NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
RUBIN J. BROOKS, JR., )
)
Appellant, )
)
v. ) Case No. 2D16-2105
)
STATE OF FLORIDA, )
)
Appellee. )
)
Opinion filed May 16, 2018.
Appeal from the Circuit Court for
Hillsborough County; William Fuente,
Judge.
Howard L. Dimmig, Public Defender and
Steven G. Mason, Special Assistant Public
Defender, Bartow, for Appellant.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Kiersten E. Jensen,
Assistant Attorney General, Tampa,
for Appellee.
LUCAS, Judge.
Faye Kitchen and Shannon Thomas (a/k/a "Funko") were found dead
inside Ms. Kitchen's home in the early evening hours of November 12, 2011. Police
detectives investigating the scene suspected they had likely been beaten to death, and
the ensuing investigation would reveal a trail of evidence that appeared to implicate
Rubin Brooks. In addition to that evidence, the State called a former cellmate of Mr.
Brooks who recounted Mr. Brooks offering a late night, confessional prayer about the
two victims. Because the circuit court deprived Mr. Brooks of the opportunity to
impeach that former cellmate's testimony, we must reverse the final judgments and
convictions of first-degree murder and remand this case for a new trial.
Mr. Brooks and Funko had a history of drug transactions with one another
in Plant City, the latter selling the former crack cocaine on some occasions, while on
other occasions, Mr. Brooks would act as a middleman for Funko. But the two had
something of a falling out when Funko put a gun to Mr. Brooks' mouth in what may have
been a dispute over money.
A few days later, however, in the predawn hours of November 12, 2011,
the two men were together again, taking part in an extended sale of crack cocaine to a
third party in a mobile home in Plant City. Having sold all they could, at around 5:30
a.m., they were dropped off at Ms. Kitchen's house in Plant City to make more crack.
This was the last time Funko was seen alive. A medical examiner determined that
Funko and Ms. Kitchen were likely killed in their sleep inside Ms. Kitchen's home; it was
later stipulated that both victims died on November 12, 2011.
A little after 7:30 a.m. that same day, one of Ms. Kitchen's neighbors
recalled speaking with Mr. Brooks (Mr. Brooks had helped himself to a bottle of the
neighbor's lighter fluid); and shortly after that, Mr. Brooks was seen walking away from a
smoking barrel in a neighboring yard. The same witness from whom Mr. Brooks had
borrowed lighter fluid recalled Mr. Brooks later approaching him and saying, "Funko
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pulled a gun on me and I was scared but I'm not scared anymore." Another witness, a
longtime friend of Mr. Brooks, would also testify that on the morning of November 12,
Mr. Brooks was acting "hysterical" and that Mr. Brooks had stated that he and Funko
had "had a little confrontation."
Inside the aforementioned barrel, investigators would find a red sweater
and blood-stained black pants, a broken knife handle, two dumbbell handles, and a
piece of lumber. A witness remembered seeing Mr. Brooks wearing the same sweater
on the night of November 11. When tested, it was determined that the sweater
contained Funko's DNA and a partial profile that included Mr. Brooks' DNA. As to the
knife handle, Funko's body was found with a partial knife blade in his chest; a Florida
Department of Law Enforcement crime laboratory analyst conducted a fracture match
analysis and concluded that the two parts—the blade and the handle—were at one time
a single piece. The two dumbbell handles in the barrel were shaped in such a way that
appeared to resemble the head wounds found on Funko's and Ms. Kitchen's bodies.1
The State charged Mr. Brooks with two counts of first-degree murder. On
the third day of his jury trial, after having presented the aforementioned evidence, the
State called Edward Thomas as a witness. Mr. Thomas was a former cellmate of Mr.
Brooks while Mr. Brooks was in custody awaiting trial. Mr. Thomas testified that late
one night, while they were bunked together, he overheard Mr. Brooks praying aloud and
apologizing to God for what had happened to Ms. Kitchen. Mr. Thomas, apparently
1However, neither the dumbbell handles nor the knife handle were tested
for fingerprints.
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awoken by Mr. Brooks' praying, engaged in a conversation with Mr. Brooks about the
subject of his prayer, which he recounted to the jury:
And he [Mr. Brooks] said Funko did some fucked up shit
and, you know I went to — every time I asked him a question
he would just you know go at his own pace, you know, so I
just let him have the floor . . . and then he said Funko had
pulled a gun on him in front of some guys.
....
Q. Did he ultimately say what he did to Funko?
A. Oh, yes, ma'am.
Q. What did he say?
A. He said he killed Funko.
Q. Did he say anything about anybody else, a lady?
A. Yes, ma'am.
Q. What did he say?
A. Well, he was just basically saying — well, in a prayer I
heard him say in the prayer, you know.
