DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
TERRELL EUGENE TUMBLIN,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D18-3507
[September 2, 2020]
Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St.
Lucie County; Steven Levin, Judge; L.T. Case No. 562018CF001349A.
Carey Haughwout, Public Defender, and Timothy Wang, Assistant
Public Defender, West Palm Beach, for appellant.
Ashley Moody, Attorney General, Tallahassee, and Anesha Worthy,
Assistant Attorney General, West Palm Beach, for appellee.
SHEPHERD, CAROLINE, Associate Judge.
The appellant was convicted of aggravated stalking. Appellant argues
the trial court erred in three respects: (1) admitting into evidence a text
message identified by the victim as being sent by the appellant, (2) allowing
the victim to remain in the courtroom for opening statements after the rule
of sequestration was invoked, and (3) denying his Florida Rule of Criminal
Procedure 3.800(b) motion to correct illegal sentence for imposing a
$500.00 public defender fee in the written judgment when the oral
pronouncement was for $100.00.
We find no merit in the appellant’s first two arguments and affirm the
appellant’s conviction. We agree with the third argument and remand to
conform the written judgment to the oral pronouncement of a $100 public
defender fee. We write only to address the second argument regarding the
rule of sequestration.
On the day of trial, before opening statements, defense counsel moved
to exclude the witnesses from the courtroom. The trial court declined to
apply the rule of sequestration to the victim, stating it would be error to
exclude her.
The state called the victim as its first witness. The victim testified that
she filed for, and was granted, an injunction for protection against
domestic violence which both she and the appellant signed. She testified
that after the injunction was in place, on more than four occasions, the
appellant violated the injunction and contacted her. She explained that
those contacts were in person, by threatening telephone calls, and by text
messages in which he said he would have fun killing her. The victim
testified that she was able to video record one of the appellant’s attempts
to contact her when he appeared at her apartment. After the victim
testified, she was not recalled as a witness at any other point in the case.
We review a trial court’s decision to allow a witness to be excluded from
the rule of sequestration for an abuse of discretion. Gore v. State, 599 So.
2d 978, 986 (Fla. 1992).
The Florida Rule of Evidence regarding witness sequestration is codified
at section 90.616, Florida Statutes (2018), and titled “Exclusion of
Witnesses.” Section 90.616(1) provides: “At the request of a party the
court shall order, or upon its own motion the court may order, witnesses
excluded from a proceeding so that they cannot hear the testimony of other
witnesses except as provided in subsection (2).” (emphasis added).
Section 90.616(2)(d) provides, in pertinent part, “[a] witness may not be
excluded if the witness is … the victim of the crime, the victim’s next of kin,
the parent or guardian of a minor child victim, or a lawful representative
of such person, unless, upon motion, the court determines such person’s
presence to be prejudicial.” § 90.616(2)(d), Fla. Stat. (emphasis added).
As defined by the Florida Supreme Court, “[t]he purpose of the rule of
sequestration is to avoid a witness coloring his or her testimony by hearing
the testimony of another, thereby discouraging fabrication, inaccuracy, and
collusion.” Knight v. State, 746 So. 2d 423, 430 (1998) (emphasis added).
Here, the trial court properly allowed the victim to remain in the
courtroom for opening statements. As a preliminary matter, the rule of
sequestration does not apply to opening statements, as opening
statements are not evidence. See Fla. Std. Jury Instr. (Crim.) 2.1. (“The
opening statement gives the attorneys a chance to tell you what evidence
they believe will be presented during the trial. What the lawyers say is not
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evidence, and you are not to consider it as such.”); Conahan v. State, 844
So. 2d 629, 643 (Fla. 2003) (Harding, J., concurring in part, dissenting in
part) (“Opening remarks are not evidence ….”); Jenkins v. State, 189 So.
3d 866, 870 (Fla. 4th DCA 2015) (“[T]he statements of counsel during
opening statements and closing arguments are not evidence, and the jury
is told that the statements of the lawyers are not evidence pursuant to the
Florida Standard Jury Instructions.”).
Nevertheless, under section 90.616(2), the trial court properly could
have allowed the victim to remain in the courtroom during the entire trial,
unless it determined prejudice to the defense would result. The defense
failed to show how prejudice resulted from the victim hearing opening
statements. The victim was the state’s first witness and was not recalled
later as a witness, so there was no testimony which she could have heard
by which she could conform her testimony. Thus, the defense has not
established the trial court abused its discretion in allowing the victim to
remain in the courtroom.
Based on the foregoing, we affirm the appellant’s conviction. We
remand to conform the written judgment to the oral pronouncement of a
$100 public defender fee. The appellant need not be present for this
ministerial act.
Affirmed and remanded.
LEVINE, C.J., and KUNTZ, J., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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