Travis R. Brown v. State of Florida

FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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No. 1D17-3453

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TRAVIS R. BROWN,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

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On appeal from the Circuit Court for Hamilton County.

David W. Fina, Judge.

August 22, 2019

PER CURIAM.

Indicted for first-degree murder, Travis Brown was convicted

of the lesser-included offense of second-degree murder and

sentenced to life imprisonment. On appeal, he argues that

evidence of a collateral crime was erroneously admitted, as well

as evidence that could negatively affect his counsel’s credibility.

Brown does not demonstrate error, so we affirm.

I. Facts

The State filed a notice of its intent to offer Williams 1 Rule

evidence of a shooting that occurred less than a month before the

murder. The notice stated that Brown had already been convicted

on five felony charges for shooting toward a vehicle in May 2015.

This evidence was relevant to the June 2015 murder because

experts concluded that the eight shell casings fired from Brown’s

gun in May were fired from the same gun as the bullets that

killed the victim. Because there were no eyewitnesses to the

murder, this evidence was particularly probative of the identity

of the killer. Brown’s motion in limine argued that evidence of

this prior crime would only be used to show a propensity for

criminal activity, was unfairly prejudicial, and could become a

feature of the trial.

At a pretrial hearing on the Williams Rule evidence, the

State noted that its eyewitness to the collateral-crime shooting

was unavailable, but the parties agreed to proceed and continue

the hearing only if the trial court could not make a sufficient

finding of the earlier crime. The State’s witnesses testified that

the eyewitness identified Brown as the shooter, that Brown was

known to carry a .45 caliber handgun, and that the shell casings

recovered from the May shooting and June murder were fired

from the same gun. The State then introduced, without objection,

Brown’s judgment and sentence following his guilty plea for the

felonies he committed in the collateral crime. The trial court

ruled that the Williams Rule evidence would be admissible,

finding that there was clear and convincing evidence that shell

casings from both shootings were fired from the same gun, Brown

entered a guilty plea to the collateral-crime shooting charges and

was identified as the shooter, the evidence was relevant for

identity purposes, and the probative value of the evidence

outweighed its prejudicial effect.

1 Williams v. State, 110 So. 2d 654 (Fla. 1959); see also

§ 90.404(2)(a), Fla. Stat. (allowing the admission of evidence “of

other crimes, wrongs, or acts” when “relevant to prove a material

fact in issue” such as “identity”).

2

Days before trial, Brown filed another motion in limine,

asserting that he had a pending motion to withdraw his guilty

plea in the collateral case, his guilty plea could no longer be used

in his murder trial, and without the guilty plea there was no

longer clear and convincing evidence to admit the Williams Rule

evidence. Brown’s attached post-sentencing motion to withdraw

plea 2 asserted, inter alia, that the State coerced him into

pleading guilty by offering him such a good deal that it overbore

his will, precluding him from thinking rationally and realizing

that his guilty plea would directly link him to a murder. The trial

court denied this second motion in limine, stating that it had

previously found clear and convincing evidence of the crime,

although the judgment and sentence would not be admitted into

evidence at trial.

At trial, witnesses testified that they found the victim shot

and dying on a road at approximately 4:30 a.m. and, just before

dying, he stated that he was shot by a man named “Slim” who

drove a dark Cadillac. Officers developed Brown, who goes by

“Slim,” as a suspect and found the victim’s debit card and

Brown’s DNA inside a dark Cadillac owned by Brown’s girlfriend

Kalandra Perry. A mutual friend testified that Brown routinely

sold drugs to the victim, who often owed Brown money, and

Brown sometimes would take the victim to the bank to withdraw

money. In the hours before the victim’s death, he was seen in an

ATM video with another individual attempting to withdraw

money, but was unsuccessful because a pending deposit had not

yet gone through. In the same time frame, approximately

seventeen phone calls were made from Brown’s phone to Wells

Fargo, and both Brown’s and the victim’s voices were identified

on these calls. Brown’s phone was tracked traveling in one

direction from 4:00-4:25 (minutes before the victim was found on

the road) before returning the way it came. Around the time of

death, several more calls were made from Brown’s phone to

Perry’s. After being brought to the police station, Brown was

recorded on a phone call telling someone that he had deleted the

2 See Fla. R. Crim. P. 3.170(l); Fla. R. App. P.

9.140(b)(2)(A)(ii)a.-e. (restricting the grounds a defendant may

assert to withdraw a guilty plea post-sentencing).

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contents of his phone and a subsequent search of the phone

showed that this was true. Lastly, the State presented the

Williams Rule evidence: the collateral eyewitness identified

Brown as the person she saw shooting at a vehicle in May and

experts testified that the gun used in May was the same gun that

killed the victim.

