author: PER CURIAM.

text:
    Roy Lee McDUFFIE, Appellant, v. STATE of Florida, Appellee.
    No. SC05-587.
    Supreme Court of Florida.
    Nov. 21, 2007.

      Todd G. Scher, Miami Beach, FL, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, FL, and Barbara C. Davis, Assistant Attorney General, Daytona Beach, FL, for Appellee.
   PER CURIAM.

Roy Lee McDuffie appeals his convictions of first-degree murder of Dawniell Beauregard and Janice Schneider, robbery with a firearm, and false imprisonment while armed and his sentences of death for the murders. We have mandatory jurisdiction. See art. V, § 3(b)(1), Fla. Const. We conclude that errors occurred during the course of the trial which, when viewed cumulatively, are not harmless beyond a reasonable doubt. Therefore, we reverse McDuffie’s convictions, vacate his sentences, and remand for a new trial. Because we conclude that reversible error occurred in the guilt phase of the trial, we do not discuss the penalty phase issues.

FACTS

This case involves the October 25, 2002, murders of Dawniell Beauregard and Janice Schneider, two employees of the Dollar General store on Deltona Boulevard in Vo-lusia County. Several hours after 8 p.m., the normal closing time for the store, Beauregard and Schneider were found shot to death in the back office of the store after a family member reported Schneider missing. The exact time that Beauregard and Schneider were shot is unknown, but popping sounds were heard from the vicinity of the Dollar General around 9:10 p.m. Both victims died from close contact gunshots to the head, although each had cutting wounds on their necks. Additionally, Schneider had a gunshot wound to her abdomen. Beauregard, whose mouth was taped, was bound with duct tape on her hands and feet. It appeared that Schneider, who was not bound with tape, had been able to cut the duct tape on Beauregard’s feet before being killed. The store was found with the lights on and the doors locked. Cash from that day in the amount of $4,946.17, along with checks in the amount of $1,467.76, were missing. The money, checks and bank bag were never recovered. The murder weapon was also never found.

Roy McDuffie was eventually charged with the murders but the only physical evidence linking him to the crimes was a partial palm print on duct tape taken from Beauregard’s wrists. McDuffie, who was an employee of Dollar General at the time, testified at trial that he had used the tape earlier that day to assist a customer who needed some boxes assembled. Other circumstantial evidence and an eyewitness identification linked McDuffie to the scene close in time to when the murders probably occurred. The eyewitness identification, although admissible, was subject to challenge.

We discuss the evidence in detail because, although there was competent, substantial evidence to support the jury’s verdict, the State has not demonstrated that the errors that occurred were harmless beyond a reasonable doubt. The evidence at trial revealed that McDuffie, a local youth-league football coach, had been hired as an assistant manager trainee for Dollar General earlier that week and had been training at the Deltona store. Because his second car had been repossessed, he and his wife, Troy, were carpooling. McDuffie took his wife to her nursing assistant job Friday, October 25, and then went to The Coca-Cola Company offices where he filled out papers for a new job he had just accepted — a fact he had shared with his immediate supervisor, Linda Torres, but no one else. He planned to work just one week at Dollar General and then take the Coca-Cola job on the following Monday.

McDuffie attended a Dollar General meeting at another location for most of the afternoon, then picked up his wife from her job at about 5:15 p.m. and drove to the Deltona Dollar General. Troy McDuffie stayed in the store for a while and then went next door to the Winn-Dixie to buy a money order. As closing time approached, she left the store and sat in the car to wait for McDuffie where she reclined in the seat and rested.

Employee Carol Hopkins was working the cash register at the front of the store while McDuffie, Schneider, and Beauregard did the closing procedures. This involved cleaning up the store, counting the cash in the cash register drawers and cash that had been placed in the safe during the day, and preparing the bank deposit bag into which the day’s cash and checks would be placed. This nightly closing procedure usually took thirty to forty-five minutes to complete.

After locking up the store at 8 p.m., Beauregard and McDuffie stayed mainly in the back office counting out the cash register drawers and filling out the paperwork for the bank deposit. A tear off tag from the bank deposit bag — something that is one of the last things done during closing — bore both Beauregard’s and McDuf-fie’s signatures, indicating McDuffie was still in the store at that point in the process. Beauregard had banded the money, sealed and pulled off the tab from the bank deposit bag, and locked the bag in the safe. They then left the office, locked the office door, and went to the front of the store to do a final register reading.

