Patrick Albert Evans v. State of Florida Corrected Opinion

• Court: Supreme Court of Florida
• Decided: December 10, 2015
• Docket: SC12-2160
• Status: Published

Opinion

Supreme Court of Florida ____________

No. SC12-2160 ____________

PATRICK ALBERT EVANS, Appellant,

vs.

STATE OF FLORIDA, Appellee.

[November 12, 2015] CORRECTED OPINION

PER CURIAM.

Patrick Albert Evans appeals his two convictions for first-degree murder and

two sentences of death.1 Because of errors that occurred during the trial, we vacate

the convictions and sentences of death and remand for a new trial.

Among other errors, the lead detective usurped the role of the jury by being

permitted to opine that a voice heard on a 911 call-back recording belonged to the

defendant, even though the detective had no prior knowledge of the defendant and

1. We have jurisdiction of Evans’ appeal under article V, section 3(b)(1), of the Florida Constitution. no expertise in voice identification. In addition, the State insinuated

unsubstantiated and incriminating facts when it cross-examined the defendant, by

implying through its questions that the defendant was obsessed with his estranged

wife and stalking her boyfriend—the victims. Yet, the prosecutor recognized that

he could not present any evidence to support such statements because they were

based on speculation and hearsay. The prejudicial effect of these errors was then

amplified by patently improper comments in the closing argument, during which

the prosecutor repeatedly disparaged the defendant’s theory of the case and defense

attorneys in general; relied on facts and statistics not in evidence to imply that the

victims must have been murdered by a family member; and criticized the

defendant’s decision to pursue his constitutional right to a jury.

The cumulative effect of these preserved errors was not harmless beyond a

reasonable doubt, and the existence of additional unpreserved errors buttresses our

conclusion that Evans is entitled to a new trial. Accordingly, for the reasons more

fully explained in this opinion, we vacate Evans’ convictions for first-degree

murder, vacate the sentences of death, and remand for a new trial.

FACTS

On January 22, 2009, Evans was indicted for the first-degree murders of

Elizabeth Evans (“Beth”), his estranged wife, and Gerald Taylor, Beth’s new

-2- boyfriend. The two were fatally shot in the master bedroom of Beth’s

condominium on December 20, 2008.

The record reflects that Evans and Beth had a tumultuous marriage. While

married to Beth, Evans had an affair with his ex-wife, Andrea, the mother of his

minor son. Evans ended the affair in April 2008, but then filed a petition to

divorce Beth, stating that the marriage was irretrievably broken. Shortly thereafter,

Evans changed the locks on the marital home and, without Beth’s knowledge,

moved the belongings of Beth and her daughter from a prior marriage, Molly, to a

condominium that Evans and Beth owned. However, approximately one week

later, again without Beth’s or Molly’s knowledge, Evans returned their belongings

to the marital home. Soon after, Beth independently and individually leased a

condominium, but was unable to collect her furniture from the marital home so she

purchased new furniture. In addition to bedrooms for her and Molly, Beth set up a

third bedroom at the condominium for her stepson because, despite the pending

dissolution of marriage, she wanted to maintain a relationship with him. Her

stepson occasionally visited Beth at the condominium, and Evans would drop him

off and pick him up.

In July 2008, Evans attempted to rekindle his relationship with Beth and

voluntarily dismissed the petition for dissolution of marriage that he had filed only

a few months prior. According to Molly, Evans began to wear his wedding ring.

-3- He also made an effort to visit the condominium, and when the door was unlocked,

Evans would simply enter without knocking or announcing himself. Molly stated

that Beth did not appreciate Evans’ efforts to rekindle the relationship, and she

became upset when he entered her condominium unannounced. Beth never gave

Evans a key to her condominium. However, during the fall of 2008, Beth

discovered that the keys to her condominium were missing. She eventually

retrieved the keys from Evans’ mother, Marcy. In November 2008, Beth filed a

petition for dissolution of marriage, which Evans testified did not upset him.

Evans testified that he was aware Beth had a date on December 20, 2008—

the day of the murders—but claimed he did not know her date’s name. During the

late afternoon of December 20, 2008, Molly’s boyfriend saw Beth with a man,

whom Beth introduced as Jerry, hitting golf balls at the course where Molly’s

boyfriend worked. Beth and her companion left the course around 5:30 p.m. At

approximately 6:15 p.m., Beth’s next-door neighbor, Pamela Ashby, who had

dinner plans, became nervous because the person who was to pick up a child in

Ashby’s care was running late. Ashby intended to call Beth to see if the child

could stand in Beth’s driveway until the person arrived, but she accidentally dialed

Evans’ number. Evans informed Ashby that Beth was not available because she

was on a date.

-4- At approximately 6:45 p.m., Scott Graham, who also lived in the same

condominium complex as Beth, was walking his dog. A man approached Graham

and asked if he had seen two Yorkshire Terriers, to which Graham replied that he

had not. The man departed in the direction of Beth’s condominium. The only

person in this fifteen-unit complex that Graham knew to have Yorkshire Terriers

was Beth Evans. He testified that, while the man who approached him that night

definitely resembled Evans, Graham could not definitively identify him.

At 7:09 p.m., the 911 dispatch service received a hang-up call from the

landline at Beth’s condominium. When a public safety telecommunicator called

the number, the following was recorded:

Male Voice #1: Sit on the bed.

Female Voice: I’m going to put a robe on.

Male Voice #1: No, you’re not put—[inaudible]

Dispatcher: Hello?

Male Voice #1: Sit on the bed. Female Voice: No.

Female Voice: Rick—[simultaneously with]

Female Voice: No! Rick![2]

2. Evans testified during the trial that his nickname is Rick.

-5- Male Voice #2: Put the gun down and I’ll sit down, all right?

Male Voice #1: Sit on the bed. Sit on the bed, Jerry.

Male Voice #2: I’ll sit down once you put the gun down. Hey, hey. [inaudible] . . . gun down.

Male Voice #1: Jerry, sit on the bed. Female Voice: Help!

Male Voice #2: Please.

Female Voice: Help! [more distance than the initial call for help] Male Voice #2: Put the gun—[gunshot] Female Voice: Are you out of your fuck—[gunshot]

Dispatcher: Hello? No further voices were heard until law enforcement arrived.

The two deputies who responded to the 911 hang-up call discovered that the

door to Beth’s condominium was unlocked, and there was no sign of forced entry.

Once they entered the home, they saw one Yorkshire Terrier. After determining

that no one was present on the lower level of the home, the deputies proceeded

upstairs. The deputies found Gerald Taylor on the floor of the master bedroom,

nude, with a small wound in his neck. Taylor was alive but nonresponsive and

subsequently died. The deputies discovered the body of Beth Evans, also nude and

with a wound in her neck, on the screened-in patio that was attached to the master

bedroom. Sitting next to her body, shaking, was a second Yorkshire Terrier. Two

.40 caliber shell casings were discovered at the scene—one in the vicinity of where

-6- each victim lay. On a nightstand in the master bedroom was an Uncle Mike’s

Sidekick holster.

Upon learning that Evans was Beth’s next of kin (the dissolution of marriage

was not yet final), the lead detective, Edward Judy, proceeded to Evans’ home at

approximately 11:15 p.m. At that point, Detective Judy had not heard the 911 call-

back recording. Although Evans’ truck was present, he did not answer the door

when Detective Judy attempted to make contact. Detective Judy placed his card in

the door of Evans’ home and departed. Detective Judy subsequently heard the

recording during which Beth referred to the shooter as “Rick.”

Evans was taken into custody by a tactical team that had been conducting

surveillance on his residence. Thereafter, a warrant was issued to search the home

for a handgun and ammunition. Inside a safe at the residence were three boxes of

Speer Gold Dot .40 caliber hollow-point ammunition, the same brand of

ammunition as the casings found at the scene of the murders. Two of the boxes

had bullets removed. Also inside the safe was a factory box for a .40 caliber Glock

firearm, but no gun was found. The police were able to match the serial number on

the box with the serial number of the gun that Evans purchased on November 22,

2005, from a sporting goods store. The holster recovered from the crime scene

appeared to match a holster Evans purchased at the same time.

-7- Inside the Glock factory box was an envelope that contained two shell

casings from test firings that had been conducted at the factory. The serial number

on the envelope matched the serial number on the box and the receipt from the

sporting goods store. A firearms analyst with the Florida Department of Law

Enforcement testified that the shell casings found at the crime scene matched the

test-fired shell casings from the Glock factory.

