Lead Opinion
Alwin C. Tumblin аppeals from a judgment of conviction of first-degree murder and a sentence of death, as well as a conviction for robbery with a firearm. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons set forth below, we reverse the convictions, vacate the sentence of death, and remand for a new trial. We conclude that reversible error occurred in the guilt phase of the trial, which affected both the guilt phase and the penalty phase, when a police officer gave his opinion of the truthfulness of a key State witness.
FACTS AND PROCEDURAL HISTORY
Overview
This case involves the May 24, 2004, murder of Jimmy Johns, the owner of Jimmy’s Auto Clinic in Fort Pierce, Florida. Forensic Pathologist and District Medical Examiner Dr. Roger Mittleman testified that Jimmy Johns died as a result of a bullet that entered the left side of his head, traveled through his brain, and lodged in the right rear portion of his brain. Gun powder stippling on the left side of Johns’ head indicated a close but not contact gun shot.
On the day of the murder, Elizabeth Hobson, who worked at the Auto Zone store across from Jimmy’s Auto Clinic, heard a gunshot as she was leaving for lunch. She saw Johns lying on the floor of his shop, and then she saw a short, stocky black “kid” running from the shop with a white towel in his hand. A minute or so later, she saw another black man come out of the shop and leave in a yellow car that looked like a retired taxicab. Another witness, Susan Ooley, also saw a yellow taxicab-like car parked near the auto shop at the time of the murder. She saw someone running from the shop but did not see anything in his hand. Employees of the shop returned from lunch a little after 1 p.m. and found Johns’ body.
Alwin C. Tumblin, age twenty-five at the time, was ultimately indicted and convicted for the murder as well as the armed robbery of Johns. During the investigation, Tumblin’s friend, Anthony Mayes, was also considered to be a suspect. When finally located by Sheriffs Department Lieutenant Dennis Smith, Mayes was handcuffed and taken into custody. He immediately said he wanted to talk, but only to Lieutenant Smith, who had previously spoken with his grandmother. Mayes was taken to the Fort Pierce police station where he
Trial Testimony
Jimmy Johns was the owner and operator of Jimmy’s Auto Clinic. On the morning of May 24, 2004, Tumblin, his girlfriend Theresa York, and his friend Anthony Mayes, were at the home of Tumblin’s sister, Rhonda Tumblin. At the time, Tumblin and York were both staying in Rhonda’s home and sleeping in her bedroom. Mayes testified that Tum-blin began “boosting” him up that morning, or attempting to persuade him to participate in a robbery and that Tumblin said he would pay Mayes $300 to act as a lookout. Mayes testified that he heard Tumblin tell York to call Wal-Mart about some bullets and that Tumblin and York then left for a short time. Mayes testified that Tumblin and York later returned to Rhonda’s home and, sometime around noon on May 24, Tumblin and Mayes left in York’s yellow Grand Marquis automobile, which looked like a retired taxicab. Mayes testified that Tumblin took a gun from the waistband of his pants and placed it under the seat of the car, and that Tumblin commented during the ride that “he was gonna kill everybody that exists as if whoever is in there.”
Mayes testifiеd that when Johns approached them, Tumblin first asked him about a car part but then asked, “Where is it at?” When Johns indicated that he did not understand, Tumblin asked, “Where is the money at?” Mayes testified that after Johns gave Tumblin money and a money clip from his pocket, Tumblin pulled the gun from the back of his pants waistband and held it to Johns’ head. Mayes reported that Tumblin asked Johns, “What you think about this?” According to Mayes, Tumblin then pulled the trigger, killing Johns, who was sixty-seven years old. Mayes said that as he started to run away, he saw Tumblin go toward Johns’ office, where it was later discovered that envelopes with checks to pay the shop’s bills were missing.
