Tindal v. State

803 So. 2d 806, 2001 WL 1613820
CourtDistrict Court of Appeal of Florida
DecidedDecember 19, 2001
Docket4D00-2874
StatusPublished
Cited by11 cases

This text of 803 So. 2d 806 (Tindal 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
Tindal v. State, 803 So. 2d 806, 2001 WL 1613820 (Fla. Ct. App. 2001).

Opinion

803 So.2d 806 (2001)

Cameron TINDAL, Appellant,
v.
STATE of Florida, Appellee.

No. 4D00-2874.

District Court of Appeal of Florida, Fourth District.

December 19, 2001.
Rehearing Denied January 16, 2002.

Carey Haughwout, Public Defender, and Susan D. Cline, Assistant Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Bart Schneider, Assistant Attorney General, West Palm Beach, for appellee.

WARNER, J.

This case involves appellant's highly contentious trial for first degree murder. Appellant complains that he was denied *807 a fair trial by the prosecutor's highly improper closing argument which included comments on facts not in evidence suggesting that a non-testifying witness made out of court statements exonerating appellant due to threats. We agree that the prosecutor's comments were so egregious and prejudicial as to require a new trial.

A grand jury indicted Cameron Tindal, appellant, and Randy Garland, the co-defendant, for committing the first degree murder of Marvin Mack, the victim. After their first trial resulted in a hung jury, the case proceeded to a second jury trial, which developed the following facts.

On December 27, 1998, an altercation occurred at a store near Lennox Apartments involving Michael Young. Someone shot at Michael Young and other people sprayed Young's brother, Tavares, with mace. Michael Young is Garland's cousin, and both men are nephews of Tony Hayes. The next day Hayes, appellant, and Garland drove together to the Lennox Apartments. Appellant and Garland went up to the store where the fight had occurred the previous night. Hayes testified that he went down the street.

Meanwhile, the victim Mack was sitting on a wall near the store with longtime friend, Aaron Robinson. Robinson, a three time convicted felon, testified that appellant and Garland, both wearing dark jackets, walked towards them. Appellant pulled out a gun, pointed it at the victim and Robinson, and shot. Robinson fell off the wall and ran away, hearing two or three more shots. Returning to the scene fifteen minutes later, Robinson found the victim dead.

Hayes, still down the street, heard gunshots and saw the victim running away from the store, followed by Garland and appellant. The victim fell to the ground, and according to Hayes, appellant shot the victim twice. Appellant and Garland then ran away, even though Garland had the keys to Hayes' car. Hayes also testified that he received a series of cell phone calls about fifteen minutes later from appellant and Garland asking whether the victim died. When Hayes found out that the victim was dead and informed appellant and Garland, they told him they were leaving town.

After hearing the gunshots, John Hope, a resident of Lennox Apartments, observed appellant and Garland walking through a path toward him. They asked him for a ride, as Hope frequently gave rides to make additional money. Hope agreed, and they left in Hope's car. During the ride, Hope heard appellant say "[w]e just had to shoot the fool." Hope also saw appellant and Garland pass a gun between them.

Back at the crime scene, Officer Paul Ostrikis was the first officer to arrive. He gathered information from individuals, including Diane Wilsure. In his report, he wrote that she identified Hayes as the gunman. The officer provided his report to lead detectives Walley and Stone.

The lead detectives took sworn statements from Hayes and Michael Young on the evening of the murder. They also ordered gunshot residue swabs of both men. The detectives stated that they ordered them as part of a thorough investigation, even though they said that Hayes was not a suspect. In his statement to police, Hayes named Randy Gardner and Justin Carver as the culprits and stated Carver was dressed all in white that night. Hayes explained at trial that Justin Carver is appellant. Even though Hayes knew both appellant and Garland well, he never called them by their correct names during the statement. Hayes also never told the police about the phone calls he received from them that night.

A couple of days after the shooting, Hope came forward and spoke to the police *808 because he heard that he might be a suspect. His statement to the police was consistent with his trial testimony recited above. About a month after the murder, the police approached Robinson, and his statement also was similar to his trial testimony, identifying appellant and Garland as the culprits. He explained that he did not talk to the police before because he was afraid.

The prosecution's case consisted of testimony from Hayes, Hope, and Robinson, together with the medical examiner, crime scene technicians, and a gun expert. The prosecutor did not call any of the investigating officers. They were called by the defense, including Walley and Ostrikis. The purpose of calling the officer and detective was to attack the thoroughness of their investigation, particularly the fact that Officer Ostrikis had a witness who had identified Hayes as the shooter even though Detective Walley testified that no one ever pointed to Hayes as a suspect.

During his initial closing, the prosecutor argued the following, without objection:

He [Officer Ostrikis] talks to four people. Puts them down in his report. And you find out through the testimony, through cross examination and direct, he finds out from one witness a person named Tony was involved. He writes that in his report. He doesn't know who this person is. He didn't take a sworn taped statement from them. He can't spend a lot of time with this person. He doesn't know why that person is saying it. And you shouldn't speculate. That person didn't testify, you don't know whether that person was intimidated or in fear when she said that, whether she had a gun pointed at her. You can't speculate. You don't know.

Later, he argued:

But immediately after collecting it [gunshot residue swabs], almost immediately, their sworn statements started coming in, those sworn statements and those photographic lineups, and they [the detectives] learn very quickly after that point who did this killing. They learn very quickly from the physical evidence and the testimonial evidence that Garland and Tindal, they shot a human being dead with a gun. They were responsible. They didn't just close up shop though, when they knew that. They continued doing their job day after day on this case. Even to a month later taking sworn statements from witnesses. Tracking them down. Taking those statements. They knew early on who did this crime, but that didn't stop them. They continued doing their job.
You heard throughout this whole trial about this gunshot residue test. And you heard from Walley why they didn't send it up. He told you "They're just not reliable and we already knew we had the people who committed this crime. There was not a shred of evidence otherwise."
This fantom person who is alive, a real person who talked to Officer Ostrikis, who said something to Officer Ostrikis about Tony, that person didn't testify here. The defense subpoenaed in three witnesses. Officer Ostrikis and two detectives. You all agreed that you wouldn't speculate. You wouldn't come up with possibilities. You would base your decision of following the law on the evidence that comes in this trial. In this trial.
Detective Walley told you they got a hold of the woman who spoke to Officer Ostrikis. And they took a sworn statement from her. And they knew exactly what she had to say and why she had to say what she did before.

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Cite This Page — Counsel Stack

Bluebook (online)
803 So. 2d 806, 2001 WL 1613820, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tindal-v-state-fladistctapp-2001.