Opinion
No. 3D19-1291
08-12-2020
Ivan WONG, Appellant, v. The STATE of Florida, Appellee.
Carlos Martinez, Public Defender, and Susan S. Lerner, Assistant Public Defender, for appellant. Ashley Moody, Attorney General, and Kseniya Smychkouskaya, Assistant Attorney General, for appellee.
Carlos Martinez, Public Defender, and Susan S. Lerner, Assistant Public Defender, for appellant.
Ashley Moody, Attorney General, and Kseniya Smychkouskaya, Assistant Attorney General, for appellee.
Before EMAS, C.J., and HENDON and GORDO, JJ.
HENDON, J.
Ivan Wong ("Mr. Wong") appeals from his convictions and sentences for the first degree murder of Mabel Figueroa (Count I); second degree murder of Michel Figueroa, a lesser included offense of first degree murder (Count II); the attempted manslaughter by act of Maria Eugenia Gutierrez, a lesser included offense of attempted first degree murder (Count III); the attempted manslaughter by act of Modesto Figueroa, a lesser included offense of attempted first degree murder (Count IV); aggravated battery of Ernesto Cardenas, a lesser included offense of attempted first degree murder (Count V); and one count of burglary (Count VI). We affirm.
FACTS
At trial, it was undisputed that Mr. Wong committed the acts that occurred on December 29, 2013, including firing the firearm and driving the Ford F350 during the charged offenses. As reflected in State's and the defense's opening and closing arguments, the issue for the jury to resolve was whether Mr. Wong acted with a premeditated intent. Thus, the jury was called upon to determine what crimes Mr. Wong committed—the crimes charged in the indictment or any of the lesser included offenses.
I. Logo on Firearm Grips
A. Pretrial Motion in Limine
The issues raised in this appeal relate to the logos—white skulls—imprinted on each side of the grip of the firearm utilized by Mr. Wong on December 29, 2013. Prior to trial, the defense filed a motion in limine to exclude any reference or evidence relating to the logos imprinted on both sides of the black firearm's grip, explaining as follows:
Mr. Wong hereby moves to exclude any reference to "The Punisher" logo that is emblazoned upon the left and right sides of the grip of the firearm at issue. ... "The Punisher" stems from a Marvel Comics’ fictional character with eponymous publications, movies and now a television show on Netflix. The character is premised as a brutal vigilante who engages in a variety of violent acts in order to further his campaign against the mob and illicit criminals. See Punisher Wikipedia Page.
The emblem of "The Punisher" is a white skull on black background, which is associated with vigilantism and unsanctioned violence. That sort of inflammatory image cannot but characterize Mr. Wong in an extraordinarily improper and impermissible [sic]. There cannot be any inferences of any kind before the jury regarding the presence of this particular image on the firearm. The firearm is identifiable by other means – i.e. the serial number – and therefore the imagery on the grips should never be before the jury. ...
At the hearing on the motion in limine, the defense requested that the logos on the grip of the firearm be covered with a piece of paper, arguing that the logos are "indicative of the punisher character, which is a vigilante that engages in brutal violence." The trial court asked defense counsel if there will be any evidence coming in that Mr. Wong understood that when he bought the firearm. In response, defense counsel indicated that she had not discovered anything of that sort. The State asserted that it was not intending to dramatize the logo; the person at the gun shop may testify that this was the firearm he gave to Mr. Wong because it was the only firearm at the store with that logo; and the State would not elicit any testimony as to the meaning of the logo. The trial court stated that the jurors can be voir dired to determine if anyone is familiar with the logo, but defense counsel replied that it would be "a dangerous place" for her to go. In response, the trial court stated: "Well, I'm just saying if you're worried about it. Because, candidly, I had no idea what that meant until you all highlighted it for me." Both prosecutors also indicated that they did not know about the meaning of the logo, and the trial court then stated that it must "live in a cocoon" because it did not know about "The Punisher." In addition, defense counsel argued that when a gun is sold, it is sold by serial number, not by identifiable characteristics. In response, the trial court noted that "people remember things how they remember." The trial court denied the motion in limine, but warned that it did not want "anyone to highlight that this is somehow, you know, an exemplar of what Mr. Wong may have been thinking at the time that he bought this because I don't have any evidence, that I'm aware of, that he bought it other than he went to the gun shop and maybe found this as a gun he could afford."