Store policy required that there always be two people in the office with the cash, and that if three or fewer employees close the store, they must always leave together. Because there were four employees in the store that evening, and cashier Carol Hopkins’ register had been counted, she clocked out at 8:34 p.m. and asked if she could leave for the day. As she was leaving the Dollar General, she saw two men sitting on a bench outside the store, which she thought was suspicious. She later gave law enforcement investigators descriptions of the men and composite drawings were created based on her descriptions.

Olivia Sousa was working that night at her restaurant in the Deltona Plaza where the Dollar General is located. Around 9:30 p.m., she walked to the Winn-Dixie and on her way back to the restaurant, she saw a black man inside the Dollar General walking toward the back of the store. She did not see his face but he was wearing a black shirt and tan pants, which was the Dollar General uniform. Earlier in the week she had noticed a black man, who was a new employee, working in the store. McDuffie was the only black employee working at the Deltona store that week. Ms. Sousa could not say the man she saw on October 25 was that same man, but he appeared to have a similar build.

At approximately 9:27 p.m., Alex Matías was standing next to his truck in the parking lot in the vicinity of the Dollar General and the Winn-Dixie talking on his cell phone. He noticed the Dollar General store lights were still on. This was unusual because the store closes at 8 p.m. and the lights are usually off by 8:45 p.m., a fact known to him because he used to work at the Dollar General. Matías testified that he saw a black male unlock the Dollar General door from the inside, open it, re-lock it, go to a dark-colored car in the parking lot, and open the car’s back door. The man then shut the car door, returned to the store, unlocked the door, entered, and relocked it. Each locking and unlocking procedure required a separate key. This same process happened a second time. Matías did not see anyone in the car and did not see the man carrying anything to the car.

Matías was a friend of Dawniell Beauregard’s sister, Crystal, and spoke with her the day after the murders. At her urging, he called the Sheriffs office and met with investigators to report what he had seen. Matías met with police and gave a composite description of a black male, between six1 feet and six feet three inches tall, mid-twenties to late-thirties, heavy build, darker than normal complexion, clean shaven, hair short on top with shaved sides, wearing a knit, collared, dark shirt over a white undershirt, and dark-colored long pants. The man was about fifty feet away, but looked right at Matías. In contrast, although McDuffie was in his late thirties, he was five feet seven inches tall, wearing a dark shirt and tan pants while working in the store that night.

When McDuffie was arrested on December 17, 2002, Matías saw his picture on television and believed McDuffie was the man he saw that night at the Dollar General. However, it was not until April 2003 that he told a Sheriffs investigator that he thought the man he saw on television was the same man he saw October 25, 2002, at the Dollar General. Based on information given to him by the investigator, Matías wrote a letter requesting the $10,000 reward offered by Dollar General. Matías agreed that it was likely that if he did not come to court and identify McDuffie, he would not get the reward. He did receive the reward, however, prior to the time of the trial.

Sheriffs investigators interviewed McDuffie in the early morning hours after the murders were discovered and again some days later. McDuffie told investigators he left the store that night shortly after Carol Hopkins left. He said that he and his wife drove approximately forty-five minutes to an Aaron’s home furnishing rental center to put Troy’s money order payment in the night drop box. He said they arrived about 9:35 p.m. and then drove to a nearby McDonald’s for some food. McDuffie estimated he arrived home by about 10:15 p.m., but the evidence established that he could not have reached Aaron’s before 10:30 p.m. A videotape taken at McDonald’s showed McDuffie buying his food there at 10:34 p.m.

The only physical evidence linking McDuffie to the crimes was a partial palm print matching the upper portion of McDuffie’s right hand, which was found on a reconstructed strip of Dollar General duct tape taken from around Beauregard’s wrists. The State’s latent print examiner testified that a palm print could, under certain circumstances, be transferred from one portion of duct tape to another if the tape was pressed together. This was one hypothesis offered by the defense for how the print could have been located where it was on the tape.

Evidence found at the scene also included: a box cutter blade with both victims’ blood found wrapped in bloody paper towels (Schneider’s blood) stuffed into Schneider’s purse; unidentified hair found in the same bloody paper towels; bloody scissors found on the floor under and between Schneider and Beauregard; a bloody screwdriver found in the office; a cardboard box by the office door with Schneider’s blood on it; another pair of scissors with the victims’ blood found on the desk; and unidentified female blood found on the inside handle of the restroom door and on the floor of the restroom.