When Tumblin returned to his sister’s house, Jean Nicole Ruth, a friend оf Mayes, heard Tumblin say, “The cracker
When the police went to Rhonda’s house to investigate, Officer Kathleen Murphy saw a black woman flee the home through a window. The woman was later identified as Jean Nicole Ruth. A search warrant was obtained to search the house, and the search revealed a .32 caliber revolver under some clothes on a chair in the room where Tumblin and York had been sleeping. Four Remington-Peters bullets were found under a pillow on a bed. Evidence at trial shоwed that at 9:53 a.m. on May 24, 2004, a person with a birth date of November 11, 1981, bought Remington-Peters ammunition at the Fort Pierce Wal-Mart. Theresa York’s birth date, according to her driver’s license, is November 11,1981.
Fort Pierce police officer Hall Soloman found an expended pistol cartridge lying outside the auto repair bay door at the crime scene and found an unfired Remington-Peters bullet inside the doorway of the bay. Mark Chapman, firearms expert with the Indian River Crime Laboratory, testified that the bullet removed from Johns’ brain and the cartridge casing found at the scene were fired from the same .32 caliber revolver found in the search of Tumblin’s sister’s home.
The Verdict and Sentence
On a speсial verdict form, the jury found Tumblin guilty of both premeditated and felony murder. The jury also found him guilty of robbery with a firearm. The case proceeded to the penalty phase on June 25, 2007, after which the jury unanimously recommended a sentence of death. In the sentencing order entered on September 25, 2007, the court found the following aggravators: (1) Tumblin had prior convictions for felonies involving the use or threat of violence (great weight); (2) the murder was committed while the defendant was engaged in commission, attempt to commit, or flight after commission of a robbery, merged with the aggravator that
ISSUES ON APPEAL
Tumblin raises three guilt phase issues in this appeal.
Sufficiency of the Evidence
Before remanding for a new trial, we must analyze the sufficiency of the evidence because if there was insufficient evidence on which to convict Tumblin of this murder, it is our obligation to reverse the convictions with directions to grant judgments of acquittal. See McDuffie v. State,
The evidence, the most incriminating of which was presented through the testimony of Anthony Mayes, was sufficient for the jury to find that he and Tumblin went to Jimmy’s Auto Clinic to perpetrate a robbery and that, once there, Tumblin demanded and received money from Johns. According to Mayes, Tumblin took a handgun with him in the car and that on the way to the auto shop, Tumblin announced that he planned to kill anyone there who either “existed” or “resisted”— Mayes was not sure which word was used. Mayes also testified that after Tumblin was given money by Johns, who did not resist, Tumblin put a gun close to Johns’ head and pulled the trigger. The medical examiner testified that Johns died from a single gunshot to his left temple and that gunpowder stippling around the entry wound showed the shot to have been fired from very close range. Thus, sufficient competent, substantial evidence supports the jury’s verdict and the judgment of conviction for first-degree murder. We turn now to examination of the testimony of Lieutenant Smith, which we conclude contаined error that deprived Tumblin of a fair trial and which necessitates our reversal for a new trial.
The Testimony of Lieutenant Smith
Tumblin contends that the trial court abused its discretion in denying his motion for mistrial made during Lieutenant Dennis Smith’s testimony when Smith testified that he told Detective Coleman he thought that Mayes would tell him the truth. As explained below, we agree that a mistrial should have been granted. Tumblin also contends that the trial court abused its discretion in allowing Lieutenant Smith to tell the jury about Mayes’ prior statement that was consistent with his trial testimony. Although we do not find merit in this claim, we discuss it in some detail because the content and chronology of the testimony of Mayes and Smith are important to our discussion of this issue.
Mayes testified first and told the jury that Tumblin had convinced him to participate in the robbery and that once at Jimmy’s Auto Clinic, Tumblin robbed Johns and without provocation shot him in the head at close range. Later during that same day of trial, Lieutenant Smith, an officer with the St. Lucie County Sheriff s Department, testified that he arrested Anthony Mayes on July 9, 2004. Mayes was anxious to talk to Smith about the crimes and, even though Smith urged Mayes to wait for the other officers in charge of the investigation, Mayes did recount details of the crime first to Smith. Over objection,
Q. [prosecutor]: Lieutenant, go ahead, what did Mr. Mayes tell you?
A. [Smith]: He told me about being at a house, I believe, on 14th Street earlier in the day, the day of the homicide with the subject he referred to as Man. He told me that Man was — he used the term “boosting.” I understood that to mean encouraging, persuading him to go do a robbery with Man. That Man and his girlfriend went to Wal-Mart to get a box of ammunition, that they called there first. That Man promised him $300 from the proceeds of the robbery. That he told him that — that Man told him that if the victim bucked, meaning if he resists or bucked up, that he was gonna cap him.
