FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D17-711
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FELICE JOHN VEACH,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
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On appeal from the Circuit Court for Escambia County.
Jan Shackelford, Judge.
August 30, 2018
OPINION ON MOTION FOR REHEARING
B.L. THOMAS, C.J.
We have before us Appellant’s Motion for Rehearing. We
grant Appellant’s motion and, accordingly, withdraw our former
opinion of July 9, 2018, and substitute this opinion in its place.
Appellant challenges the trial court’s denial of his motion in
limine to exclude portions of a jailhouse telephone call. He also
appeals the trial court’s disallowance of his questions to a co-
defendant, arguing this violated his Sixth Amendment right to
confrontation.
Facts
Appellant was charged by information with one count of
conspiracy to commit the felony of tampering with a victim, in
violation of sections 914.22 and 777.04(3), Florida Statutes
(2016). The charge arose from a recorded jail telephone call
between Appellant and his former girlfriend and co-defendant,
Lisa Harkins. The seventeen-minute phone conversation was
redacted to seven minutes. The State agreed that it would not
mention that Appellant was alleged to have tampered with a
victim in a lewd or lascivious molestation case.
Before opening statements, Appellant moved in limine to
further redact the portion of the jail phone call in which
Appellant asked Lisa Harkins, Appellant’s former girlfriend and
co-defendant, to “let them know that somebody stole [my] phone”
and asked Harkins to “call the investigator’s office tomorrow and
find out who brought you that phone because you could go press
charges on them . . . .” The trial court denied Appellant’s motion,
finding that the information that Appellant sought to redact was
relevant, and its probative value outweighed any undue
prejudice.
At trial, an Escambia County Sheriff’s Office investigator
testified that she began an investigation of Appellant based on
allegations of a minor victim. Thereafter, Appellant was
arrested. Harkins testified that she knew Appellant by the
nickname “Rocky” and that Appellant called her from the
Escambia County Jail. A recording of the jail phone call was
played. The call began with the following:
Hello. You have a call at no expense to you from Shawn
Stewart, an inmate at Escambia County Detention
Center. To accept this call, press five. . . . [T]his call will
be recorded and subject to monitoring at any time.
In the phone conversation, Appellant told Harkins to “get a
hold of” the victim in the underlying charge and “talk to her” and
to “get a hold of [the victim’s mother] and let her know.” The
phone record also contained the following statement made by
Appellant:
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(Unintelligible). You have the phone (unintelligible)
know, that it was my phone, Rocky Veach, and – but let
them know that somebody stole the phone and we just
found out. But the phone got turned over to the
investigator’s office. We want to know who got that
phone. So you need to call the investigator’s office.
The call came from the account of Inmate Shawn Stewart;
Harkins testified that she put money into that account, which
Appellant used because Appellant “said his phone wasn’t
working, his ID or whatever.” Harkins testified that she also had
a charge pending against her for conspiracy to commit a felony.
On cross-examination, Appellant’s counsel asked Harkins if
her “intention was not to break a law.” The State objected,
arguing that the jury did not need to make a determination on
Harkins’ intent, and nothing in direct examination opened the
door to that questioning. Appellant’s counsel argued that asking
Harkins her intent was relevant to prove what she understood
Appellant was asking her to do. The State asserted that if she
was asked the question, Harkins could invoke her Fifth
Amendment right against self-incrimination.
The trial court granted the State’s objection. Appellant was
found guilty and sentenced to 30 years’ imprisonment as an
habitual felony offender.
Analysis
The admission or exclusion of evidence is subject to an abuse
of discretion standard of review. San Martin v. State, 717 So. 2d
462 (Fla. 1998).
“Relevant evidence is evidence tending to prove or disprove a
material fact.” § 90.401, Fla. Stat. (2016). “All relevant evidence
is admissible, except as provided by law.” § 90.402, Fla. Stat.