During trial, Beth’s daughter Molly, Ashby (Beth’s neighbor), and Detective

Judy all identified Evans as the male voice on the 911 call-back recording saying,

“Sit on the bed.”3 The medical examiner testified that Beth Evans and Gerald

Taylor died from gunshot wounds to the neck, and the cause of death was

homicide. Stippling was present around Taylor’s entrance wound, which indicated

that the muzzle was 2 to 24 inches away at the time the weapon was discharged.

No evidence of stippling was present on Beth’s body. The handgun that was used

to commit the murders was never found.

During the defense case-in-chief, Evans and his brother, Rodney, testified

that from approximately 4:15 p.m. until 8:20 p.m. on the day of the murders, they

were together fishing, cooking, shooting pool, and packing for a ski trip that Evans

3. Detective Judy testified that his familiarity with Evans’ voice arose from a review of recordings of phone conversations between Evans and family members while Evans was held at the Pinellas County Jail.

-8- had planned. Evans denied that it was his voice on the recording. He spoke the

following phrases in front of the jury after segments from the recording were

played: “Sit on the bed,” “Sit on the bed, Jerry,” and “Jerry, sit on the bed.”

In addition to presenting an alibi defense, the defense implied that Evans’

ex-wife, Andrea, could have been responsible for the murders. Evans testified that

during his marriage to Beth, there was constant tension between Andrea and Beth.

He described the close relationship between Beth and his son and noted that the

child called Beth “mom” and Andrea “mommy.” Evans also noted that during a

burglary of his home in February 2008, a bracelet that his son had given to Beth,

which said “Mom,” had been taken. Evans testified that Andrea knew the code to

the safe in which the firearms were kept and that Andrea had been visiting Beth’s

condominium.4 Evans noted that Andrea was in dire financial straits, and shortly

after the murders, she filed a Motion to Enforce Child Support. He further

explained that in January 2009, he was scheduled to get a large payout from his

former employer, and Andrea subsequently sought an enforcement of equitable

distribution. During guilt-phase closing arguments, defense counsel asserted that

4. Molly testified that despite the initial problems that Evans and Beth encountered with Andrea, and despite the affair between Andrea and Evans, Andrea and Beth eventually became friends. According to Molly, Andrea would visit Beth and bring the child along. Molly also testified that Andrea knew Beth and Taylor were going to be together on the weekend of the murders.

-9- Andrea was the only person who stood to gain financially from the murder of Beth.

The jury found Evans guilty of the first-degree murders of Elizabeth Evans and

Gerald Taylor.

During the penalty phase, the State did not present additional evidence.

Evans presented his mother, Marcy, and his two brothers, Rodney and Glenn, who

testified that Evans is a dedicated family man and a good son and brother. Rodney

described how Evans helped him through addiction and mental health issues. He

testified about Evans’ charitable work with Smile Corporation and how Evans

provided scholarships to high school students and donated buses to organizations

and churches.5 Rodney also described Evans’ love for his son. Marcy described

Evans as a hard worker who accepted and met his responsibilities. She also

recounted how he provided her with emotional support when her brother died and

her house burned down.

The jury recommended sentences of death by a vote of nine to three for the

murder of Beth and by a vote of eight to four for the murder of Taylor. During the

Spencer6 hearing, no additional evidence was offered by Evans. Defense counsel

5. During penalty-phase closing statements, defense counsel also referenced Evans’ charitable work with the Boys & Girls Club. Molly mentioned this work during her guilt-phase testimony. 6. Spencer v. State, 615 So. 2d 688 (Fla. 1993).

- 10 - informed the trial court that “there was a doctor who was hired in regards to this

matter who has done an evaluation in regards to Mr. Evans. However, there is

nothing . . . that would indicate that there was any evidence of mental mitigation

for which the Court could consider in this matter.”

The trial court sentenced Evans to death for the murders of Beth and Taylor.

The trial court found that two aggravating circumstances had been established: (1)

Evans had been convicted of a prior capital felony (the contemporaneous murder

of the other victim) (great weight); and (2) the murders occurred while Evans was

engaged in the commission of or an attempt to commit a burglary (great weight).

The trial court concluded that Evans had established the statutory mitigating

circumstance that he had no significant criminal history and gave this factor “some

weight.” However, the trial court rejected the statutory mitigating factor of Evans’

age at the time of the crimes (41 years old). The trial court found six nonstatutory

mitigating circumstances: (1) Evans’ work ethic and history (moderate weight); (2)

Evans’ relationship with his children—his son with Andrea and a daughter from

his first marriage (little weight); (3) Evans shares love and support with his family

(little weight); (4) Evans has behaved appropriately during courtroom proceedings

(minimal weight); (5) the length of his mandatory sentence (little weight); and (6)

Evans’ charitable and humanitarian deeds (little weight). The trial court concluded

- 11 - that the aggravating factors outweighed the mitigating factors. This direct appeal

follows.

ANALYSIS

On direct appeal, Evans raises eight issues: (1) whether the trial court erred

when it denied Evans’ motion for judgment of acquittal on the charge of

premeditated first-degree murder; (2) whether the trial court erred when it

instructed the jury on burglary as the underlying felony as a basis for first-degree

felony murder; (3) whether the trial court erred when it allowed Detective Judy to

offer an opinion that the voice on the 911 call-back recording was that of Evans;

(4) whether the trial court erred when it denied Evans’ motion for a mistrial and

declined to give a curative instruction after the State insinuated that Evans hired a

private investigator to investigate Gerald Taylor; (5) whether during guilt-phase

closing arguments, the prosecutor denigrated Evans and his defense, improperly

commented on Evans’ right to a jury trial, and misstated the law; (6) whether

Evans is entitled to a new trial based on cumulative error during the guilt phase; (7)

whether the trial court improperly minimized the mitigation evidence; and (8)

whether the death sentences are disproportionate.

For the reasons that follow, we reject Evans’ claims that the trial court erred

in denying a judgment of acquittal and in instructing the jury on burglary as the

underlying felony. However, we conclude that numerous errors occurred during

- 12 - the trial, including that the trial court erred in permitting a law enforcement officer

to testify to voice identification simply because he listened to jailhouse recordings

of Evans on multiple occasions (Issue 3); the State insinuated through unsupported

questioning that Evans hired a private investigator to investigate Taylor (Issue 4);

and the prosecutor gave improper closing arguments (Issue 5). We hold that, based

on these cumulative errors, Evans is entitled to a new trial. We do not address the

penalty-phase issues because we vacate the convictions and sentences of death.

I. Voice Identification by Law Enforcement Officer

In the first issue we address, Evans claims that the trial court erred when it

permitted Detective Judy to offer his opinion that the voice on the 911 call-back

recording belonged to Evans. During trial, the prosecutor asked Detective Judy if

he could recognize Evans’ voice based upon the fact that he had listened to jail

recordings between Evans and family members, and Detective Judy replied,

“Absolutely.” Defense counsel objected, contending that it was inappropriate to

permit Detective Judy—the lead detective—to testify to such matters. Counsel

also asserted that to permit Detective Judy to offer an opinion would invade the

province of the jury because he was not a family member or close friend who had

spoken with Evans in the past. The trial court overruled the objection, stating:

The comparison, apparently, is a known voice exemplar from a jail call and he’s heard the unknown voice [from the call-back recording]. And the jury can do that. There is no reason why this detective can’t

- 13 - do that and recognize it’s his own opinion. [The State is] not qualifying him as some sort of expert with voice waves and all that.

The trial court also stated that a voice identification by Detective Judy would not

be prejudicial because identifications of Evans as the voice on the call-back

recording had been made by Beth’s daughter Molly and Beth’s neighbor Ashby.

Thereafter, Detective Judy testified that he had listened to the call-back recording

over fifty times, and there was no question in his mind that Evans was the voice

saying, “No, you’re not;” “Sit on the bed;” and “Jerry, sit on the bed.”

A trial court’s decision to admit evidence is reviewed under the abuse of

discretion standard. Hudson v. State, 992 So. 2d 96, 107 (Fla. 2008). “That

discretion, however, is limited by the rules of evidence.” Id. Relevant testimony is

inadmissible where its probative value is substantially outweighed by the danger of

unfair prejudice. § 90.403, Fla. Stat. (2014). If the trial court erred in admitting

certain evidence, we review whether the error was harmful, focusing on the effect

that the error had upon the trier-of-fact. Gregory v. State, 118 So. 3d 770, 782

(Fla. 2013). “In other words, ‘[t]he question is whether there is a reasonable

possibility that the error affected the verdict.’ ” Id. (quoting State v. DiGuilio, 491

So. 2d 1129, 1139 (Fla. 1986)).