B. Trial Proceedings Relating to Logo on Firearm
Prior to opening statements, the trial court overruled defense counsel's renewed objection to the white skull logos, arguing that displaying the logos is unduly prejudicial. During trial, over defense objection, the firearm and photographs of the firearm were introduced into evidence without the logos being covered. Finally, during closing argument, the trial court overruled the defense's objection when the State argued that Mr. Wong picked up a "distinct particular firearm" from the gun shop.
II. Trial Proceedings
A. Opening arguments
In its opening statement, the State argued that Mr. Wong's premeditated intent to murder was formed when his wife, Mabel, moved out of their marital home about twenty days prior to the offenses. Mabel moved out after he accused her of receiving a text message from someone named "David" that stated, "Good morning my love."
In contrast, defense counsel acknowledged that Mr. Wong is the person who committed the acts on December 29, 2013, but that the jury will have to determine exactly what crimes Mr. Wong committed—the charged crimes or lesser included offenses. Defense counsel argued that the evidence will show that Mr. Wong did not act with a premeditated intent when he committed any of the acts. Defense counsel also informed the jury that Mr. Wong was taken into an interrogation room around 3:00 a.m. on December 30, 2013, and a detective and Mr. Wong had an unrecorded conversation. Thereafter, they had a recorded conversation, and during the conversation, Mr. Wong admitted certain things, including that he intended to kill Mabel.
B. Evidence at Trial, Closing Arguments, Jury's Verdict
The evidence showed that on approximately December 9, 2013, Mr. Wong learned that Mabel had allegedly received a text message from someone named David that read, "Good morning my love." As a result, Mr. Wong got upset; punched a mirror, breaking two of his fingers; and threw a hammer at a dresser. Mr. Wong then moved out, and he moved in with his mother and stepfather.
After Mr. Wong and Mabel separated, he unsuccessfully attempted to reconcile with Mabel. On December 13, 2013, Mr. Wong went to a gun shop and purchased a firearm. After the waiting period, Mr. Wong returned to the gun shop on December 21, 2013, and picked up the firearm and purchased ammunition and a gun case. At the trial, the clerk did not reference the white skulls imprinted on the firearm, and during his testimony, the customer profile form, which included the serial number of the firearm purchased by Mr. Wong, was introduced into evidence.
In the early morning of December 29, 2013, Mr. Wong called Mabel, and they agreed to meet before Mabel left for work. When they met, Mr. Wong told Mabel that he had continued to check her cellphone records, and he knows that Mabel and David have continued to text each other. Mabel denied communicating with David. Mr. Wong told Mabel that he wanted to reconcile, and Mabel agreed to meet with Mr. Wong after work.
Mr. Wong drove to Mabel's brother's house, and Mabel and Mr. Wong conversed inside of Mr. Wong's Ford F350 pickup truck. During the conversation, Mr. Wong looked at Mabel's cellphone, and allegedly, there were more text messages between David and Mabel. Mr. Wong became very angry. He threw Mabel's cellphone onto the street, causing it to break. Mabel exited Mr. Wong's pickup truck.
Mr. Wong then drove to his mother's house and retrieved his firearm. According to Mr. Wong, he retrieved the firearm to see if he could scare Mabel "to realize that she needs to stop these things." When he was on his way back to see Mabel, he called Maria Eugenia and asked her to put Mabel on the phone. Maria Eugenia told him not to return to her house or she would call the police.