Q. Go ahead.
A. And that they went to do the robbery. That he saw Man shoot the victim in the head, told us approximately how far away he was when that occurred.
Q. How far away who was?
A. Mayes. How far away — he told us approximately how far away Mayes was and how far away from the victim Man was when he fired the shot.
Q. How close did he say Man was to the victim when he shot him?
A. As I recall, he — he—very close. I think he may have even stuck the gun to his head.
This prior statement was consistent with the trial testimony Mayes had given earlier that day.
“Generally, prior consistent statements are inadmissible to corroborate or bolster a witness’s trial testimony” because they are usually hearsay, but a prior consistent statement may be admitted as non-hearsay if certain cоnditions are met. Taylor v. State,
In reviewing the trial court’s decision to admit Mayes’ prior consistent statement in this case, our standard of review is abuse of discretiоn. See Hudson v. State,
The cross-examination of Mayes impliedly charged that Mayes testified as he did at trial due to improper influence and that his trial testimony was a recent fabrication intended to preserve his plea deal. Both-of these grounds are a basis for admission of prior consistent statements under section 90.801(2)(b), Florida Statutes. Thus, the admission of Mayes’ prior consistent statement was not an abuse of discretion. See Chamberlain v. State,
During Lieutenant Smith’s direct examination testimony, immediately after Smith recounted Mayes’ prior consistent statement to the jury, the following colloquy occurred:
Q. [prosecutor to Lt. Smith] Did you then recount that or summarize that statement that he gave you to Detective Coleman and Investigator Hamrick when they returned?
A. [Lt. Smith] Yes.
Q. Did you — when you recounted this — when you recounted his version, did yоu add anything or suggest anything he should say in the future?
A. Only — no, nothing in particular that he should say. I did assure Detective Coleman in front of Mayes that I felt like Mayes would — would tell him the truth.
(Emphasis added.) Tumblin’s counsel objected to this comment on Mayes’ veracity, and the trial court struck the comment. The trial court agreed with Tumblin that Smith “was vouching to another officer that he felt like [Mayes] was going to tell him the truth.”
“[Allowing one witness to offer a personal view on the credibility of a fellow witness is an invasion of the province of the jury to determine a witness’s credibility.” Seibert v. State,
The case of Acosta v. State is illustrative of the similar problem we face in this case. In Acosta, the district court reversed the conviction for uttering a forged instrument and grand theft because of a statement by a police officer witness that bolstered the credibility of a key state’s witness, Sarah Riley, who had been involved with Acosta in the crimes.
Riley was the key witness for the state, and the state’s case hinged primarily on her credibility. She was an admitted participant in the crime, but was not charged. She testified that she had not, but that the appellant had forged the check. The state’s handwriting expert could only corroborate her testimony to the extent he believed it was “probable” that it was appellant’s handwriting. He found significant similarities between the signature on the check and appellant’s handwriting, and dissimilаrities which could not be accounted for. This expert has various classifications which he uses to explain the strength of his opinion, and this classification was third from the strongest.
Because Riley’s testimony was crucial and the defense’s main emphasis was on her lack of credibility, we cannot agree with the State that the error was harmless or that it was cured by the instruction. We therefore reverse and remand for a new trial.
Id. Similarly, in the instant case, the trial court sustained the objection, struck the comment, and later gave a curative instruction.
Other than Anthony Mayes, is there any evidence that Alwin Tumblin shot Jimmy Johns? The answer is no, it’s all circumstantial and nobody puts him on the scene, nobody sees what happened, nobоdy saw him with a gun that day, nobody said he drove over there that day. Everything that places him at the scene and committing that murder comes from Anthony Mayes.
