The opinion
DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
CHARLIE WYNE,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D13-1940
[July 29, 2015]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Richard Oftedal, Judge; L.T. Case No. 2008CF004603BXX.
Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant
Public Defender, West Palm Beach, for appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Allen R. Geesey,
Assistant Attorney General, West Palm Beach, for appellee.
WARNER, J.
Charlie Wyne appeals from three convictions for first degree murder
with a firearm and four convictions for attempted first degree murder with
a firearm, for which he was sentenced to seven consecutive life terms. He
claims that the trial court erred in denying his motion to suppress his
statement made to authorities, while he was being detained on unrelated
federal charges. He reasons that the attorney representing him on the
federal charges should not have allowed him to speak with authorities
without immunity. We conclude that the court did not err, as appellant’s
statement was made voluntarily and with knowledge that no immunity
would be conveyed. It was also not ineffective assistance of counsel,
because the Sixth Amendment is offense specific, and, at the time of the
statement, his federal attorney was not representing him in connection
with these uncharged offenses. He also challenges several evidentiary
rulings—specifically use of a prior consistent statement, admission of an
excited utterance, and use of an out-of-court self-identification
statement—none of which were error and, even if error, were harmless.
Finally, he contends that the court failed to afford him the opportunity to
represent himself after he sought discharge of his attorney. Because he
asked for substitute counsel, and not self-representation, we conclude
that no error occurred. We thus affirm.
This case involves what the state contended was a murder-for-hire
scheme, in which appellant was paid $5,000, by a man with the street
name of “Bam,” to kill several men as a revenge killing for the murder of
Bam’s cousins. On the date of the murders, two or three men got out of a
car and opened fire on a group of men who were playing dominoes and
gambling in a backyard. Three men were killed. Four men were wounded.
According to the state, the men participating in the murders were
appellant, Jarvis Jackson, Patrick Thompkins and Linwood Lewis. During
the melee, one of the shooters, Patrick Thompkins, was himself shot and
was taken by appellant and Lewis to a hospital a few minutes after the
shooting. After taking Thompkins to the hospital, appellant and Lewis left.
A stolen vehicle was abandoned about a quarter of a mile from the hospital.
Police recovered a ski mask in the car with DNA on it, the majority of which
matched appellant’s DNA. In the police investigation which followed, it
was discovered that appellant took a gun to his cousin’s home where police
ultimately retrieved it. The gun was test fired by police, and the bullets
matched the bullet casings found at the scene of the shooting.
Several months later, appellant, who was in a federal detention facility
on unrelated charges, asked to speak with the police investigating the
murders. Appellant, who was not under arrest on any charges relating to
the homicide investigation, was interviewed by police with his attorney
present and, according to the state, he confessed that Bam had given him
$5,000 to do the hit. After an extensive and lengthy trial, at which multiple
eyewitnesses to the crimes testified and the state introduced appellant’s
statements, the jury convicted appellant of all three murders and all four
attempted murders. He was sentenced to seven consecutive life sentences.
He now appeals.
Appellant first contends that the trial court erred in denying the
suppression of the statements he made to the investigating detective while
he was being detained on federal charges and before any charges being
filed against him in this case. He argues that his attorney was ineffective,
on the face of the record, for having allowed him to make a statement in
the hopes of obtaining leniency on the federal charges without first
obtaining immunity for him. However, as the trial court noted, a claim of
ineffective assistance of counsel derives from the Sixth Amendment to the
Constitution. See Strickland v. Washington, 466 U.S. 668, 683 (1984).
“[T]he Sixth Amendment right to the assistance of counsel is ‘offense
specific’ and applies only to the offense or offenses with which the
defendant has actually been charged, and not to any other offense he may
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have committed but with which he has not been charged.” Scott v. State,
66 So. 3d 923, 933 (Fla. 2011) (quoting Ibar v. State, 938 So. 2d 451, 470
(Fla. 2006)). Because he had not been charged with these offenses at the
time of the statement for which he sought suppression, he cannot claim
ineffective assistance of counsel. His federal attorney was not representing
him in connection with the charges in this case.
