinion, this opinion uses “witness’s” as the singular possessive form of “witness”. 8 Constitution . . . . Inherent within this right is a defendant’s right to expose a
witness’s motivation in testifying.”). Thus, “[t]he sixth amendment right to
confrontation of witnesses requires that a defendant in a state criminal case be
allowed to impeach the credibility of a prosecution witness by cross-examination to
show bias.” Hannah v. State, 432 So. 2d 631, 632 (Fla. 3d DCA 1983); see also
Rivera v. State, 274 So. 3d 537, 540 (Fla. 5th DCA 2019) (“The Sixth Amendment
guarantees the right of an accused to attack a witness’ credibility by means of cross-
examination directed toward revealing possible biases or ulterior motives of the
witness as they may relate to the case at hand.” (quoting Henry v. State, 123 So. 3d
1167, 1169-70 (Fla. 4th DCA 2013) (internal quotations omitted))); Tomengo v.
State, 864 So. 2d 525, 530 (Fla. 5th DCA 2004) (“A defendant, as a matter of right,
may cross-examine a State witness with respect to his motive, interest, or animus,
which is connected to the cause or to the parties to the cause.”). “The vital
importance of full and searching cross-examination is even clearer when . . . the
prosecution’s case stands or falls on the jury’s assessment of the credibility of the
key witness.” Rivera, 274 So. 3d at 540-41 (quoting Henry, 123 So. 3d at 1170
(internal alterations omitted)); see also Wooten v. State, 464 So. 2d 640, 641 (Fla.
3d DCA 1985); Hannah, 432 So. 2d at 631 (“All witnesses are subject to cross-
examination for the purpose of discrediting them by showing bias, prejudice or
interest, and this is particularly so where a key witness is being cross-examined.”);
9 Tomengo, 864 So. 2d at 530 (“The right to a full cross-examination is especially
necessary when the witness being cross-examined is the key witness on whose
credibility the State’s case relies.”). “Under such circumstances, obviously, a
defendant has a strong interest in discrediting a crucial state witness by showing bias,
an interest in the outcome, or a possible ulterior motive for his in-court testimony.”
Rivera, 274 So. 3d at 541 (quoting Henry, 123 So. 3d at 1170 (internal quotations,
alterations omitted)).
Because the Confrontation Clause protects the right of a criminal defendant
to cross-examine a State witness to show that the witness is biased, “a criminal
defendant states a violation of the Confrontation Clause by showing that he was
prohibited from engaging in otherwise appropriate cross-examination designed to
show a prototypical form of bias on the part of the witness, and thereby to expose to
the jury the facts from which jurors could appropriately draw inferences relating to
the reliability of the witness.” Van Arsdall, 475 U.S. at 680 (quoting Davis, 415 U.S.
at 318 (internal quotations, alterations omitted)). While a trial court generally has
“broad discretion to impose reasonable limits on cross-examination when it is
concerned about, among other things, harassment, prejudice, confusion of the issues,
the witness safety, or interrogation that is repetitive or only marginally relevant, the
court’s discretion is constrained by a criminal defendant’s Sixth Amendment rights.”
Rivera, 274 So. 3d at 540 (internal quotations, alterations and citations omitted).
10 “The trial court does not have the discretion to exclude questions which touch upon
interest, motive, or animus.” Tomengo, 864 So. 2d at 530-31; see also Purcell v.
State, 735 So. 2d 579, 580-81 (Fla. 4th DCA 1999) (“Questions touching interest,
motives, animus, or the status of witnesses to the suit, or parties to it are not collateral
or immaterial. As to such matters inquiry may be had, and it is not within the
discretion of the court to exclude it.” (quoting Alford v. State, 36 So. 436, 438 (Fla.
1904)).
The Florida Evidence Code implements the Sixth Amendment right of a
criminal defendant to cross-examine a State witness for bias. Indeed, it sweeps more
broadly and protects the rights of parties in both criminal and civil proceedings to
examine or cross-examine any witness to show that the witness is biased. See
Gibson, 661 So. 2d at 291 (“Our evidence code liberally permits the introduction of
evidence to show the bias or motive of a witness.”). Specifically, Section 90.608(2),
Florida Statutes (2022), provides that “[a]ny party, including the party calling the
witness, may attack the credibility of a witness by . . . [s]howing that the witness is
biased.” Section 90.612(2), Florida Statutes (2022), likewise provides that “[c]ross-
examination of a witness is limited to the subject matter of the direct examination
and matters affecting the credibility of the witness.” (emphasis added).
