Jessica J. Yeary, Public Defender, and Danielle Jorden, Assistant Public Defender, Tallahassee, for Appellant. Ashley Moody, Attorney General, and Miranda L. Butson, Assistant Attorney General, Tallahassee, for Appellee.
Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.
On appeal from the Circuit Court for Escambia County. Coleman Lee Robinson, Judge.
Jessica J. Yeary, Public Defender, and Danielle Jorden, Assistant Public Defender, Tallahassee, for Appellant.
Ashley Moody, Attorney General, and Miranda L. Butson, Assistant Attorney General, Tallahassee, for Appellee.
A jury convicted Cordarin Jerome Simmons on one count of felony murder and he was sentenced to life in prison. He raises three arguments for reversal of his judgment and sentence involving the denial of his motion for judgment of acquittal, the exclusion of a co-defendant's hearsay testimony, and the cumulative impact of statements made by the prosecutor during cross-examination and closing argument. We affirm.
Appellant first challenges the denial of his JOA motion, the review of which is de novo. Carter v. State, 303 So.3d 1271, 1273 (Fla. 1st DCA 2020) (citing Veney v. State, 217 So.3d 1189, 1190 (Fla. 1st DCA 2017)). The basic question here is whether competent, substantial evidence supported all elements of the State's case when viewing the evidence and making reasonable inferences in a light most favorable to the State. Id. at 1275; Brown v. State, 243 So.3d 1037, 1039 (Fla. 1st DCA 2018).
In this case there was sufficient evidence that Appellant committed felony murder with a predicate burglary offense. The State's evidence showed that a neighbor discovered the victim just after he had been badly beaten and had extensive blunt force injuries to all parts of his body. The kitchen area of the victim's house was bloody, and his home had been ransacked. Law enforcement arrived before the victim lost consciousness and the victim told an officer that he had been beaten with pistols by three men. The victim ultimately died from head trauma, internal injuries, and bleeding in his lungs.
The subsequent crime investigation revealed that an unfamiliar maroon SUV had been at the home just before the victim was found. Surveillance video captured three men entering and exiting the home before leaving in the SUV. Police later located the SUV and questioned its owner. The SUV owner testified that she had been dating Appellant's co-defendant and let him use her car. She had seen him just after the time of the crime when he dropped by her work in the SUV along with Appellant and her brother. Later that same day, she noticed that the interior of her SUV had been cleaned. Forensic testing showed a mixture of DNA profiles in the SUV including the victim's DNA. In turn, Appellant's DNA was found on a cell phone recovered from the victim's kitchen floor. Phone records confirmed that Appellant's phone was in contact with his co-defendant's phone before the crime, and that text messages had been swapped with the victim to set up a drug sale. From the surveillance video, the SUV's owner was also able to identify and place her boyfriend and Appellant at the victim's house just before the neighbor found him.
To prove the predicate crime of burglary, the State was required to prove that Appellant entered "a dwelling, a structure, or a conveyance with the intent to commit an offense therein." § 810.02(1)(b), Fla. Stat. From this evidence, a reasonable inference can be drawn that Appellant and two others, at the very least, set up the victim for a robbery. Again, the victim's house was ransacked. Appellant's JOA argument essentially asks this Court to reweigh the evidence in his favor, which is not appropriate. And so, we see no problem with the trial court's ruling on the JOA motion.
Appellant's second argument challenges the trial court's decision to exclude out-of-court statements supposedly made by a man who Appellant argues was the actual third person, instead of himself, who visited the victim's house at the time of the crime. Appellant acknowledges that one of his cell phones was discovered in the victim's house. But he claims to have given the phone to another man for purposes of conducting Appellant's drug-sale business. According to Appellant, this business associate is the one who possessed his phone at the victim's house. This supposed associate of Appellant did not participate in the trial. And when Appellant's co-defendant attempted to recite the associate's supposed story of what happened at the victim's house, the court sustained the State's hearsay objection. At sidebar, defense counsel unsuccessfully argued to the court that the associate's statement was not being recounted for the sake of establishing the truth, but for its effect on listeners:
My response to the hearsay objection is that I'm offering it not for the truth of the matter asserted.... I'm offering it for the effect upon the listener because . . . [the co-defendant] got out of there and didn't hang around to check on this other business . . . based on what was told to him [by the associate] when they got in the vehicle.
[Appellant's counsel joined the objection] because I think it does affect [Appellant] as well because it leads to a basis of why they went to Ohio, why [Appellant] went with [the co-defendant].
Appellant does not make the same hearsay argument now, however, which creates a preservation problem. Rather, Appellant raises a due process-related hearsay argument that the associate's statements must have been allowed into evidence through the codefendant because it bolsters Appellant's theory of defense about what happened at the victim's house, and that he wasn't involved. Except in cases of fundamental error, this court cannot consider arguments not raised as part of the objection in the trial court. § 924.051(3), Fla. Stat. (requiring the proper preservation of issues on appeal); Pisano v. Mayo Clinic Fla., 333 So.3d 782, 788 (Fla. 1st DCA 2022) ("The preservation requirement has been strictly construed to require that the 'specific legal argument or ground to be argued on appeal must be part of that presentation [below] if it is to be considered preserved.'") (quoting Archer v. State, 613 So.2d 446, 448 (Fla. 1993)).
Also, no fundamental error is involved here. Jackson v. State, 301 So.3d 477, 480 (Fla. 1st DCA 2020) (explaining that fundamental error reaches down into the validity of the trial itself to the extent that a verdict of guilt could not have been obtained without the alleged error). Appellant cites Chambers v. Mississippi, 410 U.S. 284, 302 (1973), in arguing that his due process right to present defensive evidence should have superseded application of the hearsay rule. But this is incorrect. Chambers held that a court's mechanistic exclusion of a third-party confession violated a defendant's constitutional rights to due process and a fair trial where the confession carried an indicia of trustworthiness. Id. at 300-03; Payton v. State, 239 So.3d 129, 133 (Fla. 1st DCA 2018). By contrast, Appellant doesn't come close to satisfying the metrics used in Chambers to establish the statement's reliability (insofar as this case involves an uncorroborated and self-serving statement purportedly made by an elusive business associate of Appellant, who pinned the victim's murder on shadowy other people who nobody else saw at the home). Even if Appellant had preserved this hearsay argument, the trial court wouldn't have abused its discretion by determining that the associate's statements fall well short of satisfying Chambers.
Finally, Appellant contends that various comments by the prosecutor deprived him of a fair trial by effectively shifting the burden of proof to the defendants. We review this issue for fundamental error because Appellant's arguments were not properly preserved. See Lynch v. State, 304 So.3d 837, 840 (Fla. 1st DCA 2020) (reviewing for fundamental error in the context of unobjected-to comments by a prosecutor). Here, again, we don't see a problem. Rather, we recognize that prosecutors are free to comment on any evidence produced by the defense, including the general lack of defense evidence. Id.; Bell v. State, 108 So.3d 639, 647-48 (Fla. 1st DCA 2013). The prosecutor's comments did not compromise the integrity of Appellant's trial.
RAY and TANENBAUM, JJ., concur