This Court has held that testimony that a lay witness recognizes a voice as

belonging to the accused is admissible as proof of identity. England v. State, 940

So. 2d 389, 400-01 (Fla. 2006). However, testimony that a witness recognizes the

- 14 - voice of the accused is inadmissible on the basis that it invades the province of the

jury unless the testifying witness (1) was an eyewitness to the crime, (2) has some

prior special familiarity with the voice of the defendant, or (3) is qualified as an

expert in identification. See, e.g., Charles v. State, 79 So. 3d 233, 235 (Fla. 4th

DCA 2012); Ruffin v. State, 549 So. 2d 250, 251 (Fla. 5th DCA 1989).

In numerous cases, courts have permitted a witness to identify a defendant’s

voice or image where the witness in question was previously familiar with the

defendant. For example, the Second District Court of Appeal has held that the

State could present two witnesses to testify that the voice they heard on a recording

belonged to the defendant, noting that these witnesses had known the defendant

“for a significant period of time” and had spoken to the defendant in person and

over the telephone. State v. Cordia, 564 So. 2d 601, 601-02 (Fla. 2d DCA 1990);

see also Hardie v. State, 513 So. 2d 791, 792 (Fla. 4th DCA 1987) (holding that

police officers who had prior knowledge and contact with the defendant before the

crime at issue could testify as to the defendant’s identity so long as they did not

identify themselves as police).

In contrast, in Ruffin, 549 So. 2d at 251, the State presented the testimony of

three police officers, over objection, who opined that the defendant was the person

in a video shown to the jury even though they had no prior knowledge of the

defendant. The Fifth District Court of Appeal held that this opinion testimony

- 15 - invaded the province of the jury because “[w]hen factual determinations are within

the realm of an ordinary juror’s knowledge and experience, such determinations

and the conclusions to be drawn therefrom must be made by the jury.” Id. In

determining that the defendant was entitled to a new trial, the district court stressed

that the opining officers “were not eyewitnesses to the crime, they did not have any

special familiarity with Ruffin, and they were not qualified as any type of experts

in identification.” Id.

Similarly, in this case, Detective Judy was not an eyewitness to the crime,

nor was he qualified as a voice identification expert. Therefore, the only basis

upon which his identification of Evans as the voice on the 911 call-back recording

could have been admissible was if he had already possessed a special familiarity

with Evans’ voice. Detective Judy testified that he had listened to known

recordings of Evans’ voice from jail conversations and was able to recognize his

voice based upon these recordings. This, however, did not amount to a prior

special familiarity.

While the dissent relies on Vilsaint v. State, 127 So. 3d 647, 648 (Fla. 4th

DCA 2013), for the proposition that a police officer can identify a defendant’s

voice on a recording based on later conversations, that case concerns a trial judge’s

determination of whether the recording can be authenticated and thus presented to

the jury—it does not involve a police officer testifying to the jury itself that the

- 16 - defendant’s voice sounds like the same voice on a recording that documented the

murder. We find that case factually distinguishable. Other cases relied upon by

the dissent involve a prior special familiarity with the defendant before the charged

crime. See, e.g., Barrientos v. State, 1 So. 3d 1209, 1212 (Fla. 2d DCA 2009)

(deputy had prior familiarity with the defendant); Cordia, 564 So. 2d at 601

(officers who had known the defendant “for a significant period of time,” and who

had spoken to him in person, over the telephone, and via police radio were

permitted to identify the defendant’s voice on a recording even if they were not the

individuals who received the original telephone call). However, a police officer

investigating a particular suspect’s voice after the investigation is ongoing, as in

this case, does not constitute the requisite prior familiarity with the suspect. Thus,

we conclude that it was error for the trial court to permit Detective Judy to opine

that the voice on the recording belonged to Evans when he did not have prior

familiarity with Evans or special training in voice recognition.

Further, this error was magnified by the fact that the jury was aware

Detective Judy was the lead detective investigating this case. As we have

previously explained, “error in admitting improper testimony may be exacerbated

where the testimony comes from a police officer.” Martinez v. State, 761 So. 2d

1074, 1080 (Fla. 2000). “When a police officer, who is generally regarded by the

jury as disinterested and objective and therefore highly credible, is the

- 17 - corroborating witness, the danger of improperly influencing the jury becomes

particularly grave.” Id. (quoting Rodriguez v. State, 609 So. 2d 493, 500 (Fla.

1992)). “There is the danger that jurors will defer to what they perceive to be an

officer’s special training and access to background information not presented

during trial.” Charles, 79 So. 3d at 235.

In fact, permitting questions that elicit a witness’s position as a police officer

when that witness is identifying a defendant’s voice or image has been held to be

reversible error even when the identification itself was permissible. In Day v.

State, 105 So. 3d 1284, 1286-87 (Fla. 2d DCA 2013), the district court held that a

law enforcement officer could testify as to her opinion that the defendant was one

of the people in a surveillance video because the witness testified that she

previously knew the defendant and could independently identify her—she was a

“community-oriented police officer” for a specific area of town and, as part of her

job, she knew many of the residents, including the defendant. Even though she had

familiarity with the defendant, the district court concluded that the trial court

committed reversible error, nevertheless, in permitting the State to also elicit

evidence that the witness was a police detective. Id.; see also Hardie, 513 So. 2d at

792 (reversing convictions and holding that police officers who had prior

knowledge and contact with the defendants could testify as to the defendants’

identity but could not identify themselves as police).

- 18 - In this case, the trial court applied the wrong analysis when it reasoned that

the State could introduce Detective Judy’s voice identification because it was not

“prejudicial” but merely cumulative to testimony from Beth’s daughter and Ashby,

the next door neighbor. The correct analysis was whether Detective Judy’s

testimony was independently admissible. Moreover, while Molly was Evan’s

stepdaughter and Ashby was the next door neighbor, Detective Judy, as the lead

detective, lent an aura of expertise to the voice identification precisely because of

his status as the law enforcement officer in charge of the investigation, adding the

imprimatur of his belief in the defendant’s guilt. Therefore, the trial court erred

when it admitted the opinion testimony of the lead detective and concluded that the

testimony would not be “prejudicial” because Molly and Ashby had already

identified the voice as that of Evans.

Since Evans objected to the admission of this evidence, this error is subject

to a harmless error analysis. See State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla.

1986). We would consider whether the erroneous admission of Detective Judy’s

testimony was harmless beyond a reasonable doubt, standing alone, but because we

conclude that other preserved errors also occurred, we consider the effect of the

preserved errors cumulatively to determine whether there is any reasonable

possibility that the errors contributed to the conviction. See McDuffie v. State, 970

So. 2d 312, 328 (Fla. 2007).

- 19 - II. Insinuations Regarding Hiring a Private Investigator

In the next claim we address, Evans asserts that the trial court erred in

denying his motion for a mistrial and declining to give a curative instruction after

the State insinuated that Evans hired a private investigator to investigate Gerald

Taylor. During cross-examination, the following dialogue occurred between the

prosecutor and Evans:

STATE: Your testimony today is you did not know that name of the person [Beth] was going to—she was seeing? EVANS: I did not know the name of the person that she was seeing that night. I knew it as a date. STATE: And isn’t it true you pressed her to get the information about [Taylor]?

EVANS: I don’t recall having a conversation like that, sir.

STATE: Do you recall telling her that you actually knew where he lived and how many kids he had? EVANS: I don’t recall that I knew anything about Gerald Taylor, sir.

STATE: Isn’t it true that you hired a private investigator to find out information about . . . Taylor prior to December 20th of 2008?

EVANS: No, sir. After the State presented Detective Judy as a rebuttal witness, defense counsel

moved for a mistrial on the above questions, arguing:

[T]here has been no evidence of any kind that has been presented that would suggest that that statement was true. And what it has done now is it’s before this jury [“]isn’t it a fact that you hired a private investigator to go out and learn about and research Jerry Taylor, which, obviously, implies that you went to the extreme of hiring

- 20 - somebody because you were stalking Beth and that you were trying to get information about his guy that she was seeing before the homicide occurred.[”] And [Evans] answered no, and there’s been no evidence at all presented that that could be a true statement.