11 Thus, under the Florida Evidence Code, the Florida Constitution,3 and the
United States Constitution, evidence of a State witness’s bias against a criminal
defendant is always relevant and a proper subject of cross-examination. McDuffie v.
State, 341 So. 2d 840, 841 (Fla. 2d DCA 1977) (“Bias or prejudice of a witness has
an important bearing on his credibility and evidence showing such bias is relevant. .
. . It is proper to elicit facts tending to show bias or prejudice of a witness in cross-
examination of that witness.”); Peret v. State, 301 So. 3d 437, 439 (Fla. 2d DCA
2020) (“[B]ias or prejudice of a witness has an important bearing on his credibility,
and evidence tending to show such bias is relevant.” (quoting Lloyd v. State, 909 So.
2d 580, 581 (Fla. 2d DCA 2005)); Webb v. State, 336 So. 2d 416, 418 (Fla. 2d DCA
1976) (“Bias or prejudice of a witness has an important bearing on his credibility,
and evidence tending to show such bias is relevant.”).
Moreover, it is not just the fact of bias itself or the general idea of bias that is
relevant and a proper subject of cross-examination. Rather, a criminal defendant is
entitled to cross-examine a State witness regarding the specific facts which might
cause the witness to be biased against the defendant. Davis, 415 U.S. at 318 (“While
counsel was permitted to ask [the State witness] whether he was biased, counsel was
unable to make a record from which to argue why [the State witness] might have
been biased or otherwise lacked that degree of impartiality expected of a witness at
3 See note 1, supra. 12 trial. . . . [D]efense counsel should have been permitted to expose to the jury the facts
from which jurors, as the sole triers of fact and credibility, could appropriately draw
inferences relating to the reliability of the witness.”). This includes matters that are
not otherwise related to the crime charged and that were not the subject of the State’s
direct examination of the witness. McDuffie, 341 So. 2d at 841 (“It is a fundamental
principle that matters tending to show bias or prejudice in a criminal prosecution
may be inquired about even when they were not mentioned in direct examination.”);
Baucham v. State, 881 So. 2d 95, 96 (Fla. 1st DCA 2004) (“[A] witness may be
impeached by testimony tending to prove bias, even if the testimony concerns facts
not otherwise germane.”); Mitchell v. State, 862 So. 2d 908, 912-13 (Fla. 4th DCA
2003) (holding that an issue that was not relevant to the crime with which the
defendant was charged and which was not a subject of the State witness’s direct
examination was nonetheless relevant and a proper subject of cross-examination to
show the witness’s bias against the defendant and a motive to lie); Tomengo, 864
So. 2d at 530 (holding that matters not relevant to the crime charged or the State
witness’s direct testimony were nonetheless a proper subject of cross-examination
of the witness because the matters showed hostility between the defendant and the
witness). Florida courts have recognized that “[a] defendant should be afforded wide
latitude in demonstrating bias on the part of a witness.” Peret, 301 So. 3d at 439
(quoting Lloyd, 909 So. 2d at 581 (internal alteration omitted)); Mitchell, 862 So. 2d
13 at 912 (“[B]ecause liberty is at risk in a criminal case, a defendant is afforded wide
latitude to develop the motive behind a witness’ testimony. Courts should even
allow inquiries that might at first blush appear to be lacking any basis at all thus far
in the trial, so long as counsel states a basis tending ultimately to show such bias.”
(internal quotations, citations and alterations omitted)); Purcell, 735 So. 2d at 581
(“Considerable latitude should be accorded a defendant in attempting to establish
bias, including allowing inquiries that might at first blush appear to be lacking any
basis at all thus far in the trial, so long as counsel states a basis tending ultimately to
show such bias.”); Rivera, 274 So. 3d at 540 (“For purposes of discrediting a witness,
a wide range of cross-examination is permitted as this is the traditional and
constitutionally guaranteed method of exposing possible biases, prejudices and
ulterior motives of a witness as they may relate to the issue or personalities.”
(quoting Henry, 123 So. 3d at 1170 (quoting Strickland v. State, 498 So. 2d 1350,
1352 (Fla. 1st DCA 1986)))). “Any evidence which tends to establish that a witness
is appearing for the State for any reason other than merely to tell the truth should not
be kept from the jury.” Holt v. State, 378 So. 2d 106, 108 (Fla. 5th DCA 1980) (citing
Cowheard v. State, 365 So. 2d 191, 193 (Fla. 3d DCA 1978)); see also Rivera, 274
So. 3d at 541.