No hair, fiber, or DNA connected McDuffie to the crime. A Pepsi bottle near the office had McDuffie’s DNA on it but no evidence indicated when McDuffie drank the soda or placed the bottle there. The bullets that killed Schneider and Beauregard were .22 caliber subsonic sniper-type rifle bullets that can also be fired from a handgun, but the gun was never found and there was no evidence linking McDuffie to a gun.

A substantial portion of the State’s case was devoted to establishing a motive by showing the dire financial condition in which McDuffie found himself in September and October 2002. This evidence included these facts: McDuffie’s car had been repossessed; he had been unemployed for a month; he had been evicted from his rented residence; he owed back rent, current rent and a security deposit; and he was being dunned by creditors. The State produced evidence that early on Saturday, October 26, McDuffie purchased three money orders totaling $1,450, which were later given to his new landlord for the rent and the security deposit due on McDuffie’s new rental residence.

McDuffie testified in- his own defense that he left the store shortly after Carol Hopkins and had nothing to do with the crimes. The defense crime scene reconstruction expert testified that based on the number of weapons, the two open rolls of paper towels found in the storeroom, the differing wounds inflicted, the difficulty of handling two victims and binding one with duct tape, and the unidentified hair and female blood found at the scene, it was likely that there were two perpetrators. The defense also presented the testimony of jail inmate Kevin Ingram who said another inmate, Michael Fitzgerald, a white male, had confessed to involvement in the crimes. Michael Fitzgerald testified, denying involvement in the crimes and claiming that while he was in jail he heard McDuffie confess to the crimes.

The jury found McDuffie guilty of the first-degree murders of Janice Schneider and Dawniell Beauregard, robbery with a firearm, and false imprisonment with a firearm. The case proceeded to the penalty phase after which the trial court sentenced McDuffie to death for each of the murders. McDuffie was also sentenced to life in prison for his conviction of robbery with a firearm and to a term of fifteen years for his conviction of false imprisonment while armed.

ISSUES ON APPEAL

McDuffie raises ten issues on appeal. We discuss three of these issues in detail— the exclusion of Wiggins’ testimony, the limitation on cross-examination of witnesses Matías and Hopkins, and the Ped-erson voice mail testimony. We do so because we conclude that the trial court’s rulings on these issues constitute reversible error in the guilt phase. We also discuss sufficiency of the evidence.

Defense Richardson Violation

McDuffie’s first issue on appeal is his claim that the trial court erred in excluding the testimony of defense witness Wiggins based on a Richardson violation committed by the defense. The defense called McDuffie’s friend, Anthony Wiggins, to testify during the guilt phase that Wiggins had, in the weeks before the murders, sent McDuffie two Western Union money transfers totaling $840. McDuffie and his wife had testified that a number of individuals loaned or gave them money in mid-October, which could' account for some of the cash McDuffie had on the day after the murders and help rebut the State’s contention that McDuffie was desperate over his poor financial condition. Wiggins was the only non-family member who could testify that he loaned money to McDuffie in October.

The State objected to Wiggins’ testimony because he had been listed only as a penalty-phase witness and not as a guilt-phase witness, and because the defense had just that morning produced Wiggins’ $40 Western Union transfer receipt dated October 18, 2002, which the State had not had time to explore or verify. Defense counsel explained that Wiggins was inadvertently listed only for the penalty phase and that Wiggins had just given counsel the $40 Western Union receipt that day. Defense counsel offered to call Wiggins later or the next day.

The prosecutor responded: “I mean, I’m totally unaware of what this person is going to say and I’m sure that I can probably deal with it at this point in time. But the problem is it is a surprise.” (Emphasis added.) The trial court announced that the defense had committed a Richardson discovery violation which prejudiced the State and that Wiggins’ testimony would be excluded.

On proffer, Wiggins, a barber, testified that he had been a friend of McDuffie for nine or ten years and used to cut his hair in Jacksonville. Wiggins said he wired $40, for which he had a Western Union transfer receipt, to McDuffie on October 18, 2002. He testified that he also loaned McDuffie $300 via Western Union earlier that same week, for which he did not have a receipt.