The prosecutor offered the following explanation for the question:

I totally had a good faith basis to ask it. I guess I should have known what his answer would be because, as you know, I don’t have access to the Defendant. But there had been information from the victim in this case that she had told other people, which would be hearsay, that she believed that the Defendant had hired a private investigator because the morning of December 20th when he was pressing her about who she was going out with that night, and she finally said Jerry Taylor, he then told her where he lived and how many children he had. So she believed that he had hired a private investigator. So that is the reason that I asked him that question. I didn’t really expect him to answer it truthfully, but I certainly had a good faith basis in asking it. . . . I wasn’t just making stuff up to try to make him look bad. There was an actual basis in fact why I asked it.

The trial court denied both the motion for mistrial and defense counsel’s request

for a curative instruction.

This Court recently held that “[i]t is impermissible for the state to insinuate

impeaching facts while questioning a defense witness without evidence to back up

those facts.” Braddy v. State, 111 So. 3d 810, 853 (Fla. 2012) (quoting Shimko v.

State, 883 So. 2d 341, 343 (Fla. 4th DCA 2004)). We recognized that this

principle held true regardless of whether the State insinuated impeaching facts and

never had proof of those facts or whether that evidence did exist, but was not later

proved. Id.

- 21 - The Third District Court of Appeal has explained why such insinuation is

impermissible without later presenting proof of the underlying facts:

The reason that such proof must be forthcoming is because the predicate question—e.g., ‘Didn’t you tell me . . .?’ or ‘Didn’t you say to so-and-so’—is itself testimonial, that is, the question suggests that there is a witness who can testify that such a statement was made. When this suggested witness is not actually called to give the impeaching testimony under oath, all that remains before the jury is the suggestion—from the question—that the statement was made. When that occurs, the conclusion that must be drawn is that the question was not asked in good faith, and that the attorney’s purpose was to bring before the jury inadmissible and unsworn evidence in the form of his questions to a witness.

Marrero v. State, 478 So. 2d 1155, 1157 (Fla. 3d DCA 1985) (emphasis omitted).

In this case, the State stresses that the prosecutor asked the question in good

faith—an assertion that, even if relevant, is not supported by the record. The

prosecutor’s basis for this question was that Beth had told others that she

“believed” Evans had hired a private investigator. This comment was purely

speculative, and the reasons behind her belief could not be explored after her death.

Further, the prosecutor recognized that the information he sought to elicit was

based on hearsay and was inadmissible.

Had the prosecutor provided evidence to impeach Evans in response to his

denial that he hired a private investigator, this line of cross-examination may have

been permissible. However, the prosecutor never revisited the subject or produced

impeachment evidence. Therefore, the prosecutor’s insinuations arguably left the

- 22 - jury with the damaging impression that Evans stalked Beth and was so obsessed

with her that he hired a private investigator to acquire information about her new

boyfriend. This line of questioning, which was not supported by any evidence,

was improper. See Braddy, 111 So. 3d at 853. The dissent fails to reconcile its

position that this type of questioning should be permissible with our holding in

Braddy—thus, its reliance on the Fourth District’s opinion in Carpenter v. State,

664 So. 2d 1167, 1167 (Fla. 4th DCA 1995), which was decided well before

Braddy, is misplaced. Further, Carpenter is distinguishable because, prior to

asking the insinuating question, the State could have called a witness to support its

insinuation and, in fact, had that witness’s written statement at the time the

prosecutor asked the question. Here, the evidence the State relied upon to ask the

insinuating question was inadmissible hearsay, and there was no evidentiary basis,

beyond the hearsay itself, to support the question.

Not only was the State permitted to ask these improper questions, but this

line of questioning targeted a key issue that the jury was required to resolve—

whether the murders of Beth and Taylor were premeditated. The evidence

pertaining to this question was highly contested. The jurors had heard mixed

testimony as to whether Evans had accepted the dissolution proceedings that Beth

initiated, or if he was trying to save his marriage and reconcile with her. These

improper questions planted a seed in the minds of the jurors that Evans was a

- 23 - stalker who secretly investigated Beth’s new boyfriend to determine where he

lived. These unsubstantiated allegations would give jurors the impression that

Evans was obsessed with his estranged wife, and this could have played a role in

their conclusion that the murders were premeditated. It could have also been

considered by the jury in determining that Evans entered Beth’s home with the

intent to commit a felony.

Accordingly, because the trial court erred in permitting the State to ask these

improper questions, we must consider the cumulative effect of this preserved error,

along with the other preserved errors, to determine whether there is any reasonable

possibility that the errors contributed to the conviction.

III. Guilt-Phase Closing Arguments

Evans next alleges that during guilt-phase closing arguments, the prosecutor

improperly commented on Evans’ right to a jury trial, misstated the law, and

denigrated Evans and his defense. Many of these comments occurred during the

State’s rebuttal—the last opportunity for the jury to hear the attorneys speak about

the case and the conclusions to be drawn from the evidence.7

7. The prosecutor who presented the rebuttal closing statement, William A. Loughery, has “pushed the envelope” in other cases. Sheridan v. State, 799 So. 2d 223, 225-26 (Fla. 2d DCA 2001). Mr. Loughery was previously chided by the Second District Court of Appeal for his arrogance and his inappropriate comments. Id. In Sheridan, the Second District stated:

- 24 - As Evans acknowledges, defense counsel objected to some of the comments,

but not all of them. He also unsuccessfully moved for a mistrial, based on some of

the comments. Thus, three standards of review are relevant. For those closing

A troubling aspect of the trial was the prosecutor’s conduct. Indeed, one of Sheridan’s issues on appeal was that the trial court erred when it denied his motions for mistrial predicated upon repeated prosecutorial misconduct in closing argument. . . . Mr. Loughery repeatedly made improper statements during closing argument, including the reference to a defense theory as “desperate.” The trial judge felt that Mr. Loughery was challenging him to declare a mistrial. When the trial judge questioned Mr. Loughery on this point, he responded:

Let me explain this. I certainly am not [attempting to have a mistrial declared], okay? And I hate to say this, but I will. You know, I have tried a lot of cases. I’ve never been reversed as a prosecutor for misconduct. Never. I’ve won most of my cases. I never had a conviction reversed. This is no different than things I might say in other cases. Now, I don’t know what your experience is with the prosecutors you’ve watched. Maybe they’re a bunch of dishrags. I don’t know. But what I’m doing is not improper, okay?

We have set forth this comment to demonstrate the arrogant attitude displayed by the prosecutor during the trial of this extremely strong case. It was not necessary for Mr. Loughery to have “pushed the envelope” as he did. But for the fact that the evidence was so overwhelming and that Sheridan was convicted of a lesser offense than that with which he had been charged, Mr. Loughery’s statements and actions may well have resulted in this court reversing the conviction due to prosecutorial misconduct.

Id. at 225-26 (emphasis supplied).

- 25 - arguments where the defense objected to improper comments and the trial court

erroneously overruled defense counsel’s objection, we apply a harmless error test.

See Snelgrove v. State, 921 So. 2d 560, 568 (Fla. 2005); Doorbal v. State, 837

So. 2d 940, 956-57 (Fla. 2003). Where counsel failed to raise a contemporaneous

objection when improper closing argument comments were made, the unobjected-

to comments must rise to the level of fundamental error, which has been defined as

error 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.” Brooks v. State, 762 So. 2d 879, 898-99 (Fla. 2000) (quoting McDonald v.

State, 743 So. 2d 501, 505 (Fla. 1999)). Finally, where the trial court denied a

motion for mistrial, we review that ruling under an abuse of discretion standard.

See Carr v. State, 156 So. 3d 1052, 1066 (Fla.) (holding that if the prosecutor’s

comment was improper, any error was harmless beyond a reasonable doubt and the

trial court did not abuse its discretion in denying the defense motion for mistrial on

that basis), cert. denied, No. 14-9726 (Oct. 5, 2015); Belcher v. State, 961 So. 2d

239, 255 (Fla. 2007) (explaining that, where the trial court erroneously overrules

an objection to improper prosecutorial comments, this Court reviews the comments

for harmless error and the denial of the motion for mistrial based upon the

comments for abuse of discretion).

- 26 - On appeal, this Court must review “the entire closing argument with specific

attention to the objected-to arguments and the unobjected-to arguments.” Card v.

State, 803 So. 2d 613, 622 (Fla. 2001); see also Merck v. State, 975 So. 2d 1054,

1061 (Fla. 2007). As this Court has explained, “A trial court has discretion in

controlling opening and closing statements, and its decisions will not be overturned

absent an abuse of discretion. We look at the closing argument as a whole to

determine whether that discretion was abused.” Merck, 975 So. 2d at 1061.

We address each challenge separately and then discuss the cumulative

impact of any improper comments.