14 II. The Trial Court Erred
In this case, the fact that Defendant reported to the police that Marks possessed
child pornography just a week before Defendant is alleged to have committed the
charged crimes against Marks, which resulted in a police investigation of Marks,
was certainly a possible reason for Marks to be biased against Defendant. See
Baucham, 881 So. 2d at 96-97 (holding that the trial court erred by prohibiting the
defendant from cross-examining two police officers regarding the fact that the
defendant had previously contacted the police chief to complain about the officers);
Tomengo, 864 So. 2d at 530 (holding that the trial court erred by prohibiting the
defendant from cross-examining the victim regarding previous arguments between
the victim and the defendant where the defendant argued that these arguments were
relevant to show animosity between the defendant and victim that caused the victim
to pursue false criminal charges against the defendant as a way of “getting back” at
the defendant). Moreover, since Marks was the State’s key witness and his
testimony was the primary evidence on which the State relied to prove its case,
Defendant’s right and need to cross-examine Marks for possible bias was especially
clear and important. See Rivera, 274 So. 3d at 540-41; Hannah, 432 So. 2d at 631;
Tomengo, 864 So. 2d at 530. Accordingly, the trial court erred by prohibiting
Defendant from cross-examining Marks regarding this possible reason for Marks to
be biased against Defendant. The trial court’s conclusion that this testimony would
15 have been more prejudicial than probative simply cannot be squared with
Defendant’s rights under the Sixth Amendment.
Lastly, the trial court was wrong to reason that allowing Defendant to cross-
examine Marks for bias based on the child pornography report was not necessary
because Marks was able to testify to the jury that he was upset with Defendant due
to her failing to show up at multiple agreed upon times for Marks to retrieve his
motorcycle. A criminal defendant is entitled to cross-examine a State witness
regarding the specific facts which might cause the witness to be biased against the
defendant. See Davis, 415 U.S. at 318. Thus, an examination of the witness
regarding the facts surrounding one possible ground for bias is no substitute for the
right to cross-examine the witness regarding another, different ground for bias. See
McDuffie, 341 So. 2d at 840 (holding that the trial court erred in prohibiting a
defendant from cross-examining the victim regarding whether the victim had
previously “threatened to ‘come up with something’ to get the defendant put in jail,”
even though the trial court did allow defendant to cross-examine the victim regarding
whether the defendant owed the victim money). This is especially true where the
ground for bias that Defendant was prohibited from presenting to the jury was much
more serious and a much stronger ground for bias than the ground that was presented
to the jury. Reporting someone to the police for allegedly possessing child
pornography, resulting in the police seizing the person’s property and investigating
16 the person for possession of child pornography, is simply a much more serious
matter than failing to meet to exchange a vehicle. For this additional reason, the trial
court erred.
III. Harmless Error Analysis
The improper denial of a defendant’s opportunity to cross-examine a State
witness for bias is subject to harmless error analysis. Van Arsdall, 475 U.S. at 684.
The Florida Supreme Court “has explained that the harmless error test places the
burden on the State, as the beneficiary of the error, to prove beyond a reasonable
doubt that the error complained of did not contribute to the verdict or, alternatively
stated, that there is no reasonable possibility that the error contributed to the
conviction.” Penalver v. State, 926 So. 2d 1118, 1137 (Fla. 2006) (quoting State v.
DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986) (internal quotations omitted)).
In this case, while the State argued in its Answer Brief that the trial court did
not err in prohibiting Defendant from cross-examining Marks regarding the child
pornography report, the State made no attempt to establish that the trial court’s error,
if one occurred, did not contribute to the verdict. Because the State made no attempt
to establish that the trial court’s error in prohibiting Defendant from cross-examining
Marks regarding the child pornography report did not contribute to the verdict in this
case, the State has not met its burden under the harmless error test to prove beyond
a reasonable doubt that the error complained of did not contribute to the verdict.
17 Conclusion
The trial court violated Defendant’s right under the Sixth Amendment to
cross-examine a State witness for bias when it precluded Defendant from cross-
examining Marks about the fact that Defendant previously reported Marks to the
police for possession of child pornography. This cross-examination was relevant to
show Marks’s possible bias against Defendant and his motive to lie. Because we do
not find this error to be harmless, we reverse Defendant’s judgment and sentence
and remand this case for a new trial.
REVERSED and REMANDED.
WHITE and GANNAM, JJ., concur.
Blair Allen, Public Defender, and Rachel Paige Roebuck, Assistant Public Defender, Bartow, for Appellant.
James Uthmeier, Attorney General, Tallahassee, and James Hellickson and Jonathan S. Tannen, Assistant Attorneys General, Tampa, for Appellee.
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF TIMELY FILED