Appellant claimed in his motion to suppress that his confession was
not voluntary, and was caused by government trickery, under the guise
that his statement would be immunized. After a full evidentiary hearing,
the trial court found as a factual matter that this was simply untrue, and
that his statement was voluntary. At the time of the statement appellant
was in federal custody and had called the detective in charge of the murder
investigation, wanting to speak with him. The detective told appellant that
an Assistant U.S. Attorney and appellant’s federal counsel would have to
be present.
A meeting was then set, where appellant, his federal counsel, an
Assistant U.S. Attorney, and two detectives were present. Appellant had
not been arrested for any charges connected with the murders. His
attorney thought he might be a person of interest but was not a suspect.
Appellant would not talk to his attorney about what he intended to say to
the murder investigator.
The participants discussed a proffer letter which would provide him
immunity from non-violent crimes, but the Assistant U.S. Attorney told
appellant directly that he would not obtain immunity for any crimes of
violence. The appellant refused to sign the proffer agreement but went
ahead and spoke to the detective with his attorney and the Assistant U.S.
Attorney present. As the trial court found,
Further, no threats were made, no promises were made, and
no deals were discussed. The Defendant chose to make
statements to law enforcement regarding his involvement in
certain crimes which involved violence. During this
statement, the Defendant freely and voluntarily made a
statement implicating him in the alleged crimes which formed
the basis for the charges in this case. These statements were
made prior to the Defendant being charged in the instant case.
The court concluded:
It is clear that in this case, the Defendant was informed at the
outset, not only by [the Assistant U.S. Attorney] but also by
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[appellant’s counsel], that he would not receive immunity for
crimes which involved violence. No promises were made
which would have induced the Defendant to make statements,
or which would constitute impermissible quid pro quo as is
necessary in order to establish that a confession is
involuntary under Florida law.
Under a totality of the circumstances test, the trial court clearly did not
err in denying the motion to suppress the confession as involuntary.
Traylor v. State, 596 So. 2d 957, 964 (Fla. 1992) (a reviewing Court must
look to the totality of the circumstances to determine whether a confession
was the product of free and rational choice rather than unrealistic hope
and deluded notions of one’s true position in a given case based on an
officer’s conduct).
During the trial of the case, appellant’s counsel made several
evidentiary objections, which are raised on appeal, but we conclude the
trial court correctly overruled the objections. He first objected to the
state’s eliciting, on rebuttal, a prior consistent statement from the
investigating detective. On direct, the detective had claimed that in
appellant’s statement to the detective, appellant had said, “I did it.” The
defense attacked this on cross-examination noting that it was not in the
detective’s report of the conversation. On rebuttal, the state sought to offer
similar testimony that the detective gave in his deposition, taken after the
report but years before the trial, to show that his trial testimony was not
a recent fabrication. We conclude, as did the trial court, that the
statement was proper pursuant to section 90.801(2), Florida Statutes
(2013), which provides:
(2) A statement is not hearsay if the declarant testifies at the
trial or hearing and is subject to cross-examination
concerning the statement and the statement is:
***
b) Consistent with the declarant’s testimony and is
offered to rebut an express or implied charge against the
declarant of improper influence, motive, or recent
fabrication[.]
(Emphasis supplied.) The detective testified at trial and was subject to
cross-examination, and a reasonable inference from the defense’s cross-
examination of the detective was that his trial testimony was the first time
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the detective “remembered” that the defendant had said “I did it,” referring
to the murders, and thus was a recent fabrication.
This case is unlike Peterson v. State, 874 So. 2d 14, 17 (Fla. 4th DCA
2004), on which appellant relies. There, our court found that a law
enforcement officer could not testify to a witness’s prior consistent
statement, because we concluded that the defense had not attacked the
witness’s statement at trial as a recent fabrication. Here, the trial court
found that the cross-examination inferred that the detective’s testimony
was recently fabricated for trial. Both prongs of the rule having been
satisfied in this case, the court did not abuse its discretion in allowing the
rebuttal evidence.