Maria Eugenia went outside to speak with Michel (her husband) and Ernesto Cardenas, a friend who stopped by the house to visit, and she noticed that Mr. Wong's Ford F-350 pickup truck was in the driveway. Mr. Wong jumped out of the truck and started shooting, hitting both Michel and Ernesto. Michel died, but Ernesto survived.
Contrary to Maria Eugenia's trial testimony, in his statement to the police, Mr. Wong stated that Michel and another man (Ernesto) "came at him" when he got out of his pickup truck, and Mr. Wong then "charged" his weapon, hoping that doing so would deter them from continuing to come towards him.
After he discharged his firearm, Mr. Wong noticed that his pickup truck was moving on its own because he left it in drive. He jumped back into the pickup truck and drove his pickup truck through fences. He hit a fountain and cars, and he crashed his vehicle into the front of the Michel and Maria Eugenia's house, leaving a gaping hole. Mabel's father jumped between Mabel and Mr. Wong's pickup truck, and Mr. Wong hit Mabel's father, Modesto Figueroa. During the police interview, Mr. Wong stated that after he saw Mabel trying to escape, he intentionally repositioned his pickup truck and drove the pickup truck backwards and forward a few times, with the intention of hitting Mabel. As a result of Mr. Wong's actions, Mabel sustained crush injuries and died. During his interview with the police, Mr. Wong also acknowledged that his intention "was to run over [Mabel]." In addition, Maria Eugenia hid behind her husband's vehicle, and Mr. Wong hit that vehicle two times with his pickup truck, injuring Maria Eugenia's foot. Although Mr. Wong had already shot Michel, Mr. Wong also ran over Michel several times with the pickup truck when attempting to hit Mabel.
Mr. Wong drove back to his mother's house, and on his way, he spoke to his sister. When he arrived, Mr. Wong's stepfather took the firearm away from him and placed it inside of the house. Mr. Wong told them that he had killed Mabel, her father, and her brother. Mr. Wong's sister called 911.
When the police arrived, Mr. Wong and his family members were outside. After obtaining a warrant, the firearm was retrieved. When Officer Rodriguez placed Mr. Wong into the police vehicle, Mr. Wong told him that he had run over his wife, shot his wife's brother, and he believed they were dead.
Mr. Wong was transported to the police station, and placed into a room. Mr. Wong was informed of his Miranda rights, which he voluntarily waived. Detective Hatzes then conducted a pre-interview with Mr. Wong, which was not recorded. Thereafter, Detective Hatzes took a recorded statement, which was introduced into evidence. As stated above, during the recorded interview, Mr. Wong acknowledged that his intention "was to run over [Mabel]," and that when he saw Mabel trying to escape, he intentionally repositioned his pickup truck and drove the pickup truck backwards and forward a few times, with the intention of hitting Mabel. Mr. Wong also gave details as what led up to the separation; his attempts to reconcile with Mabel; his anger; that Mabel's mother did not want them to reconcile despite asking for forgiveness because he had become violent; and that on his way to his mother's house prior to retrieving the firearm, he started to think that they were making fun of him and using him, and this made him even more angry.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
After the State rested, Mr. Wong called his mother. She testified that Mr. Wong was depressed after he and Mabel separated, but he never expressed an intent to hurt Mabel. Further, when she discovered the firearm in his drawer, she asked him about it, and he said that he had always wanted a firearm, and that it was the right moment to purchase it.
During closing argument, the State argued that it established that Mr. Wong's acts were premeditated. In contrast, the defense argued that Mr. Wong acted in the heat of passion, and that he lost control of his pickup truck, and therefore, did not act with premeditation. Further, during closing argument, the State stated that Mr. Wong picked up a "distinct particular firearm" from the gun shop, and defense counsel's objection to this statement was overruled.
The jury returned its verdict as stated above. Mr. Wong was later sentenced, and Mr. Wong's appeal followed. ANALYSIS
The State had waived the death penalty.
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Mr. Wong contends that the trial court abused its discretion by denying his motion in limine to exclude any reference to the logo imprinted on each side of the firearm's grip, including by covering the logos with a piece of paper, arguing that the logos are irrelevant. We disagree.
