Howard v. State

288 So.3d 1239

Ronald E. HOWARD, DOC #917501, Appellant,

v.STATE of Florida, Appellee.

Case No. 2D17-4947

District Court of Appeal of Florida, Second District.

Opinion filed January 15, 2020

Howard L. Dimmig, II, Public Defender, and Steven L. Bolotin, Assistant Public Defender, Bartow, for Appellant.

Ashley Moody, Attorney General, Tallahassee, and Cynthia Richards, Assistant Attorney General, Tampa, for Appellee.

SALARIO, Judge.

Ronald Howard appeals from his judgment and sentences on two counts of first-degree murder and one count of felon in possession of a firearm. We agree with him that the State improperly presented evidence of his prearrest, pre- Miranda ¹ silence and argued that it proved his guilt. And although Mr. Howard's lawyer failed to object when the evidence was introduced and the argument was made, this is one of those rare cases in which the record on its face shows that the failure constitutes ineffective assistance of counsel. We reverse and remand for a new trial or other appropriate proceedings.

I.

On June 15, 2015, Sarasota police responded to a report of shots fired in a residential neighborhood. They found the bodies of two men near a home. Both had been shot with a revolver that the police found on the ground in front of the home. One of the men was J.C., who lived in the home with his wife and son. He was shot in the cheek and neck and died at the scene. The other was C.S., who lived in the neighborhood. He was shot in the temple. He was taken to the hospital, where he died.

The police encountered Mr. Howard, a neighbor of J.C.'s, sitting in a chair in front of the house. The police spoke with him briefly before entering the home. After investigating inside the home, the police came back outside and spoke with him again. At some point thereafter—the trial testimony was uncertain as to when—Mr. Howard was placed under arrest and was charged with the first-degree murders of J.C. and C.S., as well as with being a felon in possession of a firearm.

The case was tried in December 2017. Although there was no dispute that Mr. Howard fired the shots that killed J.C. and C.S., there were no eyewitnesses and thus was no direct evidence of the events that led to the shooting. The State's theory was that Mr. Howard had grown increasingly frustrated because J.C. parked trucks that he used for his landscaping business near Mr. Howard's house, making noise and blocking his driveway. In the State's telling, tensions over the trucks reached a boiling point. Mr. Howard and J.C. got into a heated confrontation, in which C.S. also became embroiled. Mr. Howard got a gun from his house and fatally shot both victims.

Mr. Howard's version of events was starkly different. He said that J.C. brought the gun and instigated the confrontation. According to Mr. Howard, J.C. was enraged with him because J.C. was involved in an extramarital affair and believed that Mr. Howard was going to disclose the affair to J.C.'s wife. During the confrontation, J.C. placed the gun to Mr. Howard's head. C.S. told J.C. to put the gun away. While J.C. was distracted, Mr. Howard went for J.C.'s gun. As the two men struggled, the gun went off, shooting C.S. in the head. Mr. Howard wrestled the gun away and shot J.C. in self-defense as J.C. was charging at him.

During opening statements, the prosecutor told the jury that when the police approached Mr. Howard at J.C.'s home and asked Mr. Howard what had happened, Mr. Howard remained silent. Mr. Howard objected that the statement was an impermissible comment on his constitutional right to remain silent. The prosecutor responded that it was not impermissible because Mr. Howard, at that time, had been neither arrested nor given Miranda warnings. The court asked the parties to present authorities on the issue and told the State not to address Mr. Howard's prearrest silence until it had ruled. But the trial court neither received the authorities it asked for nor ruled on the objection.

The State began its case-in-chief, calling as its first witness one of the responding police officers—who testified that he arrived at J.C.'s house and saw Mr. Howard seated on a chair in front of the carport. He stated that Mr. Howard appeared "very detached and emotionless." At the time, the officer did not regard Mr. Howard as a suspect; he was just trying to find out what happened. But Mr. Howard "only would indicate that he wasn't shot" and otherwise "refused to answer any questions." The prosecutor asked whether Mr. Howard told the officer "that he had been engaged in a struggle for his life and that he had acted in self-defense," and the officer said no. After discussing the officer's inspection of J.C.'s home, the prosecutor asked about the officer's conversation with Mr. Howard after the officer left the house. The officer testified that Mr. Howard stated that "they were going to shoot me too, or they would shoot me too, something to that effect" but otherwise "refused" to answer any questions.