As to appellant’s claim that a statement to a testifying officer by an
unknown male at the scene of the shooting should not have been admitted
as an excited utterance, we also conclude that the trial court did not abuse
its discretion in admitting it. An excited utterance is “[a] statement or
excited utterance relating to a startling event or condition made while the
declarant was under the stress of excitement caused by the event or
condition.” § 90.803(2), Fla. Stat. (2013). The officer who testified to the
excited utterance was the first officer on the scene of the murders, within
about fifteen minutes of the shootings. The officer told the jury: “[I]t was
pretty chaotic; people screaming, bodies on the ground, every direction,
everywhere, I looked, people running. It was just chaos.” Others on the
scene who were not victims were “panicked, running around, lots of
screaming, crying[.]” She testified that when she first exited her vehicle, a
male came running up to her, panicked and excited, speaking rapidly.
When she asked him what happened, he told her “that he saw three or
four black males with black T-shirts over their face and that was it. And
they left in a black Intrepid, in an unknown direction.”
Appellant asserts that the statement of the unknown witness could not
be an excited utterance, because it was made after the event, when the
witness had had the opportunity for reflective thought, in response to a
police investigation, and there was no showing that the unknown witness
was excited. Because there was evidence that the statement was made
very shortly after the shooting when the scene was still in a state of “chaos”
and the officer described the witness as panicked and nervous, appellant’s
claims that the statements were reflective and not based upon excitement
at seeing a startling event are unfounded. He also contends that the
statement was made during a police investigation, because the officer
asked him “what happened.” The fact that an officer says “what happened”
when arriving freshly on the scene of an unfolding crime does not in all
cases convert the interaction, and statements uttered immediately
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thereafter, into ones which lack the indicia of an excited utterance. See,
e.g., Hayward v. State, 24 So. 3d 17, 29-30 (Fla. 2009). Where the
declarant is still under the stress of an exciting event (Who can say that
witnessing three people murdered and four other people shot is not a
stressful event?), a statement can qualify as an excited utterance. Id.
Moreover, the admission of the statement was harmless beyond a
reasonable doubt, because another witness testified at trial to essentially
the same information. State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986).
In his last claim of evidentiary error, appellant contends that the court
erred in admitting the self-identification of his co-conspirators at the
hospital where Patrick Thompkins was taken after the melee during which
he was shot. The police officer on duty at the hospital when the men came
into the emergency room testified that two men, one of whom was
appellant, brought a man with a gunshot wound into the hospital. Over
objection, the court allowed the officer to testify that the wounded man
identified himself as “Patrick Thompkins” and the second man identified
himself as “Linwood Lewis.” Appellant argues that this self-identification
was inadmissible. The court did not abuse its discretion, as the
statements by co-conspirators could be considered an admission under
section 90.803(18)(e), Florida Statutes (2013). See Leigh v. State, 967 So.
2d 1102, 1104 (Fla. 4th DCA 2007). In any case, any error would have
been harmless because appellant admitted in his statement to police that
he and Linwood Lewis had taken Patrick Thompkins to the hospital.
Finally, appellant contends that the court erred in failing to offer him
the right to self-representation when he moved to discharge his trial
counsel. This issue has no merit. In State v. Craft, 685 So. 2d 1292, 1295
(Fla. 1996), the supreme court held that a trial court has no duty to inform
a defendant of a right to self-representation where the defendant has not
expressed a desire to represent himself. Here, the trial court asked
appellant, “[A]re you asking to represent yourself in this case or are you
going to be asking the Court to appoint a court appointed lawyer to
represent you[?]” Appellant unequivocally responded, “I’m going to need
representation due to my lack of knowledge of law.” The court committed
no error.
Finding no error, we affirm the appellant’s convictions and sentences.
GROSS and FORST, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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