Opinion
Case No. 5D18-3763
08-09-2019
Bobbie Lee MONTS, Appellant, v. STATE of Florida, Appellee.
James S. Purdy, Public Defender, and Kathryn Rollison Radtke, Assistant Public Defender, Daytona Beach, for Appellant. Ashley Moody, Attorney General, Tallahassee, and L. Charlene Matthews, Assistant Attorney General, Daytona Beach, for Appellee.
James S. Purdy, Public Defender, and Kathryn Rollison Radtke, Assistant Public Defender, Daytona Beach, for Appellant.
Ashley Moody, Attorney General, Tallahassee, and L. Charlene Matthews, Assistant Attorney General, Daytona Beach, for Appellee.
LAMBERT, J.
Bobbie Lee Monts appeals his conviction for felony battery and the denial of his motion for a new trial. Monts raises two issues for reversal. First, he argues that the trial court erred in admitting into evidence an email that he sent to his girlfriend from the county jail as well as a videorecording of a later meeting that he had with her, also at the jail. Second, Monts contends that the court improperly precluded him from cross-examining the victim about a deferred prosecution agreement that she had entered into with the State that was in effect at the time of his trial. As explained below, we find no error on the first issue. We do, however, agree with Monts that the court erred in its limitation of his cross-examination of the victim, but we hold that the error is harmless. Therefore, we affirm Monts's conviction and sentence.
The victim in this case is the mother of one of Monts's minor children. She testified at trial that she and Monts had gotten into an argument at her house that culminated in Monts backhanding her across the face. As a result, the victim's lip was cut, and she had bleeding in her mouth. Monts left after the altercation, and the victim called her father, who promptly telephoned 9-1-1. A law enforcement officer arrived at the victim's home shortly thereafter and would testify at trial to observing the victim with redness on her face and that her lip was "busted on the inside." Approximately one hour after the altercation, Monts texted the victim, "Baby, I'm sorry."
While in custody at the county jail subsequent to his arrest, Monts emailed his girlfriend stating that he was sorry for letting her down, and essentially blamed his current predicament upon the actions of "people who claim to love [him]." Monts also requested of his girlfriend that she act as if he was with her. This email was admitted into evidence over objection. Monts subsequently met with his girlfriend at the jail, and their conference was videorecorded. During their conversation, Monts advised his girlfriend:
The girlfriend and the victim are not the same individual.
I told the lady I was home with you at the time, or whatever this shit went on. I don't even know the date, but I told her I was home with you, so if she calls you, be sure—I guess she'll get in contact with you.
Over objection, the videorecording of this conversation was admitted into evidence at trial. Pertinent to the recorded conversation, Monts's trial attorney was female.
We find no merit to Monts's first argument that the trial court erred in admitting the email and videorecording into evidence. A trial court's ruling on the admissibility of evidence will not be disturbed absent an abuse of discretion. Cummings v. State , 715 So. 2d 944, 949 (Fla. 1998) (citing Kearse v. State , 662 So. 2d 677, 684 (Fla. 1995) ). The email and videorecording could reasonably be interpreted as Monts attempting to fabricate an alibi by having his girlfriend testify that she was with Monts at the time of the battery. This evidence would be relevant to Monts's consciousness of guilt. See Virgo v. State , 931 So. 2d 1010, 1013 (Fla. 4th DCA 2006) (recognizing that "[a]n attempt to fabricate or fabrication of an alibi is relevant to the issue of consciousness of guilt"). Monts, who neither testified at trial nor presented any evidence, argues that this evidence was "irrelevant, confusing, and highly prejudicial" because it was unclear in these two communications whether Monts was referring to the instant battery case or to a separate case in which Monts was charged with fleeing or attempting to elude a law enforcement officer with lights and sirens activated with high speed or reckless driving. Based upon our review of the record, we conclude that it was well within the trial court's discretion to conclude that Monts's comments in the email and videorecording were directed towards the present battery case.
Monts was convicted in the other case as charged and was sentenced by the trial court to serve fifteen years in prison. His direct appeal of that judgment and sentence is presently pending before this court.