After the State rested, Brown called Perry to testify on his

behalf. Perry testified that Brown was in her bed the night of the

murder and that the shooter in the May incident was not Brown,

but Brown’s brother. On cross-examination, Perry conceded that

she had an interview with the State just weeks ago and had

stated that she did not know where Brown or her Cadillac were

at the time of the murder, and identified Brown as the shooter in

the May shooting. At trial, Perry stated that all of her recent

interview statements were lies and she only made them because

she felt she was being framed for murder, the prosecutors

threatened her, and she was mad at Brown for cheating on her.

Perry also invoked her Fifth Amendment right against self-

incrimination, told the trial court that she was being entrapped

with perjury, and warned the prosecutor that he was “play[ing] a

dangerous game” by cross-examining her about her inconsistent

statements.

The State called Ryan Nydam, who had recently interviewed

Perry, as a rebuttal witness and introduced the audio recording

of his interview. Brown’s counsel reviewed a transcript of the

interview and found a portion where Perry discussed a

conversation he had with her, and requested its redaction

because it could create an issue with him becoming a witness.

The trial court denied the request, finding nothing improper in

Perry’s statement and that it was relevant to show an

inconsistency with her trial testimony. Counsel then argued that

a portion pertaining to him could affect his credibility and the

jury might infer that he asked Perry to lie for Brown. The trial

court declined to require redaction, finding the statements

relevant and inconsistent with Perry’s testimony. During the

recorded interview, Perry stated that she had received a

handwritten letter from Brown asking her to tell his counsel that

he was with her the night of the murder, but the two were not

together that night nor the entire week. Perry became suspicious

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that Brown committed the murder because she did not know why

she needed to lie for him if he was innocent. Perry also said that

she witnessed Brown shooting his gun during the incident in

May. Regarding Brown’s counsel, Perry stated that he informed

her of the seventeen phone calls made from Brown’s phone to

Wells Fargo and repeatedly asked her if she was with Brown

when he made these calls, although she repeatedly said that she

was not. Nydam also testified that he interviewed Brown, who

“was all over the place” in explaining where he was the night of

the murder, giving Perry’s house as one of several locations.

Craig Riley, a special agent with the Florida Department of

Law Enforcement, testified that he interviewed Perry on two

occasions shortly after the murder. On both occasions, Perry

stated that she was at her mother’s house on the night and week

of the murder and not with Brown. Perry’s mother also testified

that her daughter spent the entire week of the murder with her

and Brown was not there.

Brown recalled Perry, who testified that she gave false

statements in her recorded interview because, just before it

began, a police officer, prosecutor, and investigator told her that

they would give her leniency in her own criminal cases if Brown

was convicted.

II. Analysis

Williams Rule Evidence

“[E]vidence of any facts relevant to a material fact in issue

except where the sole relevancy is character or propensity of the

accused is admissible unless precluded by some specific exception

or rule of exclusion.” Williams v. State, 110 So. 2d 654, 663 (Fla.

1959); see also § 90.404(2)(a), Fla. Stat. (codifying the Williams

Rule). Before allowing Williams Rule evidence, “the trial court

must find that the prior acts were proved by clear and convincing

evidence.” McLean v. State, 934 So. 2d 1248, 1262 (Fla. 2006); see

also Harrelson v. State, 146 So. 3d 171, 174-75 (Fla. 1st DCA

2014) (reversing after the trial court declined to make a finding

on clear and convincing evidence).

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At the Williams Rule hearing, the trial court found clear and

convincing evidence that Brown was the shooter in the May

incident and that this evidence would be admissible as it was

particularly probative of identity. Brown does not argue that this

finding was improper, the evidence was unfairly prejudicial, or

that the Williams Rule evidence became a feature of the trial.

Instead, Brown argues that the trial court erred in not

holding a second hearing on the Williams Rule evidence once he

informed the court that he had a pending motion to withdraw his

plea in the collateral case. Because the trial court did not do this,

he argues, the remaining evidence—excluding the judgment and

sentence—such as the hearsay evidence of the eyewitness and

testimony of officers and experts, was not legally sufficient to

admit the evidence. Brown’s argument is premised on the belief

that the trial court could not legally consider the judgment and

sentence in the collateral case merely because he filed a motion to

withdraw his guilty plea. Brown asserts this argument in a

conclusory fashion without providing any legal basis and

presumably requesting that we create such a rule. We decline to

do so. 3

Redaction of the Alibi Witness’s Interview

Brown claims error as to two portions of Perry’s recorded

interview, used to impeach her testimony on his behalf, that the

trial court refused to redact. The trial court found that both

statements were admissible and inconsistent with Perry’s trial

testimony. See § 90.608, Fla. Stat. (“Any party . . . may attack the

3 See Goodwin v. State, 751 So. 2d 537, 544 (Fla. 1999)

(“[T]he defendant bears the burden of demonstrating that an

error occurred in the trial court, which was preserved by proper

objection.”); § 924.051(7), Fla. Stat. (“[T]he party challenging the

judgment or order of the trial court has the burden of

demonstrating that a prejudicial error occurred in the trial

court.”).