Section 90.401 of the Florida Statutes provides that "[r]elevant evidence is evidence tending to prove or disprove a material fact." Mr. Wong acknowledges that the firearm itself is relevant, but asserts that the logos are irrelevant. As asserted by the State during the motion in limine hearing, the logos were relevant because the clerk at the gun shop may testify that this was the firearm he gave to Mr. Wong because it was the only firearm at the store with that logo. Further, as the trial court noted, "people remember things how they remember." Admittedly, at trial, the gun shop clerk did not reference the logos when testifying that the firearm discharged by Mr. Wong was the firearm purchased shortly after Mr. Wong and Mabel separated. Nonetheless the logos were relevant.
Mr. Wong argues that even if the logos were relevant, the logos should have been covered with a piece of paper because its probative value is substantially outweighed by the danger of unfair prejudice. § 90.403, Fla. Stat. (2019) ("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."). The burden to exclude evidence under section 90.403 was on Mr. Wong as the moving party. See State v. Gerry, 855 So. 2d 157, 159 (Fla. 5th DCA 2003) (holding that the burden to exclude relevant evidence under rule 90.403 "is on the party attempting to exclude the evidence to make that showing"). "The unfair prejudice that section 90.403 attempts to eliminate relates to evidence that inflames the jury or appeals improperly to the jury's emotions." Gerry, 855 So. 2d at 159 (quoting State v. McClain, 525 So. 2d 420, 422 (Fla. 1988) ) (internal quotation marks omitted).
Mr. Wong's assertion of unfair prejudice is based on defense counsel's assertion that it is common knowledge that the white skulls on the grip of the firearm is the emblem of "The Punisher," which is a fictional character associated with vigilantism and unsanctioned violence. The white skulls on the grip of the firearm were not accompanied by the words "The Punisher." Defense counsel's assertion as to common knowledge of the logo's association and/or meaning is at best speculative. As stated earlier, at the motion in limine hearing, the trial court stated that the issue could be explored during voir dire. Defense counsel responded that it would be "a dangerous place" for her to go. As such, it appears that defense counsel made a tactical decision to not explore her concerns as to the white skull logo. Defense counsel could have simply asked the prospective jurors if they were familiar with the imprinted white skulls on the firearm, and thereafter, with the trial court's approval, voir dired in private any prospective juror familiar with the white skulls. Instead, the defense counsel opted not to do so, and is now speculating that everyone (except for the trial court and the two prosecutors) are familiar with "The Punisher" logo and the fictional character. Thus, under the circumstances, the trial court did not abuse its discretion.
Mr. Wong also contends the trial court abused its discretion by overruling the objection to the State's comment during closing argument that Mr. Wong picked up a "distinct particular firearm" from the gun shop. We disagree. The statement was a fair comment on the evidence—the firearm was distinct. Assuming that the trial court abused its discretion by not granting the motion in limine, by sustaining defense counsel's objections when the firearm or photographs of the firearm were introduced into evidence, or by overruling the objection to the State's comment during closing argument, the errors were harmless. In State v. DiGuilio, 491 So. 2d 1129 (Fla. 1986), the Florida Supreme Court set forth the applicable test to determine whether an error is harmless:
The test 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. The question is whether there is a reasonable possibility that the error affected the verdict. The burden to show the error was harmless must remain on the state. If the appellate court cannot say beyond a reasonable doubt that the error did not affect the verdict, then the error is by definition harmful.
In Rodriguez v. State, 248 So. 3d 1085 (Fla. 2018), the Florida Supreme Court reaffirmed the harmless error standard set forth in DiGuilio. Assuming that error was committed by the trial, under the DiGuilio test, the error was harmless. The State has demonstrated beyond a reasonable doubt that the error did not affect the verdict.
The remaining arguments raised by Mr. Wong do not merit discussion.
Affirmed.