Monts next argues that the trial court improperly limited his cross-examination of the victim when it precluded him from inquiring about the deferred prosecution agreement that she had entered into with the State that was still in effect at the time of Monts's trial. This agreement, which is part of our record, showed that the victim had been charged with battery in an unrelated matter, but that the State agreed to defer prosecution against her on this charge for a period of twelve months, provided that the victim fully abided by the agreement's terms and conditions. If the victim was successful in meeting the various conditions, the State would not prosecute her on the battery charge; but the agreement also required the victim to admit to the ultimate facts of the battery as contained in the charging document or information filed against her. The agreement further provided that it could be used against the victim in court by the State if it proceeded with the battery prosecution. Lastly, the State Attorney, at its sole discretion, could shorten or terminate the agreement, or, upon violation, could initiate prosecution on the battery charge, whether or not the violation was based upon sworn evidence.
Monts contends that he was entitled to bring information about the deferred prosecution agreement before the jury to attack the victim's credibility by showing her potential bias in favor of the State. He is correct. Section 90.608(2), Florida Statutes (2017), provides that "[a]ny party, including the party calling the witness, may attack the credibility of a witness by ... [s]howing that the witness is biased." Additionally, the Confrontation Clause contained in Amendment VI of the United States Constitution requires that a defendant be allowed to cross-examine a witness regarding his or her credibility "if that examination aims to reveal the motive, bias or prejudice of a witness/accuser." Fajardo v. State , 193 So. 3d 1019, 1024 (Fla. 4th DCA 2016) (quoting Carlisle v. State , 137 So. 3d 479, 485 (Fla. 4th DCA 2014) ). As our court has recently explained:
Any relevant evidence tending to establish that a witness is appearing for the prosecution for any reason other than to tell the truth should not be kept from the jury. Defendants may cross-examine a witness about the conditions of a plea bargain entered into between the state and the witness. That examination includes inquiry into the specific nature of the pending charges against a cooperating state witness, and how the pending criminal charges may have influenced the witness's cooperation with the state and the content of in-court statements.
Rivera v. State , 274 So.3d 539, 541, , 2019 WL 2552628 (Fla. 5th DCA June 21, 2019) (internal citations omitted).
The State responds that based on this court's opinion in Johnson v. State , 766 So. 2d 480 (Fla. 5th DCA 2000), the trial court did not err in limiting the cross-examination because there was no nexus between Monts's battery charge and the offense that is the subject of the victim's deferred prosecution agreement. Although there is language in that decision to arguably support the State's argument, its reliance on Johnson is nevertheless misplaced because a closer reading of Johnson shows that, unlike in the present case, the defense there was allowed to and did bring out at trial that the State's witness was under pending charges both at the time she reported the crime and when she testified at trial. Id. at 481. The jury was also advised as to the nature of the pending charges. Id. Thus, the lack of the nexus between Johnson's charges and the victim's pending charges was not critical to the decision. Here, Monts should have been able to bring out the circumstances of the victim's deferred prosecution agreement with the State so that the jury could evaluate her possible motive or self-interest with respect to her testimony. See Fajardo , 193 So. 3d at 1024–25 (citing Morrell v. State , 297 So. 2d 579, 580 (Fla. 1st DCA 1974) ).
The State alternatively argues that any error in the trial court's failure to allow cross-examination regarding the victim's deferred prosecution agreement was harmless. It is correct that "the constitutionally improper denial of a defendant's opportunity to impeach a witness for bias, like other Confrontation Clause errors, is subject to ... harmless-error analysis." See Delaware v. Van Arsdall , 475 U.S. 673, 684, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986). Under a harmless-error analysis, the burden is placed on the State to show beyond a reasonable doubt that the error committed below did not affect the verdict. State v. DiGuilio , 491 So. 2d 1129, 1139 (Fla. 1986). The test for whether an error committed is harmless
is not a sufficiency-of-the-evidence, a correct result, a not clearly wrong, a substantial evidence, a more probable than not, a clear and convincing, or even an overwhelming evidence test. Harmless error is not a device for the appellate court to substitute itself for the trier-of-fact by simply weighing the evidence. The focus is on the effect of the error on the trier-of-fact.
Id.
After a thorough review of the trial transcript and applying the above principles, we conclude that the trial court's error in not allowing cross-examination of the victim's deferred prosecution agreement was harmless. Accordingly, we find no abuse of discretion in the trial court's denial of Monts's motion for a new trial, see Tundidor v. State , 221 So. 3d 587, 603 (Fla. 2017) ("A trial court's denial of a motion for a new trial is reviewed under an abuse of discretion standard."), and we affirm his conviction and sentence in this case.
AFFIRMED.
EVANDER, C.J., and EDWARDS, J., concur.