MARCEL ASHLEY v. State, 19-0628

Background

Victim was abducted at gunpoint, forced to withdraw cash, and the assailant fled in the victim’s car; surveillance later showed two men by the vehicle.
After the video was released, Ashley’s mother (Ms. Hope) contacted police, identified her son in the footage, and signed the back of his photograph used in a photo lineup; the victim identified Ashley and he was arrested.
Ashley’s first trial resulted in a hung jury; at retrial the State sought to call Ms. Hope even though it knew she intended to invoke the Fifth Amendment and refuse to testify.
The court held an out-of-jury hearing, ordered Ms. Hope to testify, and (erroneously) adjudicated her in criminal contempt when she continued to refuse; at trial the court compelled her to take the stand where she repeatedly invoked the Fifth in front of the jury.
The State claimed it needed Ms. Hope’s testimony to establish “unavailability” to admit a recorded phone call, but the court of appeal held the call was admissible as a party admission and no public invocation of the privilege was necessary.
The appellate court concluded that forcing Ms. Hope to take the stand solely to invoke the Fifth was reversible error, the State failed to show the error was harmless, and remanded for a new trial.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether it was improper to call a witness the State knew would invoke the Fifth in front of the jury	Calling Ms. Hope to force a public Fifth invocation prejudiced Ashley by inviting inference of guilt	State argued it could call the witness and the court believed Ms. Hope had no legitimate Fifth-basis	Error to require the witness to invoke Fifth before jury; reversal and new trial; State failed harmless-error burden (DiGuilio)
Whether the recorded phone call required showing the declarant’s unavailability before admission	The recording was Ashley’s admission and admissible without proving unavailability	State claimed it needed to show unavailability to admit hearsay and thus needed Ms. Hope on the stand	Recording admissible as party admission; no need to manufacture a public unavailability showing in front of the jury
Proper contempt remedy when a witness refuses a court order to testify	Criminal contempt was improper; refusal should be addressed via civil contempt to coerce testimony	Trial court treated refusal as criminal contempt because it concluded the Fifth was not valid	Criminal contempt finding/sentence was erroneous; civil contempt is the proper coercive mechanism
Whether the propriety of the witness’s Fifth-invocation affects the error analysis	Whether invocation was valid doesn’t justify forcing the witness to invoke it publicly; prejudice may be greater if invocation protects the defendant	State argued the Fifth was not properly invoked so calling the witness was permissible	Even if invocation lacked a proper basis, requiring public invocation was impermissible and prejudicial

Key Cases Cited

Apfel v. State, 429 So. 2d 85 (Fla. 5th DCA 1983) (error to call witness known to invoke the privilege when closely identified with defendant)
Richardson v. State, 246 So. 2d 771 (Fla. 1971) (State may not call a witness it knows will assert Fifth Amendment privilege)
State v. DiGuilio, 491 So. 2d 1129 (Fla. 1986) (State bears burden to show beyond a reasonable doubt that an error was harmless)
Pedroso v. State, 450 So. 2d 902 (Fla. 3d DCA 1984) (distinguishing civil and criminal contempt remedies)
Hankerson v. State, 347 So. 2d 744 (Fla. 4th DCA 1977) (forcing a closely identified witness to invoke Fifth before jury prejudices defendant)
Pugliese v. Pugliese, 347 So. 2d 422 (Fla. 1977) (civil contempt is coercive; contemnor can purge by complying)
Hunter v. State, 8 So. 3d 1052 (Fla. 2008) (reiterating prohibition on calling witnesses expected to invoke Fifth)