Through police officers, the State then introduced recordings of calls Mr. Howard made to his girlfriend and brother while in jail. Mr. Howard did not admit to premeditated murder during any of these calls, but he did make statements in them that may fairly be interpreted as showing a consciousness of guilt. In one call, for example, Mr. Howard told his girlfriend that the police had accused him of murder and that he did not know or remember what had happened but that "nothing called for me to do two murders." He also complained about the work trucks J.C. parked near his house, stating "[t]hat shit will make you crazy, whatever kind of gas coming out, carbon monoxide or whatever and it will make you violent." In addition, the State introduced a recording of the police attempting to get a buccal swab from Mr. Howard pursuant to a warrant. Mr. Howard told the officers that his lawyer told him not to cooperate with any request they made, and a physical struggle ensued. During the struggle, Mr. Howard told the police "I don't know why y'all goin through dis, I'm already so court with dat, which y'all got me for. I'm not, I don't even need a public defender. I'm guilty, so what?"

J.C.'s son testified that he had seen Mr. Howard in possession of the gun before the shooting. And J.C.'s wife testified that Mr. Howard shot her husband but was unable to relate whether she saw the events leading to the shooting and, if so, what they were, and she was thus unable to tell the jury anything either way about premeditation or self-defense. The State also put on forensic evidence establishing that the shots to J.C.'s cheek and C.S.'s temple were delivered at very close range, while the shot to J.C.'s neck was delivered from three feet or more away.

In addition to cross-examination of the State's witnesses, the defense case consisted of testimony from J.C.'s paramour, who testified that there was indeed an extramarital affair between the two, and the testimony of Mr. Howard. Mr. Howard testified that J.C. had become enraged and put the revolver to Mr. Howard's head because he believed that Mr. Howard was going to tell his wife about the affair, and that during the ensuing confrontation, C.S. was accidentally shot, and that after Mr. Howard obtained possession of the gun, J.C. was shot in self-defense. Although the State cross-examined Mr. Howard at length, it never tried to impeach him with his silence at the scene of the shootings.

During closing argument, the State heavily emphasized the officer's testimony about Mr. Howard's prearrest silence. In its initial closing, the prosecutor argued as follows:

The defendant sat in that chair and he said nothing about self-defense. [The officer] came up to him and said, What happened? He didn't respond. Now common sense tells you that if you have just shot and killed two people because your life was threatened and endangered that you would say, oh, my God, they tried to kill me. I had to shoot them. I had no choice. It was self-defense. He sat there in that chair and didn't say a peep about what happened. [Another officer] came up to him and said, Hey, what happened. Same response. Wouldn't even make eye contact with [one officer]. Why wouldn't you say I had to shoot them in self-defense? Because at that point he knew he was guilty and he stated that over and over again from the interview room.

(Emphasis added.) When in response defense counsel argued that Mr. Howard was in shock after the events and did not understand what was going on, the State argued as follows in rebuttal:

Self-defense is not a sophisticated legal concept. There's no reason, if Mr. Howard actually acted in self-defense, that he couldn't explain himself while he sat in that wicker chair. All he had to do was say I had to protect myself; I had to shoot them, it was self-defense. So to say that he did not understand or he was in shock, it beggars belief, and I'm asking you to use your common sense.

(Emphasis added.)

The jury found Mr. Howard guilty as charged. The trial court sentenced him to life in prison on counts one and two and fifteen years with a three-year minimum mandatory on count three. This is Mr. Howard's timely appeal.

II.

Mr. Howard argues that the prosecutor's statements about his prearrest, pre- Miranda silence in opening and closing and the State's presentation of testimony about that silence during its case-in-chief were improper comments on his right to remain silent. Because Mr. Howard neither obtained a ruling on his objection to the statements in the opening nor made any objection as the testimony was offered and closing argument was made, this issue is not preserved for our review in this appeal.² See Hendrix v. State, 767 So. 2d 493, 494 (Fla. 2d DCA 2000) (holding that the defendant failed to preserve the prosecutor's improper comment on silence by failing to object); see also Carratelli v. State, 832 So. 2d 850, 856 (Fla. 4th DCA 2002) ("A plethora of Florida cases support the notion that a party must...