Mathieu v. State , 258 So. 3d 528 ( 2018 )

Third District Court of Appeal
State of Florida
Opinion filed October 10, 2018.
Not final until disposition of timely filed motion for rehearing.
________________
No. 3D17-423
Lower Tribunal No. 13-26313A
________________
Marcelyn Mathieu,
Appellant,
vs.
The State of Florida,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Richard
L. Hersch, Judge.
Rier Jordan, P.A., and Andrew F. Rier, for appellant.
Pamela Jo Bondi, Attorney General, and Magaly Rodriguez, Assistant
Attorney General, for appellee.
Before ROTHENBERG, C.J., and SALTER and LOGUE, JJ.
SALTER, J.
Marcelyn Mathieu appeals his conviction by a jury and sentence on charges
of second-degree murder with a firearm and accessory after the fact. Mathieu
raises three allegedly-reversible errors during the jury trial: (1) the denial of a
defense request to exercise a peremptory strike of a prospective juror; (2) the
denial of a motion to suppress the identification of Mathieu from a photographic
lineup contended to have been unduly suggestive; and (3) the admission of prior
allegedly-inconsistent statements and hearsay testimony by the State’s own
witness, an evidentiary ruling allowing improper corroboration of that witness’s
inconsistent testimony, and the denial of Mathieu’s motion to strike the witness’s
testimony.
We affirm without detailed analysis on points (1) and (2),1 and we affirm on
point (3) based the more extensive assessment which follows.
I. Facts and Proceedings Below
A. The Shooting; Charges against Eric Garcia
1 As to the denial of a challenged peremptory strike, the trial court carefully
followed the three-step procedure detailed in Melbourne v. State, 679 So. 2d 759
(Fla. 1996). Additionally, the defense did not renew its objection to the
composition of the jury panel before its members were sworn; see Baccari v. State,
145 So. 3d 958, 962-63 (Fla. 4th DCA 2014). As to the contention that the photo
array identified by a witness was unduly suggestive, see State v. Joseph, 79 So. 3d
49, 50-51 (Fla. 3d DCA 2011). The record does not establish that (a) “the police
employed an unnecessarily suggestive procedure,” and (b) the totality of the
circumstances did not give rise “to a substantial likelihood of irreparable
misidentification.” Id.
2
Evani Galvez died at the wheel of his Jeep Cherokee on July 30, 2011. His
passenger, Eric Garcia, had negotiated a deal to sell marijuana that day. Garcia
and the buyer had texted using drug-trade code for the terms of the deal. They
arranged a meeting in the parking lot of a shopping center. Unbeknownst to the
buyer, however, Garcia planned to use a BB gun that looked like a real pistol to
rob the buyer of the cash for the purchase.
Before being driven by the murder victim in his Jeep Cherokee to the
transaction site, Garcia smoked a marijuana joint and took Xanax. At the arranged
parking lot rendezvous, Galvez and Garcia saw a white Pontiac GT waiting as
well. After Garcia spoke briefly to the passenger in the Pontiac and the two
confirmed that the passenger was the buyer in the intended transaction, the
passenger walked with Garcia over to the victim’s Jeep Cherokee. Though this
was controverted during the trial, the passenger/buyer was later identified as
Marcelyn Mathieu, the defendant.
Mathieu allegedly occupied the back seat of the Jeep, with Garcia in the
passenger seat in front of him. Garcia turned around, pointed the BB gun at
Mathieu, and directed him to empty his pocket. Mathieu complied, dropping his
cash and cellphone. The victim, in the driver’s seat in the Jeep, let Mathieu leave
the vehicle and drove away (with Garcia still occupying the passenger seat).
3
Mathieu returned to the passenger seat of the white Pontiac, and that car
rapidly pursued the Jeep. The two cars were driving an estimated 70 miles an hour
through a residential neighborhood at one point. Ultimately the Pontiac pulled
around to the left side of the Jeep and the passenger—allegedly Mathieu—fired at
least two shots, one of which fatally wounded the victim in the head. The victim
collapsed over the steering wheel of the Jeep and the Jeep swerved, crashing
through a fence and into a house. The Pontiac continued on its course and left the
area.
Garcia was temporarily knocked unconscious. When he recovered, he
grabbed the BB gun and his bottle of Xanax pills and left the Jeep. Because of his
prior criminal record and house arrest at the time, he threw the bottle of pills over a
house and threw the BB gun over a fence and into the backyard of a nearby home.
While at the crash scene, he dropped the cellphone into a sewer drain and put the
money taken from Mathieu in his pocket.
In his initial statement to the police, Garcia blamed the drug robbery on the
victim and identified the shooter in the Jeep as “Spook.” He later admitted that he
made up that name because he didn’t want to get in trouble. He did say that the
shooter was a “stocky” black male in a white Pontiac.