A. The Prosecutor’s Erroneous Statement of the Law

Evans asserts that during guilt-phase closing arguments, the prosecutor

misstated the law when he informed the jurors that a killing in the heat of passion

qualifies as second-degree murder, failing to acknowledge that a heat of passion

killing can also constitute manslaughter. When the prosecutor explained why the

crimes were first-degree offenses and did not satisfy the criteria for second-degree

murder, he stated:

What varies greatly in this case is a second-degree murder is not one of premeditation. It is one that the law instructs you that it is an act done by—imminently dangerous to another or demonstrating a depraved mind without regard to human life. And it’s often referred to in society as one of heat of passion and one of a—I guess, the heat of passion is how it’s described out in society. I will suggest there is one major fact in this case that allows you to say this is not second-degree murder. This is not heat of passion

- 27 - because of the main fact of where this occurs. It occurs in the bedroom of Elizabeth Evans. Okay? .... You can’t bring—you can’t subject yourself to the situation. You can’t run into the house with a gun knowing they are out on a date, and divorce proceedings are pending, and somehow claim that I am so outraged by what I saw, I pulled out a gun and I started firing at people. Because I was so blinded by my passion and anger, I just pulled out a gun and in a depraved mind started shooting it at these individuals.

(Emphasis supplied.) Evans did not object. With regard to manslaughter, the

prosecutor stated only:

Ladies and gentlemen, there is one final lesser included. I’m not going to go in depth into it. It’s one of manslaughter. Reading the instruction on manslaughter, you will find that the evidence in this case goes way beyond manslaughter. It is error for a prosecutor to misstate the law during closing arguments.

See, e.g., Brooks, 762 So. 2d at 902; Charriez v. State, 96 So. 3d 1127, 1127 (Fla.

5th DCA 2012). In Johnson v. State, 969 So. 2d 938, 952 (Fla. 2007), this Court

addressed “heat of passion” and explained:

The jury could have concluded from this evidence that Johnson acted not from premeditation but from a depraved mind regardless of human life or in the heat of passion, which would make the killing second- degree murder or manslaughter. Cf. Douglas v. State, 652 So. 2d 887, 890 (Fla. 4th DCA 1995) (“[A] jury can find a defendant who has killed in the heat of passion guilty of either second degree murder or manslaughter . . . .”) (citing Forehand v. State, 171 So. 241 (Fla. 1936)).

See also Villella v. State, 833 So. 2d 192, 195 (Fla. 5th DCA 2002) (noting that

heat of passion “can be used as a partial defense, to negate the element of

- 28 - premeditation in first degree murder or the element of depravity in second degree

murder”). Thus, Evans is correct that the prosecutor failed to inform the jury that

under Florida law, a heat of passion killing can also constitute manslaughter and

not just second-degree murder. When reviewing closing arguments, this Court

considers the cumulative effect of all improper arguments, including the objected-

to and unobjected-to closing arguments. See Merck, 975 So. 2d at 1062; Brooks,

762 So. 2d at 898-99 (considering cumulative effect of numerous instances of both

objected-to and unobjected-to improper prosecutorial comment).

B. Right to a Jury Trial

Evans next asserts that the prosecutor impermissibly commented on his right

to a jury trial:

So we looked at some financials of Andrea to suggest—you know, folks, when you got a guy on tape doing a murder and using his gun, I’m going to suggest there is not a lot you can argue. This is what America is about. Everybody has a right to a jury trial. .... So in America everybody has a right to a jury trial regardless of the evidence against you. It could be on videotape. It could be in front of a hundred priests. You have a right to a jury trial.

(Emphasis supplied.) Defense counsel objected and moved for a mistrial after the

first comment, contending that the prosecution was denigrating the defense. The

trial court overruled the objection and denied the motion for mistrial. No objection

was raised to the second comment.

- 29 - It is improper for a prosecutor to comment on a defendant’s exercise of his

right to a jury trial. Bell v. State, 723 So. 2d 896, 897 (Fla. 2d DCA 1998)

(holding that the trial court erred when it overruled an objection to the prosecutor’s

comment that the “only one reason we’re here” was because the defendant had the

right to a jury trial); Johns v. State, 832 So. 2d 959, 962-63 (Fla. 2d DCA 2002)

(stressing that it was improper for the prosecutor to disparage the defendant for

having exercised his right to a jury trial and holding that the defendant was entitled

to a new trial based on that comment, in addition to other improper comments).

Here, the prosecutor asserted that the defense theory was weak, saying “there is not

a lot [Evans] can argue.” He then followed up by saying that no matter how strong

the evidence is against a criminal defendant, he or she still has a right to a jury trial

in America, using the videotape and the “hundred priests” examples.

Although the State contends that the prosecutor was merely referencing a

truism of American constitutional rights, this begs the question why the prosecutor

felt it was even necessary to reference the right to a jury trial in America—not once

but twice, the second time after defense counsel moved for a mistrial. While

referencing this right may at times fall within the “wide latitude” that is given to

attorneys during closing arguments, Merck, 975 So. 2d at 1061, these comments

were similar to those held to be improper in Bell because they were specifically

directed at Evans’ decision to seek a jury trial despite the significant incriminating

- 30 - evidence against him. Such a comment negatively reflected upon Evans’ exercise

of his constitutional right because it suggested that he wasted the time of the court

and the jury by seeking a jury trial.

Thus, both of the comments were improper, and the trial court abused its

discretion when it overruled defense counsel’s objection to the first comment. We

address the cumulative impact of these errors below.

C. Reliance on Facts Not in Evidence & Improper Comments that Denigrated the Defendant or Defense

Evans presents multiple preserved and unpreserved challenges to the guilt-

phase closing arguments in which the prosecutor either relied on facts not in

evidence or denigrated the defense. We hold that three of these comments were

improper.

First, he points to a comment regarding homicides committed by family

members, where the prosecutor relied on facts not in evidence to suggest that the

victim was more likely murdered by a family member:

Now, what do you think goes through the police’s head at that point? Before they know anything else, they would say—common sense would tell you, she’s got an estranged husband. We better look into that. There you go. Maybe. Maybe that person did it. Or maybe he’s a suspect. He’s suspected. Because we need to find out because, as you all know, most homicides are committed by family members or friends.

(Emphasis supplied.) The trial court overruled defense counsel’s objection to this

comment.

- 31 - This Court has explained that “[a] criminal trial is a neutral arena wherein

both sides place evidence for the jury’s consideration; the role of counsel in closing

argument is to assist the jury in analyzing that evidence, not to obscure the jury’s

view with . . . nonrecord evidence.” Ruiz v. State, 743 So. 2d 1, 4 (Fla. 1999)

(emphasis supplied). The statement that, statistically speaking, Beth was most

likely murdered by a family member was an improper comment. The trial court

abused its discretion when it overruled this objection.

Evans also challenges numerous comments that denigrated the defense or

defense attorneys as a whole. In arguing to the jury, the prosecutor stated the

following:

And it’s amazing that [defense counsel] suggests the reason [Evans] is not guilty is because there is evidence against him. Okay? Because the shell [casings] are there, he clearly didn’t do it because he would have picked them up. I mean, only in a world populated by defense attorneys would that be true.

(Emphasis supplied.) Defense counsel both objected and moved for a mistrial

based upon this comment. Although the trial court did not specifically rule on the

objection, it denied the motion for mistrial.

In addition, the prosecutor implied to the jury that the defense’s theory was

so far-fetched and unbelievable that it would not even be written for a television

series. Like the prior comment, this comment addresses the theory of the

- 32 - defense—specifically, that someone else may have been responsible for the

murders:

But the defense of this, I suggest, is that somebody else did that and intentionally left the stuff so the police would believe that [Evans] did it, that he’s being framed . . . . What a clever frame these people had that they could—this real murderer, that he could get Beth and Jerry to go along with this perfect script where they actually called him Rick and they could scream and do all this stuff. And they had it on the 911 tape. And he could kill them and then he could leave the holster and leave the casings so they would think—because they stole the gun from Rick earlier so that they would think that Rick did it. I mean, talk about bad TV. That wouldn’t even make it on TV.

(Emphasis supplied.) Counsel objected and moved for a mistrial. The trial court

overruled the objection and denied the motion.