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credibility of a witness by: (1) Introducing statements of the

witness which are inconsistent with the witness’s present

testimony. . . .”). A trial court’s ruling on whether to redact

certain disputed statements from a recorded interview is

reviewed for abuse of discretion. See Jackson v. State, 18 So. 3d

1016, 1032 (Fla. 2009).

In the first statement, Perry expressed her suspicion of

Brown after Brown’s counsel informed her of the phone calls

Brown made and his location the night of the murder:

[Nydam]: Did you have anything to make you

believe that [Brown did it] or is it just because of his

words?

[Perry]: Just because of what he said. Because the

reason why is because when his lawyer came and said,

he told me, he said your cell phone pings or however

y’all do it to find a person’s cell phone. He said it was

coming in Hamilton County area around that time so if

you tell me to say that I went to Ham[ilton] Co[unty]

late midnight, if you didn’t do this, why is your cell

phone supposedly coming 17 times going to Wells Fargo

bank where the guy banked at. So I just been thinking

about all that stuff. And a lot of stuff I didn’t know until

[Brown’s counsel] came up here.

We find no issue in the fact that Perry revealed that she had

spoken to her boyfriend’s counsel about her case, do not find that

he became a secondhand “witness,” and note that all evidence

discussed (Brown’s location and calls to Wells Fargo) was already

admitted into evidence. We similarly reject Brown’s argument

that the trial court erred in admitting Perry’s opinions regarding

Brown’s possible guilt, see Martinez v. State, 761 So. 2d 1074,

1079 (Fla. 2000) (“[A] witness’s opinion as to the guilt or

innocence of the accused is not admissible.”), as these statements

were made by his own alibi witness and were appropriate for

impeachment.

In the second statement, Perry reflected on Brown asking

her to provide an alibi in his letter and her conversation with

Brown’s counsel about the alibi Brown had professed:

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Sounded like to me he done convinced his lawyer to

believe that, too, because when his lawyer came to talk

to me, he kept saying, so you wasn’t there when he was

on the phone? I said, no, sir. No, sir. Are you sure? I

said, yes, sir, I am sure. He asked me over and he asked

me over and he asked me over. So, obviously, whatever

story Travis is telling his lawyer is what he is trying to

get me to say but his lawyer didn't want to say it out

front. He wanted me to come out and say it and I wasn’t

going for that.

Brown’s brief argument on appeal asserts that it is

impermissible to challenge the credibility or character of a

defense attorney. Brown cites only cases concerning a

prosecutor’s improper remarks about a defense attorney, 4

although the remarks here were made by his girlfriend and alibi

witness. Brown was fully aware of Perry’s interview before trial

and, if he still decided to call her to testify, the State was

permitted to impeach her credibility. We find that the trial court

did not abuse its discretion in permitting Perry’s statement that

squarely contradicts her trial testimony.

III. Conclusion

Despite a lack of any eyewitnesses, the State provided ample

evidence incriminating Brown in the murder. Williams Rule

evidence was ruled admissible and would be critical evidence of

the killer’s identity, and Brown’s motion to withdraw his plea in

his collateral case did not require a second pretrial hearing.

Brown’s only defense witness provided an alibi, but was

extensively and permissibly impeached by the State without trial

court error. We affirm Brown’s judgment and sentence.

AFFIRMED.

RAY, C.J., and B.L. THOMAS and WINOKUR, JJ., concur.

4 E.g., Merck v. State, 975 So. 2d 1054, 1064 (Fla. 2007);

Mora v. State, 211 So. 3d 308, 309 (Fla. 3d DCA 2017); Redish v.

State, 525 So. 2d 928, 931 (Fla. 1st DCA 1988).

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Not final until disposition of any timely and

authorized motion under Fla. R. App. P. 9.330 or

9.331.

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Joseph S. Hamrick, Rick A. Sichta, and Susanne K. Sichta, The

Sichta Firm, LLC, Jacksonville, for Appellant.

Ashley Moody, Attorney General, and Sharon S. Traxler,

Assistant Attorney General, Tallahassee, for Appellee.

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