Monfiston v. State

924 So. 2d 61, 2006 Fla. App. LEXIS 1886, 2006 WL 349488
CourtDistrict Court of Appeal of Florida
DecidedFebruary 15, 2006
DocketNo. 4D04-836
StatusPublished
Cited by5 cases

This text of 924 So. 2d 61 (Monfiston v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Monfiston v. State, 924 So. 2d 61, 2006 Fla. App. LEXIS 1886, 2006 WL 349488 (Fla. Ct. App. 2006).

Opinions

WARNER, J.

Appellant, Franklin “Frankie” Monfi-ston, challenges his conviction of attempted voluntary manslaughter. He raises three issues: (1) whether the court erred in denying his motion to suppress; (2) whether the court erred in admitting hearsay evidence as an excited utterance; and (3) whether the court failed to conduct a Faretta1 inquiry when appellant requested to represent himself. We affirm as to all issues, remanding only to correct a clerical error in the judgment.

On the day of the incident, Carl Roche, the victim, attempted to sell drugs to Laurent Adjuste, one of Monfiston’s co-defendants, and slapped him during the attempted transaction. Later that evening, a dark colored Ford Expedition slowly passed by Roche who was on the street [63]*63with several other acquaintances. The Expedition first passed them and then came back. Frankie and two other men emerged from the vehicle, all carrying guns. They told everyone else standing around to leave if they did not want to get hurt. Roche knew Frankie, the appellant, because Roche was close to Frankie’s cousin. The three individuals, including Monfi-ston, threatened Roche and referenced the incident earlier in the day where Roche slapped Adjuste. They began beating him and shot him several times. He was shot in his legs and torso. After about four shots were fired, the men returned to the vehicle and sped away.

Officer Patrick O’Brien responded to a call and arrived at a house where several people were standing around Roche, who was lying on the ground bleeding. O’Brien believed the injuries were consistent with gunshot wounds. O’Brien began his investigation, trying to ascertain what had occurred, but no one at the scene would speak with him. Approximately ten minutes after the shooting, the officer was directed to a house where he encountered George Davis, Roche’s cousin. Davis told the officer that a Ford Expedition with dark tint pulled up and three black males came out of the vehicle with guns. A fourth individual stayed in the car. The three men approached the group, and told them “if you don’t want to get hurt, you better take off.” Davis and everyone else, except for Roche, took off. Davis told the officer that the vehicle was heading north when it left the scene.

O’Brien sent a BOLO, and within twenty minutes another officer saw a dark Ford Expedition traveling northbound a few miles from the scene of the shooting. Initially, the officer did not know how many people were in the vehicle. However, he witnessed the lights on the vehicle turn off as it continued northbound. He then saw the vehicle turn into a parking space, and observed a black male driver open the door and look back at the officer’s vehicle. The driver then turned the car lights back on and continued southbound. The officer initiated a stop, and he was then joined by other officers.

Appellant and his three co-defendants testified at the motion to suppress hearing that they were occupants of the vehicle when it was pulled over. The officers searched the vehicle and found three guns in the car. Based upon the testimony, the trial court denied the motion to suppress the evidence found in the vehicle, finding that the officers had reasonable suspicion for the stop.

With respect to the motion to suppress, viewing the evidence in the light most favorable to the state, we conclude that the officers had reasonable suspicion to stop the vehicle. Although the BOLO did not provide significant details, it matched the description of the vehicle stopped, a dark-colored Ford Expedition. Also, relatively soon after the incident, the officer observed the vehicle traveling in the direction indicated by the BOLO. Most importantly, the officer observed suspicious behavior in that the vehicle traveled for a distance without its lights on. After the driver stopped the vehicle and observed the officer behind him, he immediately started out in a different direction. Under these circumstances, we agree that there was reasonable suspicion to stop the vehicle. See State v. Vance, 692 So.2d 270 (Fla. 5th DCA 1997); State v. Reyes, 680 So.2d 1092 (Fla. 3d DCA 1996); Pierre-Louis v. State, 682 So.2d 669 (Fla. 4th DCA 1996); and State v. Setzler, 667 So.2d 343 (Fla. 1st DCA 1995).

During the trial, over appellant’s hearsay objection, O’Brien was allowed to testify as to what Davis told him at the scene. The court permitted the testimony [64]*64based upon the excited utterance exception to the hearsay rule. § 90.803(2), Fla. Stat. The supreme court’s opinion in Stoll v. State, 762 So.2d 870, 873 (Fla.2000), explains the excited utterance exception:

[I]n order for an excited utterance to be admissible, the following requirements must be met: (1) there must have been an event startling enough to cause nervous excitement; (2) the statement must have been made before there was time to contrive or misrepresent; and (3) the statement must have been made while the person was under the stress of excitement caused by the startling event.

Here, it is apparent that the officer was on the scene investigating a crime and trying to find witnesses to it. He found George Davis across the street and began asking him questions about what occurred. Davis did not actually see the shooting. He was in the midst of nervous excitement, but under the circumstances it is hard to conclude that the statement was made before there was time for reflective thought. An investigation of the crime had already commenced; the officer was seeking out information and interrogating witnesses; and Davis was not even at the scene, having fled when the gunmen told everyone to leave. While there was nervous excitement because Davis was concerned that his cousin might die, we cannot conclude that the state proved all three elements of the excited utterance exception.

Nevertheless, even if the evidence was erroneously admitted, it was harmless beyond a reasonable doubt. The victim testified in far greater detail regarding the incident. Roche identified Monfiston, whereas Davis never did, and Roche testified that Monfiston had a gun in his hand. Davis did not actually see the crime occur, whereas Roche did. In essence, Davis’ testimony was cumulative to the much more detailed testimony of the victim. Furthermore, Monfiston himself testified that he was at the scene and got out of the vehicle, but claimed not to know that any guns were around. His testimony alone established his connection to the crimes. No mention of Davis’ observations was made in closing argument. Considering that Monfiston was tried for attempted first degree murder with a firearm and the jury found him guilty only of attempted voluntary manslaughter without possession of a firearm, the jury was clearly and conclusively not influenced by the excited utterance statement that Davis gave.

Finally, Monfiston claims that the court erred in failing to conduct a Faretta inquiry when he told the court that his attorney was not properly representing him. Prior to trial, the court held a Nelson2 hearing regarding Monfiston’s request for his counsel, Barry Butin, to withdraw. At the hearing, Monfiston asserted that Butin was not complying with any of his wishes and was rendering ineffective assistance. After hearing Butin’s response, the court stated that it did not find that “there’s reasonable cause to believe that counsel is rendering ineffective representation.”

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Bluebook (online)
924 So. 2d 61, 2006 Fla. App. LEXIS 1886, 2006 WL 349488, Counsel Stack Legal Research, https://law.counselstack.com/opinion/monfiston-v-state-fladistctapp-2006.