A prosecutor is not permitted to denigrate the theory of the defense. Jackson

v. State, 147 So. 3d 469, 486 (Fla. 2014). This comment is inappropriate, not only

towards counsel and the theory of the defense, but towards all defense attorneys in

general. In fact, the comment is more egregious than in recent cases where we

have cautioned the prosecution against making disparaging comments, including

when the prosecutor referred to the defense as “grasping [at] straws,” see id., or

asserted that defense counsel must have been “in a different trial” because “[t]heir

arguments make absolutely no sense,” Braddy, 111 So. 3d at 838. See also

Sheridan, 799 So. 2d at 225 (expressing concerns over improper prosecutorial

- 33 - comments that a defense strategy was “desperate”). Accordingly, the trial court

should not have permitted such comments.

If improper comments are made during closing arguments, the Court

“considers the cumulative effect of objected-to and unobjected-to comments when

reviewing whether a defendant received a fair trial.” Merck, 975 So. 2d at 1061.

Here, the prosecutor (1) made erroneous statements of the law; (2) commented

multiple times on Evans’ decision to exercise his right to a jury trial; (3) relied on

facts not in evidence; and (4) denigrated and ridiculed not only the theory of the

defense, but all defense attorneys.

We next consider the cumulative effect of all of the errors addressed above.

IV. Cumulative Error During the Guilt Phase

Having concluded that multiple errors occurred in this case, we proceed to

consider the cumulative effect of those errors to determine whether those errors are

harmless. See McDuffie, 970 So. 2d 328 (conducting a cumulative harmless error

analysis where multiple preserved errors occurred). Harmless error analysis places

the burden upon the State, as beneficiary of the errors, to prove there is “no

reasonable possibility that the error contributed to” the defendant’s conviction.

DiGuilio, 491 So. 2d at 1138. As we have repeatedly stressed, the harmless error

test “is not a sufficiency-of-the-evidence, a correct result, a not clearly wrong, a

substantial evidence, a more probable than not, a clear and convincing, or even an

- 34 - overwhelming evidence test” but the “focus is on the effect of the error on the trier-

of-fact.” Id. at 1139.

Here, Evans has identified three preserved errors—(1) improper voice

identification that invaded the province of the jury; (2) unsubstantiated,

incriminating questioning of Evans that implied the defendant stalked the victim’s

current boyfriend; and (3) preserved objections to improper closing arguments,

including criticizing the defendant’s exercise of his right to a jury trial, denigrating

the defendant’s theory of defense, and relying on facts not in evidence. We

consider the effect of the preserved errors cumulatively to determine if they could

be considered harmless beyond a reasonable doubt. In addition, Evans also raises

other unobjected-to improper closing arguments, including misstatements of the

law and other comments that criticized the defense theory and his exercise of his

right to a jury trial—errors which we also consider in this analysis.

In this circumstantial evidence case, Evans presented evidence that he had

an alibi when the murders occurred. Further, he suggested other possible suspects

who may have had the opportunity and ability to kill the victims. Even if the State

had proven that Evans killed the victims, questions pertaining to whether the crime

was a heat-of-passion murder or whether the murders were premeditated or

committed during a felony where hotly contested. These were questions for the

jury to determine, and many of the errors went straight to the heart of these issues.

- 35 - We conclude that the preserved errors that occurred in this case, when

viewed cumulatively, cannot be considered harmless beyond a reasonable doubt.

Allowing the police officer to identify Evans as the voice in the 911 recording,

despite his prior lack of knowledge of Evans, invaded the province of the jury—an

error that was exacerbated by the fact that the jury knew the witness was the lead

detective in the case. Further, by permitting the prosecutor’s insinuating

questioning of Evans in an apparent attempt to introduce evidence that was not

otherwise admissible, the questions pertaining to Evans’ supposed hiring of a

private investigator embedded the image of Evans as a stalker in the minds of the

jurors. Finally, in closing arguments, the prosecutor made numerous improper

arguments, relying on facts that were not in evidence, making multiple sarcastic

and denigrating comments that disparaged the defendant’s theory of the case and

defense attorneys as a whole, and strongly implied that Evans was wasting the time

of the court and the jurors by requesting a jury trial on a weak defense—comments

that this Court has consistently disapproved. Each of these errors is significant in

its own right. The existence of the unpreserved errors buttresses our conclusion

that Evans is entitled to a new trial.

Accordingly, we vacate Evans’ convictions and sentences and grant him a

new trial.

V. Sufficiency of the Evidence

- 36 - Although we have concluded that reversible error occurred, this Court must

analyze the sufficiency of the evidence because if there is insufficient evidence on

which to convict Evans of these murders, it is our obligation to vacate the

convictions with directions to grant judgments of acquittal. See McDuffie, 970 So.

2d at 329. Evans asserts that the trial court should have granted his motion for

judgment of acquittal on premeditated first-degree murder because the State

presented insufficient evidence of premeditation and the crimes were “heat of

passion” killings. He also contends that the circumstantial evidence in the case

was consistent with his reasonable hypothesis of innocence. We reject both

contentions.

A trial court’s ruling on a motion for judgment of acquittal is reviewed de

novo. Pagan v. State, 830 So. 2d 792, 803 (Fla. 2002). In moving for a judgment

of acquittal, a defendant “admits not only the facts stated in the evidence adduced,

but also admits every conclusion favorable to the adverse party that a jury might

fairly and reasonably infer from the evidence.” Floyd v. State, 850 So. 2d 383,

395-96 (Fla. 2002) (quoting Lynch v. State, 293 So. 2d 44, 45 (Fla. 1974)). A trial

court should grant a motion for judgment of acquittal in a circumstantial evidence

case

if the state fails to present evidence from which the jury can exclude every reasonable hypothesis except that of guilt. Consistent with the standard set forth in Lynch, [293 So. 2d 44], if the state does not offer evidence which is inconsistent with the defendant’s hypothesis, “the

- 37 - evidence [would be] such that no view which the jury may lawfully take of it favorable to the [State] can be sustained under the law.” [Lynch,] 293 So. 2d at 45. The state’s evidence would be as a matter of law “insufficient to warrant a conviction.” Fla. R. Crim. P. 3.380. It is the trial judge’s proper task to review the evidence to determine the presence or absence of competent evidence from which the jury could infer guilt to the exclusion of all other inferences. That view of the evidence must be taken in the light most favorable to the state. The state is not required to “rebut conclusively every possible variation” of events which could be inferred from the evidence, but only to introduce competent evidence which is inconsistent with the defendant’s theory of events. Once that threshold burden is met, it becomes the jury’s duty to determine whether the evidence is sufficient to exclude every reasonable hypothesis of innocence beyond a reasonable doubt.

Floyd, 850 So. 2d at 396 (quoting State v. Law, 559 So. 2d 187, 188-89 (Fla.

1989)) (emphasis omitted).

This Court has explained that premeditation is not just the intent to kill; it is

“a fully formed conscious purpose to kill. This purpose may be formed a moment

before the act but must exist for a sufficient length of time to permit reflection as to

the nature of the act to be committed and the probable result of that act.” Bolin v.

State, 117 So. 3d 728, 738 (Fla. 2013) (quoting Woods v. State, 733 So. 2d 980,

985 (Fla. 1999)). “Premeditation may be inferred from such facts as ‘the nature of

the weapon used, the presence or absence of adequate provocation, previous

difficulties between the parties, the manner in which the homicide was committed,

and the nature and manner of the wounds inflicted.’ ” Id. (quoting Bradley v.

State, 787 So. 2d 732, 738 (Fla. 2001)).

- 38 - Contrary to Evans’ contention, the circumstantial evidence in this case was

inconsistent with his reasonable hypothesis of innocence. The record reflects that

on the night of the murders, Evans knew Beth was on a date with another man.

Evidence suggested that he wished to reconcile with Beth, although she had filed a

petition for dissolution of marriage. Someone who resembled Evans was spotted at

the complex walking in the direction of Beth’s residence approximately twenty-

five minutes before the 911 hang-up occurred. The recorded conversation from the

911 call-back reflects the exact conversation and the murders as they occurred,

demonstrating both the length of time in which the crime occurred, the lack of

provocation, and the murderer’s voice and verbal demeanor.

Additionally, the shell casings found near the bodies matched the test-fired

casings recovered from Evans’ safe and Beth called the shooter “Rick.” The facts

of this case, including bringing a firearm to Beth’s house on a night when Evans

knew she was on a date, the lack of provocation, and Evans’ verbal demeanor

during the murder, are inconsistent with a “heat of passion” theory. As this Court

has previously held, “[i]n a circumstantial evidence case in which there is

inconsistency between the defendant’s theory of innocence and the evidence when

viewed most favorably to the State, the question is for the finder of fact to resolve

and the motion for judgment of acquittal must be denied.” Floyd, 850 So. 2d at

397-99 (holding the trial court did not err in denying a motion for judgment of

- 39 - acquittal in a circumstantial evidence case where the defendant asserted the murder

could have been a “heat of passion” murder because his decision to bring a gun to

the victim’s house was inconsistent with his theory that he shot her in a moment of

uncontrolled rage).