The trial court also questioned whether the State could prove premeditation without Mayes’ testimony. Smith’s testimony concerning Mayes’ truthfulness occurred after the jury heard Mayes’ version of events, which also matched Mayes’ prior consistent statement related by Smith to the jury. Because Mayes gave the same version of events to Lieutenant Smith informally that he testified to at trial, Smith’s vouching for his truthfulness could be reasonably inferred by the jury to extend to Mayes’ veracity at trial. Under these circumstances and the facts of this case, in which Mayes gave the only eyewitness testimony that Tumblin committed the murder and did so in a premeditated manner, we conclude that the trial court abused its discretion in denying the motion for mistrial.
We also find that Mayes’ critical eyewitness testimony in the guilt phase was an essential component of the evidence of aggravation relied upon by the State and the court in the penalty phase. The trial court found that the murder was committed in a cold, calculated, and premeditated manner (CCP) based in large part on Mayes’ testimony that Tumblin took a gun from the waistband of his pants and coldly aimed it at Johns, asking, “What you think about this?” This evidence came solely from Mayes. The trial court also relied on Mayes’ testimony that Tumblin convinced him to commit the robbery and be a lookout. Again, this fact came only from Mayes. In finding CCP, the trial court also relied on Mayes’ testimony that on the way to Jimmy’s Auto Clinic, Tumblin told Mayes he would kill everybody “that exists” there. The trial court noted evidence from Mayes that he did not know where the robbery would occur and Tumblin had chosen the target business in advance. The trial court also cited testimony that came only from Mayes that Johns did not resist in any way before being shot.
The heavy reliance by the trial court on testimony given by Mayes.in establishing CCP is summed up in the following excerpt from the sentencing order:
In the days, hours and minutes preceding this robbery and murder, the Defendant procured a firearm, obtained ammunition, secured an accomplice (Anthony Mayes), stayed at his sister’s house in Fort Pierce the night before, drove to Jimmy’s Auto Clinic with Anthony Mayes proclaiming that he would commit murder in the process, found Jimmy Johns alone at Jimmy’s Auto Clinic, robbed him without incident and then shot him in the head, execution-style. It is noteworthy that neither the Defendant nor Anthony Mayes attempted to disguise their identities. Further,*1104 the Defendant chose to drive to and flee from the murder scene in an emphatically distinct, yellow taxicab-looking car. Also, the Defendant engaged the victim in a convеrsation about a car part before asking Mr. Johns where the money is. In this otherwise well-planned and orchestrated “robbery” the Defendant took no precautions to prevent or minimize his identification by any would-be victim. To be sure, he had no intentions of leaving any survivors as further evidenced by his statement to Anthony Mayes before the robbery and murder [that he would kill anyone who exists there].
Thus, it can be seen that Anthony Mayes’ testimony — and his credibility before the jury and the court — was instrumental in the jury finding Tumblin guilty of first-degree premeditated and felony murder and in the trial court finding that the murder was cold, calculated, and premeditated. Because Lieutenant Smith improperly volunteered testimony that essentially vouched for Mayes’ credibility in a manner that tied his credibility both to the version of events Mayes gave to officers prior to trial and to the same version of events he gave the jury during trial, we conclude that Tumblin did not receive a fair trial. Although the trial court correctly recognized the error, struck the testimony, and later gave a curative instruction, these corrective measures could not erase the inescapable impression upon the jury that Lieutenant Smith believed the version of events testified to by Mayes was truthful.
Under the facts and circumstances present in this case, we find that Smith’s testimony that he believed Mayes would tell the truth deprived Tumblin of a fair trial. We are thus constrained to reverse and remand for a new trial. This reversal and remand for a new trial obviates the need for us to reach any of the penalty phase claims or the issue of proportionality in this case.
CONCLUSION
Accordingly, for the reasons explained above, we reverse Tumblin’s convictions and sentences, and we remand for a new trial.
It is so ordered.