Garcia was arrested and charged with second-degree felony murder and
other offenses: robbery, evidence-tampering, and a probation violation. In August
4
2012, Garcia entered into a plea agreement with the State, accepting a term of five
years in state prison for the charges. To that point, he had not identified Mathieu’s
name or photograph. His plea agreement required him to: testify to the best of his
knowledge regarding the shooter; cooperate fully with law enforcement in
“locating, investigating and prosecuting” anyone involved in the murder of the
victim, Galvez; give a sworn statement to the State regarding his knowledge of the
murder; and testify truthfully in any depositions, hearings, trials and statements
regarding those matters.
B. The Investigation; Identification of Mathieu
Several months after Garcia’s plea agreement became effective, Miami
Gardens Police Detective Pacheco2 visited Garcia in prison as part of his continued
investigation and effort to identify the shooter in the Galvez murder case.
Detective Pacheco showed Garcia a number of photographic lineups, but Garcia
didn’t identify any of the photos as the murderer.
In November 2013, Detective Pacheco found a phone number in a search of
Garcia’s cellphone and used it to identify the person who negotiated the failed
marijuana purchase—Exson Deshommes. Pacheco showed Deshommes an array
of six color photographs, one of whom was Mathieu. Deshommes identified
Mathieu by circling his photo in the array and writing “I selected photo number
2 Detective Pacheco took over the investigation after the originally-assigned
investigator was promoted, and after Garcia’s plea agreement was effective.
5
five as the person who was the shooter.” Deshommes also gave Pacheco
additional details regarding the shooting that culminated in the victim’s death.
The following day, Pacheco visited Garcia at the correctional facility where
he was serving his sentence. Pacheco showed Garcia another array of six color
photographs prepared after Pacheco’s interview with Deshommes, with a
photograph of Mathieu included in the array. After Pacheco gave Garcia standard
warnings that the array might or might not include a suspect, Garcia identified
Mathieu’s photo as a photograph of the shooter.3
Additional investigation identified another suspect as the driver of the white
Pontiac claimed to have transported Mathieu on the day, and at the moment, of the
shooting. That suspect’s mother owned a white Pontiac matching the description
given by an eyewitness to the traffic chase. That eyewitness saw the white Pontiac
speed alongside the Jeep Cherokee and the loss of control by the shooting victim.
The eyewitness also heard the gunshots and then stopped to assist the wounded
victim and Garcia. The suspected driver of the white Pontiac at the time of the
July 30, 2011, shooting was issued traffic citations driving that car on July 1 and
August 9, 2011.
C. Trial
3 This was the color photograph challenged by Mathieu as “unduly suggestive” as
his second point on appeal. The array was introduced as evidence at trial and made
a part of the record here.
6
At trial, these facts were described by the witnesses and additional forensic
experts regarding the manner and causes of the victim’s death. Notably, however,
Garcia admitted his many prior felonies, his lies to the police prior to his plea deal
in order to “save himself,” and his consumption of marijuana and Xanax the day of
the shooting. Garcia was seven inches off in his testimony regarding Mathieu’s
height (testimony, five feet, seven inches; actual height, six feet, two inches). But
Garcia expressed 100% certainty regarding his identification of Mathieu’s photo.
The matchmaker for the ill-fated drug transaction/robbery, Exson
Deshommes, also testified as a State witness. Deshommes had picked Mathieu out
of a photo array and was the first to identify him to Detective Pacheco as the
shooter. Deshommes testified at a pretrial deposition that he had been diagnosed
as a schizophrenic.
At trial, portions of Deshommes’ testimony were inconsistent with his prior
sworn statement and pretrial deposition. He testified, for example, that he had
identified Mathieu’s photo in order to avoid arrest, and he denied that the man in
the picture had told Deshommes about the reasons the victim was shot.
Deshommes also said he didn’t feel the person in the photo was the person he
previously identified. He testified that he couldn’t remember what he had told the
police before trial or statements he had made during his pretrial deposition. He
threatened to sue the trial court, and he went from the witness stand to the jury box
7
to shake a juror’s hand as his testimony concluded. The defense moved to strike
Deshommes’ testimony in its entirety, contending that the State called Deshommes
just to impeach him with his own prior out-of-court testimony.
The trial court denied the defense objections and motion to strike
Deshommes’ testimony. The jury returned a verdict of guilt on each charge. The
trial court sentenced Mathieu to 35 years in prison, followed by probation. This
appeal followed.
II. Analysis
The trial court’s ruling on the admissibility of evidence is reviewed under
the abuse of discretion standard. Bearden v. State, 161 So. 3d 1257, 1263 (Fla.