Q. Well, tell us what he said in the prayer?
A. He was like he was sorry for what happened to the
lady because she didn't deserve it you know. Like basically I
felt like he was remorseful what happened with the lady but
he wasn't remorseful what happened with Funko.
After Mr. Thomas finished testifying, however, Mr. Brooks' counsel learned
of another witness, Shawn Keene, who claimed to have some information of his own—
about the State's witness, Mr. Thomas. Through a proffer, Mr. Keene testified that he
and Mr. Thomas were also former cellmates. And Mr. Keene recalled Mr. Thomas
telling him that a member of one of the victims' families had offered Mr. Thomas $2000
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to testify that Mr. Brooks committed the murder. Mr. Brooks sought to recall Mr.
Thomas to inquire about any offers of money to testify against Mr. Brooks and to
present Shawn Keene's testimony to impeach Mr. Thomas.2 The circuit court, however,
ruled that the testimony was inadmissible. With respect to recalling Mr. Thomas, the
court reasoned that an attorney cannot call a witness solely for the sake of impeaching
him; as to Mr. Keene, the court determined that his testimony was hearsay and the
declarant was not unavailable to testify, that it went beyond the scope of testimony
elicited from Mr. Thomas, and that the testimony was not a statement against penal
interest.
The jury found Mr. Brooks guilty on both counts of first-degree murder,
after which Mr. Brooks filed a motion for new trial. In its order, the circuit court
acknowledged it had mistakenly excluded Mr. Keene's testimony but nevertheless
denied the motion, concluding that Mr. Brooks was not prejudiced by the error because
of the overwhelming evidence presented of Mr. Brooks' guilt. In our view, the circuit
court correctly identified its error but wrongly concluded that that error was harmless.
First, the excluded examinations at issue here—both Mr. Keene's and Mr.
Thomas's—were indeed admissible and should have been allowed. See, e.g., Musson
v. State, 184 So. 3d 575, 578, n.4 (Fla. 2d DCA 2016) (explaining that "the hostility of a
witness towards a party against whom he is called may be proved by any competent
2Duringthe proffer, Mr. Thomas testified that he knew Shawn Keene and
that they were housed in the same dorm during one of Mr. Thomas's incarcerations.
Mr. Thomas portrayed Mr. Keene as being eager to discuss Mr. Brooks' case but that
he always brushed off Mr. Keene because he knew Mr. Keene and Mr. Brooks were
friends. Mr. Thomas also denied that anyone from the Kitchen or Thomas families
approached him regarding his testimony or ever offered him any money to testify
against Mr. Brooks.
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evidence . . . [including] the testimony of other witnesses" (alterations in original)
(quoting Jones v. State, 678 So. 2d 890, 893 (Fla. 4th DCA 1996))); McCoy v. State,
580 So. 2d 181, 185-86 (Fla. 1st DCA 1991) (holding that circuit court's refusal to allow
defendant to call detective as an adverse witness to impeach him through use of prior
inconsistent statements about a defendant's identity amounted to a denial of due
process). Plainly there was error here, and the circuit court recognized it as such. The
question this appeal raises is whether the error of the exclusion of this evidence was
harmless in Mr. Brooks' case.
The harmless error test, as set forth in
Chapman[ v. California, 386 U.S. 18, 24 (1967),] and
progeny, places the burden on the state, as the
beneficiary of the error, to prove beyond a reasonable
doubt that the error complained of did not contribute
to the verdict or, alternatively stated, that there is no
reasonable possibility that the error contributed to the
conviction.
State v. DiGuilio, 491 So. 2d 1129, 1135, 1138 (Fla. 1986).
To be sure, the State put forth considerable evidence that implicated Mr.
Brooks in these murders. But as the late Judge Walden once aptly observed, "There
can, of course, be no more damning piece of evidence than a confession by the party
charged." McDonnell v. State, 292 So. 2d 420, 424 (Fla. 4th DCA 1974) (Walden, J.,
dissenting); see also Sciortino v. State, 115 So. 2d 93, 95 (Fla. 2d DCA 1959)
(admonishing that "confessions of parties charged with crime should be acted on by
courts and juries with great caution"). Here, a witness recounted, at length and in detail,
an accused defendant's confession to God for the murder of one victim and a
remorseless confession for the murder of another. The confession Mr. Thomas relayed
was featured as a point in the State's opening statement and in its rebuttal closing
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statement to the jury. Depriving Mr. Brooks of the only meaningful opportunity to
impeach that witness' testimony for alleged bias cannot be deemed harmless under
these facts. See Musson, 184 So. 3d at 579; McCoy, 580 So. 2d at 185-86.
Accordingly, we reverse the judgments and sentences below and remand
this case for a new trial.
Reversed and remanded with instructions.
LaROSE, C.J., and KHOUZAM, J., Concur.
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