Silver v. State

278 So.3d 337

Kendrick SILVER, Appellant,

v.The STATE of Florida, Appellee.

No. 3D17-2320

District Court of Appeal of Florida, Third District.

Opinion filed September 4, 2019

Carlos J. Martinez, Public Defender, and Manuel Alvarez, Assistant Public Defender, for appellant.

Ashley Moody, Attorney General, and Gabrielle Raemy Charest-Turken, Assistant Attorney General, for appellee.

Before SALTER, LINDSEY, and MILLER, JJ.

MILLER, J.

Appellant, Kendrick Silver, challenges his convictions for first-degree murder and conspiracy to commit armed robbery, contending the lower tribunal erred in admitting Williams ¹ rule evidence and hearsay by inescapable inference during his trial. For the reasons set forth below, we discern no error and affirm.²

FACTS

In 2006, Silver and his cohort, Oniel Pedley, embarked on a crime spree spanning an eight-month time period. The episode involved four armed robberies, two of which culminated in the deaths of hapless individuals. Eventually, forensic evidence and witness testimony betrayed the identity of the perpetrators.

On December 16, 2006, Solemus Accimeus, then sixty-two years of age, was working as an armed security guard at Esther's Restaurant located on Northwest 103rd Street ("Esther's 103rd Street") in Miami-Dade County, Florida. At the conclusion of his shift, Accimeus disarmed himself, placing his firearm inside his vehicle parked at the rear of the restaurant. Shortly thereafter, he was fatally gunned down by a masked man attired in dark clothing. As Accimeus was shot at close range, blood spattered on the exterior of the assailant's mask.

Clinton Saunders resided in close proximity to the restaurant. On the evening of the homicide, he detected the sound of gunshots, immediately followed by the reverberation of an accelerating engine. Moments later, he observed a man he later deduced to be the perpetrator of the homicide, cloaked in a ski mask and dark apparel. As the man traversed the street, secreting himself between parked vehicles, he locked eyes with Saunders and brandished his firearm. Saunders sought refuge underneath his vehicle and the individual fled, discarding numerous objects along the way.

Homicide detectives responded to the crime scene and discovered several items of evidentiary value, among them the ski mask. Nonetheless, the case remained unsolved for a protracted period of time. Eventually, law enforcement officers interviewed Pedley's girlfriend and confidante, Shana Wright. Wright was not extended immunity during her initial statement. She inculpated both Pedley and Silver in multiple crimes, but she did not originally disclose any knowledge regarding the homicide.

Shortly after obtaining Wright's statement, Miami-Dade Police Department Homicide Detective Michael Scott sought and procured DNA samples from Silver and Pedley. A forensic analysis of the ski mask later revealed Silver as a possible contributor to serological specimens recovered from three areas of the interior, at varying degrees of statistical significance, and Accimeus as a contributor to a blood sample harvested from the exterior. Additionally, Accimeus's blood was identified on a semi-automatic firearm, an item of clothing, a piece of twine, and gloves recovered from the scene.

Wright was arrested for a third-unrelated robbery, and agreed to a plea bargain requiring her to testify under a grant of immunity. She eventually recounted that, while studying at Florida International University ("FIU"), she allowed Pedley, Silver, and Silver's girlfriend, Jonika Maynor, to reside in her dormitory room located on the FIU Biscayne Bay Campus.³ At that time, Silver was employed at Esther's Restaurant on 27th Avenue ("Esther's 27th Avenue"), also located in Miami-Dade County, Florida, and Pedley was employed at Esther's 103rd Street. Each man owned a firearm. The men routinely wore two layers of dark clothing, in order to facilitate expedient changes in appearance. They stored their firearms, along with extra clothing, gloves, and ski masks, in a rucksack.

Toward the end of October 2006, Silver and Pedley formulated a plan to rob Esther's 27th Avenue. They utilized a dry-erase board in Wright's dormitory room to diagram the layout of the targeted venue and sought Wright's assistance in serving as a decoy to obtain access to the back entrance.

On November 6, 2006, Silver and Pedley donned dark clothing, gloves, and ski masks. They armed themselves with their respective firearms, retrieved the rucksack, and proceeded to the rear of the restaurant at closing time. Wright remained behind, as the entrance was open and accessible. Silver and Pedley carried out the robbery and returned to the vehicle with a register drawer containing currency. All three fled the scene together.