Notes
. Miranda v. Arizona,
. Lieutenant Smith was with the Sheriff's Department but was working with the Fort Pierce Police Department in a violent crimes unit.
.Mayes explained that Tumblin said he would kill anyone who "existed" or "resisted" in the shop — Mayes could not reсall which term was used. Mayes told Lieutenant Smith that Tumblin said he would kill anyone who "bucked.”
. Although the murder weapon was a revolver, which normally retains the spent cartridges in the chambers, the evidence showed that the cylinder of this revolver was faulty and would fall open if not manually held closed.
. The guilt phase issues raised by Tumblin are: (1) whether the trial court erred in letting Lieutenant Smith, a senior police officer, testify to Anthony Mayes' prior consistent statement; (2) whether the trial court abused its discretion in denying Tumblin’s motion for mistrial when Lieutenant Smith testified that he told another officer that Anthony Mayes would tell him the truth; and (3) whether the trial court reversibly erred in failing to conduct a prоper hearing pursuant to Richardson v. State,
The penalty phase issues raised in this appeal, but not reached in this opinion are: (1) whether the court erred in instructing the jury and in finding that the homicide was committed in a cold, calculated, and premeditated manner; (2) whether the court failed to properly find and evaluate mental mitigation; (3) whether the death penalty is disproportionate; (4) whether the court erred in allowing Tum-blin to choose the penalty phase witnesses; (5) whether the court properly evaluated admissible hearsay evidence in the penalty phase; (6) whether the court erred in overruling Tumblin's objection to victim impact evidence that Johns’ wife suffered a stroke; (7) whether the court erred in allowing aggravation evidence of prior felonies that were not violent felonies; and (8) whether the court erred in denying Tumblin's special verdict form and instructions for aggravators.
. During the testimony of Jean Nicole Ruth, it was disclosed before the jury that she had recently been shot in an incident unrelated to the case and was taking hydrocodone medication at the time of her testimony. Although we do not discuss the third guilt phase clаim, we remind trial judges that in conducting a Richardson inquiry after a discovery violation has occurred, the court should make express findings concerning whether the discovery violation (1) was willful or inadvertent; (2) was substantial or trivial; and (3) had a prejudicial effect on the aggrieved party’s trial preparation. Richardson,
. The trial court took the motion for mistrial under advisement over the weekend and, after considering additional research and argument of counsel, denied the motion on the following Monday. Consequently, the curative instruction was given several days after Lieutenant Smith's actual testimony and made no specific reference to Smith’s tеstimony. It simply advised the jury, "You are hereby instructed that the believability or credibility of all witnesses testifying in this case is within the exclusive province of the jury'. Please disregard any suggestion to the contrary.”
Dissenting Opinion
dissenting.
I disagree with the majority’s conclusion that the trial court’s denial of Tumblin’s motion for mistrial constituted an abuse of discretion. I would affirm Tumblin’s convictions and sentences because I conclude that there is no basis for reversal.
Under the abuse of discretion standard that governs our review of the trial court’s denial of the mistrial motion, “the trial court’s ruling should be sustained unless no reasonable person would take the view adopted by the trial court.” Overton v. State,
Given this rule, which governed the trial court’s consideration of the motion for mistrial, it is unwarranted to conclude that “no reasonable person would take the view adopted by the triаl court” in denying the motion. Overton,
I acknowledge that this Court has recognized that allowing “a police witness to give his opinion of a witnesses] credibility” is “especially harmful.” Seibert v. State,
Here, the context supports the conclusion that a reasonable trial judge could decide that striking the improper testimony and giving a curative instruction would be adequate “to ensure that the defendant receive[d] a fair trial”. Cole,
Although Mayes’ testimony clearly was a significant part of the State’s case аgainst Tumblin, it is unjustified to conclude that “the state’s case hinged primarily on [Mayes’] credibility.” Acosta v. State,
The trial court did not abuse its discretion in determining that Tumblin was not entitled to a mistrial. The convictions and sentences should be affirmed.
POLSTON, J., concurs.