(2016). “Relevant evidence is inadmissible if its probative value
is substantially outweighed by the danger of unfair prejudice,
confusion of issues, misleading the jury, or needless presentation
of cumulative evidence.” § 90.403, Fla. Stat. (2016). “‘Relevant
evidence is inherently prejudicial; however it is only unfair
prejudice, substantially outweighing probative value, which
permits exclusion of relevant matters.’” State v. Blackwell, 787
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So. 2d 963, 965 (Fla. 1st DCA 2001) (quoting State v. Andres, 552
So. 2d 1151, 1153 (Fla. 3d DCA 1989)).
Evidence of “other bad acts,” which are collateral to the
crime charged and not considered Williams * rule evidence, is
admissible if relevant and not more prejudicial than probative.
§ 90.404(2)(a), Fla. Stat. (2016). Thus, the trial court’s decision
allowing the admission of such evidence should not be
overturned, if the record supports a finding that the evidence is
relevant and not more prejudicial than probative. Kopsho v.
State, 84 So. 3d 204, 217 (Fla. 2012). As the supreme court
stated:
“[I]ntroduction of other crimes evidence is not limited to
crimes with similar facts. Dissimilar fact evidence may
be admissible under section 90.402, but like similar fact
evidence its admissibility is determined by its relevance.
It is permissible to introduce evidence that helps to put
the entire case into perspective to the extent that its
relevance is not outweighed by its prejudicial effect.”
Id. at 212 (citations omitted).
Appellant argues that the contested portion of the phone
conversation was irrelevant to the charged crime, because his
identity was not in dispute. We disagree.
Appellant placed the call to Harkins from another inmate’s
account, and the State offered the call because Appellant
identified himself in the contested portion of the call, thus
making the evidence relevant. While arguing the motion in
limine, Appellant asserted that “obviously the State has to, you
know, identify that [Appellant] is the person [on the phone].”
Appellant argues, alternatively, that even if the contested portion
was relevant, any probative value was outweighed by the unfair
prejudicial effect. Appellant asserts that the phone conversation
was unduly prejudicial, because it let the jurors speculate about
the charge underlying Appellant’s tampering charge.
* Williams v. State, 110 So. 2d 654 (Fla. 1959).
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“[T]he court's discretion to exclude evidence under Rule 403
is narrowly circumscribed. ‘Rule 403 is an extraordinary remedy
which should be used only sparingly since it permits the trial
court to exclude concededly probative evidence.’ The balance
under the Rule, therefore, should be struck in favor of
admissibility.” State v. Gerry, 855 So. 2d 157, 163 (Fla. 5th DCA
2003) (quoting United States v. Norton, 867 F.2d 1354, 1361 (11th
Cir. 1989)) (citations omitted). Here, the probative value of the
evidence was not outweighed by unfair prejudicial effect. Jurors
had no reason to speculate regarding underlying facts relating to
a cell phone, and further redaction would have improperly
prevented the State from presenting evidence establishing
Appellant’s identity.
Appellant also argues that the trial court violated his Sixth
Amendment right to confrontation by not allowing him to ask
Harkins on cross-examination whether she intended to commit a
crime when Appellant called her from jail. Harkins’ intent was
not relevant to the charge against Appellant and was not within
the scope of direct examination. When a line of questioning posed
to a criminal companion is “clearly a defensive matter well
beyond the scope of direct examination,” the trial court does not
err in curtailing the line of questioning. Steinhorst v. State, 412
So. 2d 332, 337-39 (Fla. 1982). The trial court did not err in
barring Appellant’s line of questioning, and even if it occurred,
the error was harmless, as the prosecutor stated that, based on a
conversation with Harkins’ counsel, Harkins would have asserted
her right against self-incrimination under the Fifth Amendment,
if the questioning had been allowed. Thus, there is no reasonable
possibility that exclusion of this question contributed to the
verdict. State v. DiGuilio, 491 So. 2d 1129 (Fla. 1986).
AFFIRMED.
LEWIS and MAKAR, JJ., concur.
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Andy Thomas, Public Defender, Megan Lynne Long, Assistant
Public Defender, Tallahassee, for Appellant.
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Pamela Jo Bondi, Attorney General, Kaitlin Weiss, Assistant
Attorney General, Tallahassee, for Appellee.
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