The three subsequently planned to perpetrate a robbery at Esther's 103rd Street. The men expressed concern regarding the venue's unique challenge, as an armed security guard was charged with policing the business. Nonetheless, they again diagrammed the venue on the dry-erase board in the dormitory room, donned multiple layers of dark clothing, armed themselves with the same firearms, fetched the rucksack, and proceeded to the rear of the restaurant at closing time. On this occasion, Wright's role was slightly different, as she was tasked with exchanging vehicles to avoid detection. However, the robbery was aborted for unexplained reasons, and the men unexpectedly returned to the awaiting vehicle without having garnered any proceeds. Thereafter, Wright was excluded from further criminal objectives.

On the evening of the homicide in the instant case, Wright observed Silver and Pedley both attired in dark clothing. They carried the rucksack and departed from the dormitory room. Upon their return, approximately one hour later, the men were clothed in different outfits. Silver appeared "frantic" and was breathing heavily. He apologized to Pedley for losing Pedley's firearm and stated, "I told you, Bro, if I had to do it that I would." Silver repeatedly inquired as to whether Maynor perceived the "smell [of] ... death" and then promptly showered, while Pedley watched a news program. The men left and Wright and Maynor continued watching television. They learned that the security guard at Esther's 103rd Street had been shot earlier that evening.

In anticipation of trial, the State furnished the requisite notice under section 90.404(2), Florida Statutes (2019), setting forth its intention to introduce similar fact evidence. Specifically, the State sought to offer evidence of two other armed robberies committed by Pedley and Silver, one at Esther's 27th Avenue in Miami-Dade County and one at Picasso's Restaurant in Palm Beach County.

The lower tribunal conducted a preliminary hearing and determined that only the former crime satisfied the stringent admissibility requirements promulgated under the Florida Evidence Code. Accordingly, it excluded reference to the robbery at Picasso's Restaurant. At trial, the State introduced evidence regarding the robbery of Esther's 27th Avenue and testimony that DNA samples from Silver and Pedley were obtained immediately after Wright's initial statement. Silver was convicted of first-degree murder and conspiracy to commit armed robbery, as charged in the indictment. The instant appeal ensued.

STANDARD OF REVIEW

"The admission of evidence is within the sound discretion of the trial court, constrained by the application of the rules of evidence and the principles of stare decisis." Hayward v. State, 183 So. 3d 286, 325 (Fla. 2015) (citing Davis v. State, 121 So. 3d 462, 481 (Fla. 2013) ). "A trial court has broad discretion to determine the relevancy of evidence." Wright v. State, 19 So. 3d 277, 291 (Fla. 2009). Thus, we will not disturb a trial court's decision to admit collateral act evidence absent an abuse of discretion. See Whisby v. State, 262 So. 3d 228, 231 (Fla. 1st DCA 2018). "However, the question of whether evidence falls within the statutory definition of hearsay is a matter of law, subject to de novo review." Burkey v. State, 922 So. 2d 1033, 1035 (Fla. 4th DCA 2006) (citation omitted).

LEGAL ANALYSIS

I. Admissibility of Williams Rule Evidence

Silver contends the trial court erred in admitting Williams rule evidence of the antecedent robbery at Esther's 27th Avenue, as the two crimes did not bear sufficient "hallmarks" of identity to warrant introduction. "The prerequisite to the admissibility of evidence is relevancy. All evidence tending to prove or disprove a material fact is admissible, unless precluded by law." Wright, 19 So. 3d at 291 (citing §§ 90.401 - 90.402, Fla. Stat. (2000) ). As codified in section 90.404(2)(a), Florida Statutes (2019), "[s]imilar fact evidence of other crimes, wrongs, or acts is admissible when relevant to prove a material fact in issue, including, but not limited to, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident."⁴ Nonetheless, such evidence is "inadmissible when the evidence is relevant solely to prove bad character or propensity." § 90.404(2)(a), Fla. Stat.

Before admitting collateral crime evidence,

the trial court must make four determinations: [ (1) ] whether there is sufficient evidence that defendant committed the collateral crime; [ (2) ] whether the collateral crime meets the similarity requirements necessary to be relevant; [ (3) ] whether the collateral crime is too remote, so as to diminish its relevance; and [ (4) ] whether the prejudicial effect of the collateral crime substantially outweighs its probative value.

Peterson v. State, 2 So. 3d 146, 153 (Fla. 2009). While Silver does not contest the three formative requirements, he contends the pervasive characteristics between the two criminal episodes are common of many robberies, and thus, insufficient to establish the relevancy required to prove identity. We confine our analysis, accordingly.

As a threshold matter, a body of well-reasoned...