2015). An error in interpreting a rule of evidence, however, is subject to de novo
review. Id.
Mathieu contends in this case that the trial court erred by allowing the State
to call Deshommes as a witness at trial for the primary purpose of impeaching him
with otherwise inadmissible hearsay, notwithstanding timely objections and a
motion to strike. The Florida Supreme Court’s recent discussion on this legal issue
is found in Bradley v. State, 214 So. 3d 648, 655-56 (Fla. 2017):
We held in Morton v. State, 689 So. 2d 259, 264 (Fla. 1997), receded
from on other grounds in Rodriguez v. State, 753 So. 2d 29 (Fla.
2000), that a party may not call a witness primarily for the purpose of
getting an inadmissible statement before the jury as impeachment:
8
[I]f a party knowingly calls a witness for the primary
purpose of introducing a prior statement which otherwise
would be inadmissible, impeachment should ordinarily be
excluded. On the other hand, a party may always impeach
its witness if the witness gives affirmatively harmful
testimony. In a case where a witness gives both favorable
and unfavorable testimony, the party calling the witness
should usually be permitted to impeach the witness with a
prior inconsistent statement. . . . In addressing these
issues, trial judges must have broad discretion in
determining whether the probative value of the evidence
is substantially outweighed by the danger of unfair
prejudice or confusion.
Id. To determine whether a party has called a witness for the primary
purpose of introducing impeachment, Florida courts consider the
following: (1) whether the witness's testimony affirmatively harmed
the calling party, and (2) whether the impeachment of the witness was
of de minimis substantive value. See Felton v. State, 120 So. 3d 126,
129 (Fla. 4th DCA 2013); Bleich v. State, 108 So. 3d 1132, 1133 (Fla.
5th DCA 2013). Where a witness gives relevant testimony probative
of facts in dispute in addition to the impeachment, we have found no
error. See Wade v. State, 156 So. 3d 1004, 1021-22 (Fla. 2014);
Dennis v. State, 817 So. 2d 741, 761 (Fla. 2002).
In 2013, about three years before trial, Deshommes provided a positive
identification of Mathieu (though without confirming his name), in a photo array
presented to him by Detective Pacheco. Deshommes circled Mathieu’s photo and
wrote, in his own handwriting, “I selected photo number five as the person who
was the shooter.” In a pretrial sworn statement, Deshommes confirmed that
Mathieu, “the black guy,” had admitted to Deshommes that he was the person who
shot the victim, while the “white boy” was driving the white Pontiac.
9
A day after Deshommes identified Mathieu in the photo array, another array
containing the photo was shown to Garcia and Garcia also identified Mathieu as
the shooter.
During his deposition taken nearly three years after being interviewed by
Pacheco and circling Mathieu’s photo, but only a month before trial, Deshommes
had a more tangled recollection of some of the events, but he admitted that he
circled Mathieu’s photo and annotated the array in his own handwriting. He also
confirmed key portions of his prior recollection as to the events of the drug
transaction and Mathieu’s later description of Garcia’s attempt to rob Mathieu
followed by the shooting.
At trial, Deshommes initially provided most of the identification evidence
the State sought to adduce: the circled photo of Mathieu; that this was the person
sent to buy drugs from Garcia on the day of the shooting; and that he had
previously identified that person as the shooter.4 Deshommes’ vacillation during
his trial testimony was confusing and may have reduced his credibility, but the
veteran trial judge properly considered and denied the defense request to strike the
testimony altogether. The trial judge concluded that the State was surprised by the
harmful answers in parts of Deshommes’ trial testimony, and “there was plenty of
4 Mathieu contends that Deshommes testified inconsistently as to whether
Mathieu made an out-of-court admission that he was the shooter. Mathieu
argued that the state improperly sought to impeach Deshommes with
hearsay, based on Deshommes’ recantation at trial regarding that admission.
10
stuff in this [deposition] transcript and in his testimony that was necessary for this
case.”
Ultimately the trial court ruled that the State did not call Deshommes
“exclusively for—or even in large part to impeach him,” and that the actual
impeachment of Deshommes was of de minimis substantive value. The court
properly applied the tests set forth in Bradley.
Our careful review of the record does not find support for Mathieu’s
argument that impeachment was the primary purpose behind the State’s decision to
call Deshommes as a witness at trial. The evidence provided by Deshommes
confirmed the drug deal communications between Garcia and Mathieu and the
identity of the driver of the white Pontiac. Garcia confirmed Mathieu’s identity.
For these reasons, we reject Mathieu’s contention that the trial court erred in
denying the objections and motion to strike relating to Deshommes’ testimony.
The judgment and sentence below are affirmed.
11