Based upon the circumstantial evidence in this case, we determine that the

trial court did not err in denying the motion for judgment of acquittal regarding the

charge of premeditated murder.

VI. Burglary as the Underlying Felony as a Basis for First-Degree Felony Murder

We conclude by addressing Evans’ argument that the trial court erred in

denying the motion for judgment of acquittal on first-degree felony murder and

erred in instructing the jury on burglary as the underlying felony as a basis for first-

degree felony murder. We address this issue because, while we hold that Evans is

entitled to a new trial, this issue is likely to arise in the retrial.

According to Evans, the State failed to establish that he lacked consent to

enter Beth’s condominium on the night of the murders and, therefore, the

underlying crime of burglary was not proven. The burglary statute provides as

follows:

(b) For offenses committed after July 1, 2001, “burglary” means: 1. Entering a dwelling, a structure, or a conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public or the defendant is licensed or invited to enter; or

- 40 - 2. Notwithstanding a licensed or invited entry, remaining in a dwelling, structure, or conveyance: a. Surreptitiously, with the intent to commit an offense therein; b. After permission to remain therein has been withdrawn, with the intent to commit an offense therein; or c. To commit or attempt to commit a forcible felony, as defined in s. 776.08.

§ 810.02 (1)(b), Fla. Stat. (2008). The Florida Legislature has specifically stated

that consent is an affirmative defense to the crime of burglary, and “the lack of

consent may be proven by circumstantial evidence.” Aguirre-Jarquin v. State, 9

So. 3d 593, 605 (Fla. 2009) (quoting § 810.015(3), Fla. Stat. (2004)). In

circumstantial evidence cases, the trial court must grant a judgment of acquittal if

the State has failed to present evidence from which a jury could exclude every

reasonable hypothesis except that of guilt. Walker v. State, 957 So. 2d 560, 577

(Fla. 2007).

Here, there is no dispute that Evans was permitted entry into Beth’s

condominium on occasion. For example, he would visit to drop off and pick up his

son. Because Beth is deceased, there is no direct evidence that Evans’ entry that

night was without her consent, other than Molly’s testimony that Evans’ prior

entries into the home without knocking troubled her mother.

Circumstantial evidence, however, establishes a lack of consent because

every other reasonable hypothesis can be excluded. The record reflects that Beth

and Taylor were nude in the master bedroom at the time Evans entered the

- 41 - residence. It is highly unlikely that Beth would consent to her estranged

husband—or anyone else—entering her residence during such an intimate moment.

While Evans claims that the front door was unlocked, even if true, this would not

translate into an invitation for Evans to enter at that time.

Any purported belief by Evans that he thought consent existed for him to

enter the home that night is equally strained. Evans told Ashby that Beth was on a

date that night. Upon approaching the condominium, Evans would have observed

Taylor’s vehicle in the driveway and realized that Beth had company that night,

most likely her date. Based on the timing of the 911 call and the testimony from

Graham, who asserted somebody resembling Evans was near Beth’s condominium

around 6:45, Evans had sufficient time to observe events transpiring inside Beth’s

residence. Yet, he entered the residence, armed with a gun.

Under these facts, the trial court properly denied the motion for judgment of

acquittal on the felony-murder charge and instructed the jury on burglary as the

underlying felony as a basis for first-degree felony murder.

CONCLUSION

Based on the reasons explained in this opinion, we conclude that cumulative

error occurred that is not harmless beyond a reasonable doubt, thereby

necessitating a new trial. Accordingly, for the reasons stated in this opinion, we

vacate Evans’ convictions and sentences and remand for a new trial.

- 42 - It is so ordered.

LABARGA, C.J., and PARIENTE, QUINCE, and PERRY, JJ., concur. LEWIS, J., dissents with an opinion, in which POLSTON, J., concurs. CANADY, J., dissents with an opinion.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND IF FILED, DETERMINED.

LEWIS, J., dissenting.

I dissent from the majority opinion and would affirm the convictions of first-

degree murder and sentences of death. In my opinion, the testimony of Detective

Judy that identified Evans as the voice on the 911 call-back recording was

admissible, and the question as to whether Evans had hired a private investigator

was not inappropriate. Further, while I do not dispute that the prosecution made

multiple inappropriate comments during guilt-phase closing statements, I do not

believe that any of these comments, individually or cumulatively, rose to the level

of reversible error. I write specifically to discuss the voice identification and

private investigator claims.

Voice Identification

The identification of a defendant based solely upon his or her voice is

admissible as direct and positive proof of a fact, and the probative value of the

identification is a question for the jury. See Martin v. State, 129 So. 112, 115 (Fla.

1930). Voice identification testimony may be inadmissible on the basis that it

invades the province of the jury where a testifying witness (1) was not an

- 43 - eyewitness to the crime, (2) does not have a special familiarity with the

defendant’s voice, or (3) is not qualified as an expert in voice identification. See,

e.g., Charles v. State, 79 So. 3d 233, 235 (Fla. 4th DCA 2012) (quoting Ruffin v.

State, 549 So. 2d 250, 251 (Fla. 5th DCA 1989)). Contrary to the conclusory

statement by the majority, Detective Judy did indeed possess a special familiarity

with Evans’ voice and, therefore, the trial court properly allowed him to identify

Evans as the speaker on the 911 call-back recording. Any challenge to this

testimony is directed to weight, not admissibility.

Detective Judy’s familiarity arose from the fact that he listened to known

recordings of Evans’ voice from jail conversations with family members. Further,

the record reflects that he listened to the calls in an investigative capacity. During

a 2010 deposition, when asked if he heard anything “of value” on the jail

recordings with regard to the double homicide, Detective Judy stated that Evans

made no admissions or confessions. However, he observed the following:

[T]he first thing that [Evans] says on the calls is, no names. But from listening to the tapes and listening to the 911 call, I easily recognize Rick’s voice. I also recognize the voices of his brothers Glenn, Rodney and his mother Marcia. There’s no problem there. So I would think that that would be of value to the case. And also that he’s always called Rick on all the tapes, when they did use names. And every now and then Rodney slips and throws in a Rick there, which very much upsets him.

Thus, by listening to the jail recordings, Detective Judy learned that (1) family

members call Evans by the name Rick; (2) Evans attempted to dissuade them from

- 44 - using this name during the recorded calls; and (3) Evans became upset when

family members referred to him as Rick.

This testimony demonstrates that Detective Judy did not listen to the jail

recordings simply to identify Evans’ voice on the 911 call-back recording during

trial. Rather, as the lead detective in the case, he gained a special familiarity with

Evans’ voice in the course of his investigative duties; i.e., to obtain further

evidence which would corroborate Evans’ participation in the double homicide.

Therefore, I would conclude that Detective Judy clearly met the threshold for

admissibility of the identification.

Moreover, Florida courts have consistently allowed law enforcement officers

to identify the voice of a defendant where the officer has gained familiarity with

the voice. In Vilsaint v. State, 127 So. 3d 647, 648 (Fla. 4th DCA 2013), a

detective was permitted to identify Vilsaint’s voice on a jail telephone recording

where the detective had engaged in a brief conversation with him. Id. Based upon

the identification, the trial court admitted the recording, in which Vilsaint made

incriminating statements. During trial, the detective admitted that the

identification was based on approximately thirty-six words, mostly “yes” and “no.”

Id. at 649. Further, while Vilsaint spoke to the detective in English, the recorded

conversation was in Creole. Id. In affirming the trial court’s admission of the

identification, the Fourth District Court of Appeal stated:

- 45 - Here, the detective spoke to appellant for approximately ten to fifteen minutes prior to appellant being put in the cell. He said that based upon this he could identify appellant’s voice on the tape. This was sufficient to satisfy authentication, and the trial court did not abuse its discretion by overruling defense counsel’s objection to the identification. The jury could determine for itself the credibility of that identification. Id. at 650 (emphasis supplied).

