Roussonicolos v. State

59 So. 3d 238, 2011 Fla. App. LEXIS 4340, 2011 WL 1135347
CourtDistrict Court of Appeal of Florida
DecidedMarch 30, 2011
DocketNo. 4D09-3449
StatusPublished
Cited by3 cases

This text of 59 So. 3d 238 (Roussonicolos 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
Roussonicolos v. State, 59 So. 3d 238, 2011 Fla. App. LEXIS 4340, 2011 WL 1135347 (Fla. Ct. App. 2011).

Opinion

DAMOORGIAN, J.

Appellant, Peter Roussonicolos, appeals his judgment and sentence for organized scheme to defraud. Roussonicolos raises a number of points on appeal in connection with the trial court’s rulings on evidentiary matters. One of the issues raised is whether the trial court incorrectly ruled that Roussonicolos’ co-defendant’s prior testimony exonerating Roussonicolos was inadmissible. We hold that the trial court reversibly erred in ruling that the prior testimony was inadmissible and remand for a new trial. We find no merit to Roussonicolos’ other points on appeal.

Roussonicolos and his co-defendant, Seamus Limato, worked together in Rous-sonicolos’ business. At some point during their business relationship, Roussonicolos and Limato were charged with organized scheme to defraud over $20,000. The essence of the State’s case was that Rous-sonicolos and Limato were writing bad checks to themselves and each other, depositing them, and then withdrawing the funds before the payee bank discovered that the checks had been drawn on accounts that had insufficient funds. The trial was severed, and Roussonicolos’ theory of defense was that Limato acted alone, and without Roussonicolos’ knowledge or consent.

In support of his defense, Roussonicolos attempted to introduce a transcript of his bond hearing containing Limato’s sworn testimony.1 According to Limato, he was serving as a middle man selling products for Roussonicolos’ business. Limato would arrange sales, and then purchase products from Roussonicolos to fill the orders. Roussonicolos, in turn, would pay commissions to Limato. Limato had written a number of bad checks to Roussonicolos, on the belief that his customers’ checks, which he deposited into his own account, were good. Roussonicolos had thereafter written checks to Limato for commissions earned on the sales and for consulting work. However, because Limato’s checks to Roussonicolos were bad, Roussonicolos had no money in his account to cover his checks to Limato. As a result, both Lima-to’s and Roussonicolos’ accounts had large deficiencies. Most importantly, Limato admitted that he was solely responsible for the bad checks and that Roussonicolos was unaware that the checks were drawn on accounts with insufficient funds.

By the time Roussonicolos went to trial, Limato had invoked his Fifth Amendment right against self-incrimination and was unavailable to testify. When Roussonico-los attempted to introduce the transcript of Limato’s testimony, the State objected on hearsay grounds. Roussonicolos responded that Limato’s testimony fell with[240]*240in the former testimony exception to the hearsay rule. The State countered that the prosecutor at the VOP status hearing had not had a full opportunity to cross-examine Limato. The trial court sustained the objection, in part relying upon the mistaken belief that the charges against Roussonicolos had not been filed at the time of the hearing.2

The standard of review of a trial court’s ruling on the admission of evidence is abuse of discretion. However, the court’s exercise of its discretion is limited by the rules of evidence. Hudson v. State, 992 So.2d 96, 107 (Fla.2008).

Section 90.804(2)(a), Florida Statutes (2007) provides that so long as the declarant is unavailable to testify, his/her testimony will not be excluded if it is:

(a) Former testimony. — Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.

It is undisputed that by invoking his Fifth Amendment right against self-incrimination, Limato was unavailable to testify. Henyard v. State, 992 So.2d 120, 126 n. 3 (Fla.2008). We therefore turn to whether the State had an opportunity and similar motive to develop Limato’s testimony on cross examination.

In Garcia v. State, 816 So.2d 554 (Fla.2002), the Supreme Court applied the “similar motive” test where the defendant sought to introduce the prior testimony of his co-defendant who was unavailable to testify at the defendant’s own trial. Garcia and his co-defendant, who were charged with murder, had their trials severed. Id. at 557 n. 2. The co-defendant was tried first, and he provided testimony at his own trial that tended to exonerate Garcia. Id. at 557. However, he invoked his Fifth Amendment right during Garcia’s trial and refused to testify. Id. at 564. Garcia attempted to admit the transcript of his co-defendant’s testimony, but the trial court denied the request. Id. On appeal, the Supreme Court reversed the trial court concluding that under the statute, an “identical” motive was not required, but merely a “similar” one. Id. The court considered the State’s motive at both trials to be similar. In both instances, the motive was “to discredit [the witness’s] testimony and show it to be not worthy of belief.” Id. at 565. The court went on to say

[m]oreover, the failure to allow the jury to hear this testimony deprived the jury of important additional evidence that could have been critical to assessing Garcia’s guilt. Indeed, where Garcia’s alleged involvement in the crimes hangs on the testimony of one individual-Rib-era-the jury was entitled to consider the testimony of the [co-defendant], who took the stand in his own trial and specifically testified that Garcia was not involved in these murders. In this case, to prevent the jury from, hearing the prior recorded testimony of [the co-defendant], which the State subjected to cross-examination, is to apply the hearsay rule “mechanistically to defeat the ends of justice.” For all these reasons, the exclusion of [co-defendant’s] prior sworn testimony constituted error, [241]*241which ... was not harmless beyond a reasonable doubt.

Id. at 555-56 (citation omitted).

The State argues that Limato’s former testimony should be inadmissible because the scope of inquiry conducted at the bond hearing bore little resemblance to scope of the examination at trial.3 In support of its argument, the State relies on Nazworth v. State, 352 So.2d 916 (Fla. 1st DCA 1977).

In Nazworth, the court determined that previous testimony against a defendant was not admissible because it had been secured through threats, and because it was given at a bond hearing. The court went on to say that “[t]he extensive redirect of [the witness] by the state after the limited cross-examination by [defendant’s] counsel did not afford defendant an opportunity for proper cross that would have been available had [the witness] testified at trial.” Id. at 918. The State argues that it likewise lacked “an opportunity for proper cross that would have been available had [the witness] testified at trial.” We reject the application of Naz-worth to this case.

We do not read Section 90.804(2)(a) to require that, in order for prior testimony to be admitted as an exception to the hearsay rule, the opponent of the evidence must have the same motivation to examine the witness in both the prior proceeding and the one in which the prior testimony was being introduced.

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Cite This Page — Counsel Stack

Bluebook (online)
59 So. 3d 238, 2011 Fla. App. LEXIS 4340, 2011 WL 1135347, Counsel Stack Legal Research, https://law.counselstack.com/opinion/roussonicolos-v-state-fladistctapp-2011.