Similarly, in Barrientos v. State, 1 So. 3d 1209, 1211 (Fla. 2d DCA 2009), a

law enforcement officer was allowed to testify that the voice recorded on an

electronic listening device worn by a confidential informant was that of Barrientos

based on the fact that the officer had heard his “deep, raspy voice” during a single

encounter that had occurred approximately four years earlier. Counsel for

Barrientos asserted it was implausible that the officer would remember the sound

of Barrientos’ voice under such circumstances. Id. at 1212-13. The Second

District Court of Appeal held that the officer’s testimony was admissible, but

explained that the credibility of that evidence was a jury question. Id. at 1213; see

also Worley v. State, 263 So. 2d 613, 613 (Fla. 4th DCA 1972) (officer who

received anonymous bomb threats was permitted to identify the defendant by voice

as the person who placed the calls; the Fourth District noted that “[t]he credibility

of such evidence is clearly a jury question”).

Even in the cases relied upon by the majority, the district courts have held

that identifications by police officers are permissible where the officers have

- 46 - gained a special familiarity with the defendant. In State v. Cordia, 564 So. 2d 601,

601 (Fla. 2d DCA 1990), the Second District granted a petition for writ of

certiorari and quashed the portion of a trial court order that excluded the voice

identification testimony of two police officers. Cordia was an officer who called

the police department of a nearby municipality and submitted a false report that

bombs had been planted there. Id. The officers whom the State sought to present

knew Cordia and had spoken with him in person, over the telephone, and over a

police radio, but they were not the officers who had received the call. Id. at 601-

02. The Second District concluded that because the officers claimed to possess

special knowledge of Cordia’s voice characteristics, they could offer an opinion as

to whether it was his voice on the call. Id. at 602. Conversely, in Ruffin, 549 So.

2d at 251, the Fifth District reversed the defendant’s convictions on the basis that

the identification of Ruffin by three officers as the man on a videotape selling

cocaine was improper. However, the Fifth District specifically noted that the

officers did not possess a special familiarity with Ruffin. Id.; see also Charles, 79

So. 3d at 235 (holding it was error to allow a detective to testify that it was Charles

who appeared on a surveillance video where the detective had no special

familiarity with Charles).

In Day v. State, 105 So. 3d 1284, 1286-87 (Fla. 2d DCA 2013), and Hardie

v. State, 513 So. 2d 791, 792 (Fla. 4th DCA 1987), the district courts also held that

- 47 - police officers could offer opinions as to whether the defendants were the

individuals depicted on video recordings committing crimes where the officers had

prior knowledge of or contact with the individuals. The convictions in these cases

were reversed only because the officers identified themselves to the jury as such

and, therefore, rendered it “inconceivable” that the jury would not conclude the

defendants had been involved in other criminal activities. Day, 105 So. 3d at 1288;

Hardie, 513 So. 2d 793-94. Unlike Day and Hardie, however, Detective Judy

became familiar with Evans’ voice through his investigation of these homicides—

not through investigations of any prior criminal activity by Evans, which could

have suggested to the jury that Evans previously had engaged in criminal conduct.

Therefore, Day and Hardie are totally distinguishable and do not support the

proposition that Detective Judy should not have been allowed to identify Evans as

the speaker on the 911 call-back recording.

Consistent with this precedent, it is apparent that the trial court did not

commit an abuse of discretion because the record demonstrates that Detective Judy

possessed a special familiarity with Evans’ voice. See Overton v. State, 801 So. 2d

877, 896 (Fla. 2001) (an abuse of discretion does not occur “unless no reasonable

person would take the view adopted by the trial court”). The probative value and

credibility of Detective Judy’s identification was a question for the jury. Martin,

- 48 - 129 So. at 115; Vilsaint, 127 So. 3d at 650, Barrientos, 1 So. 3d at 1213; Worley,

263 So. 2d at 613.

Private Investigator

I would further conclude that the trial court properly denied Evans’ motion

for a mistrial and declined to give a curative instruction after the prosecutor asked

Evans whether he had hired a private investigator to discover information about

Taylor. A motion for mistrial should be granted only when the error is so

prejudicial that the entire trial is vitiated. England v. State, 940 So. 2d 389, 401-02

(Fla. 2006).

In my view, this question was not inappropriate and, therefore, no error

occurred. According to the prosecutor, Beth had informed multiple individuals

that Evans had hired a private investigator. Her statements were supported by the

fact that on the morning of December 20th, when she told Evans the name of her

date, Evans informed her that he knew where Jerry Taylor lived and how many

children he had. The fact that Evans confronted Beth with this information

supported her statements that Evans hired someone to investigate Taylor.

Therefore, I would conclude that the prosecutor possessed a good faith basis to ask

this question.

Further, the prosecution was not required to introduce evidence during

rebuttal to demonstrate that Evans had in fact hired a private investigator. In

- 49 - Carpenter v. State, 664 So. 2d 1167, 1167 (Fla. 4th DCA 1995), the prosecutor

asked Carpenter, who claimed self-defense, whether he had told a third party that

he shot the victim because he was “sick and tired of the crap.” After Carpenter

denied making the comment, the prosecutor attempted to approach Carpenter with

the written statement of the third party that contained the comment. Id. at 1167-68.

Thereafter, defense counsel objected on the basis of hearsay. Id. at 1168. The trial

court sustained the objection, denied a motion for mistrial, and instructed the jury

that a question is not evidence. Id. The prosecutor did not present the third party

as a witness on rebuttal or attempt to establish that the third party made the

statement. Id.

The Fourth District rejected Carpenter’s assertion that the failure of the

prosecutor to prove the fact insinuated by the question demonstrated that the

prosecutor did not act in good faith. Id. at 1169. Instead, the district court

concluded that such a question is permissible where the trial court is satisfied the

prosecution has a good faith belief that the insinuated fact is true. Id. at 1167.

Further, the Fourth District noted that a respected legal treatise totally disagreed

with the rationale in Marrero v. State, 478 So. 2d 1155 (Fla. 3d DCA 1985), a

decision from which the majority quotes in support of its conclusion that the

private investigator question was inappropriate:

Recently, two District Courts of Appeal have apparently added a new requirement to the use of prior inconsistent statements. In Marrero v.

- 50 - State, it was held for the first time that if a witness denies making the prior inconsistent statement, counsel must prove that the prior statement was made. The court interpreted the requirement, that counsel have a good faith basis before a question could be asked which impeaches the credibility of a witness, as requiring the actual introduction of the statement. These opinions did not cite other authority nor do they logically flow from the “good faith requirement.” . . . The logical result of the Marrero decision is to limit any cross-examination regarding credibility to situations in which counsel has “a witness-room full of witnesses prepared to give back-up testimony. Such an approach would unduly inhibit impeachment by imposing overwhelming burdens, delays, and expenses on showing good faith.” Carpenter, 664 So. 2d at 1168-69 (quoting Charles W. Erhardt, Florida Evidence, §

608.4 (1995 ed.)). I would conclude that both Carpenter, and the legal treatise

upon which it relied, provide the more logical approach when a prosecutor asks an

insinuating question in good faith, i.e., it is admissible, and the introduction of

evidence to support the question is not required. Therefore, the trial court here

properly denied the motion for mistrial because the prosecutor possessed a good

faith basis to ask the private investigator question.

Additionally, even if the question had not been asked in good faith—which I

believe it was—any error was harmless. First, the hiring of a private investigator is

neither uncommon nor illegal. Contrary to the assertion of the majority, it does not

constitute evidence of premeditation to commit murder or that Evans entered

Beth’s home with the intent to commit a felony. Second, the jury heard Evans

refer to Beth’s companion as “Jerry” on the 911 call-back recording, despite his

- 51 - testimony that he did not know the name of the man Beth was seeing that night.

This evidence demonstrated that Evans had somehow acquired Jerry’s name prior

to the 911 call-back. Although one explanation is that Evans did in fact hire a

private investigator, other explanations were posited during closing statements. It

was for the jury to determine which scenario to believe with regard to how the

intruder knew Jerry’s name.

For the foregoing reasons, I would conclude that no reversible error

occurred, and I dissent from the decision of the majority to grant Evans a new trial.

Instead, I would affirm his convictions and sentences of death.

POLSTON, J., concurs.

CANADY, J., dissenting.

I agree with Justice Lewis’s dissent with one exception. On the issue

regarding the prosecutor’s questions to Evans about the hiring of a private

investigator, I would conclude that any error was harmless beyond a reasonable

doubt.

An Appeal from the Circuit Court in and for Pinellas County, Richard A. Luce, Judge - Case No. 522008CF026829AXXXNO

Howard L. Dimmig II, Public Defender, and Cynthia Jean Dodge, Assistant Public Defender, Tenth Judicial Circuit, Bartow, Florida,

for Appellant

- 52 - Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Christina Zuccaro, Assistant Attorney General, Tampa, Florida,

for Appellee

- 53 -