The court, finding that a Richardson violation had occurred and concluding that the State was prejudiced, excluded both the Western Union receipt and Wiggins’ testimony without exploring any alternatives, such as a short delay for a deposition, a continuance, or presentation of the witness later in the week as suggested by the defense. Importantly, the State never specifically asked the court to exclude the witness, nor did the State request any lesser remedy, such as a short delay to depose Wiggins. During closing argument, the State stressed that the purported undocumented loans to McDuffie were from “just the family” and were not credible.

Where exclusion of evidence or other sanction is sought because of a discovery violation, Richardson holds that the trial court’s discretion can be properly exercised only after an adequate inquiry is made into three areas: (1) whether the discovery violation was willful or inadvertent; (2) whether it was trivial or substantial; and (3) whether it had a prejudicial effect on the opposing party’s trial preparation. 246 So.2d at 775. Prejudice in this context means procedural prejudice significantly affecting the opposing party’s preparation for trial. See, e.g., Scipio v. State, 928 So.2d 1138, 1146 (Fla.2006). This Court will review the record to determine if this full inquiry was made and if the trial court’s actions pursuant to the inquiry were proper. The same rules apply and the same procedure must be followed regardless of which party commits the discovery violation, but additional constitutional considerations are involved when a defense witness is excluded. This is because “[t]here are few rights more fundamental than the right of an accused to present witnesses in his or her own defense.” Alexander v. State, 931 So.2d 946, 950 (Fla. 4th DCA) (quoting Jenkins v. State, 872 So.2d 388, 389 (Fla. 4th DCA 2004)) (alteration in original), review denied, 944 So.2d 988 (Fla.2006).

In this case, defense counsel explained that Wiggins’ name had been inadvertently listed as only a penalty-phase witness and not as a guilt-phase witness. The trial court did not find the violation to be willful and never inquired into whether the violation was substantial or trivial. The trial court made only a limited inquiry into whether the violation prejudicially affected the State’s ability to prepare for trial. Here, the State, as the aggrieved party, failed to assert that it would suffer any substantial procedural prejudice if Wiggins were allowed to testify. Instead, the prosecutor tempered his mild claim of prejudice by stating, “I’m sure that I can probably deal with it at this point in time. But the problem is it is a surprise.” Notwithstanding that concession, the trial court immediately excluded Wiggins’ testimony and evidence without exploring what substantial procedural prejudice would accrue to the State if he testified.

We are mindful that Florida Rule of Criminal Procedure 3.220(n)(1) authorizes a trial court to exclude evidence as a sanction for a violation of the discovery rules, but this sanction should only be imposed when there is no other adequate remedy. Furthermore, where as here the violation has not been- found to be willful or blatant, this sanction is generally too severe “when the only prejudice to the State is its inability to obtain evidence for impeachment of the witness.” Grace v. State, 832 So.2d 224, 227 (Fla. 2d DCA 2002); cf. Taylor v. Illinois, 484 U.S. 400, 415, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988) (holding that if the failure to disclose a defense witness was “willful and motivated by a desire to obtain a tactical advantage that would minimize the effectiveness of cross-examination and the ability to adduce rebuttal evidence, it would be entirely consistent with the purposes of the Compulsory Process Clause simply to exclude the witness’s testimony”). In this case, the trial court did not make a finding that the defense discovery violation was willful or intended to gain a tactical advantage, but the court excluded otherwise admissible evidence based on the State’s surprise and asserted difficulty in obtaining evidence with which to impeach Wiggins. Even if the inability to obtain impeachment evidence by the State were considered a substantial procedural prejudice, the trial court’s required inquiry does not stop there.

“First, the judge must decide whether the discovery violation prevented the aggrieved party from properly preparing for trial. Second, the judge must determine the appropriate sanction to invoke for the violation.” Smith v. State, 372 So.2d 86, 88 (Fla.1979); see also Snelgrove v. State, 921 So.2d 560, 567 (Fla.2005) (“Richardson mandates that once a discovery violation is revealed, the trial court must conduct an inquiry to determine the sanctions that should be imposed on the violating party.”).

Where the issue involves possible exclusion of defense evidence, the “extreme sanction of excluding [defense] evidence ... should be used only as a last resort” and “it is incumbent upon the trial court ... to determine whether any other reasonable alternatives can be employed to overcome ... possible prejudice,” including declaration of a mistrial. Casseus v. State, 902 So.2d 294, 295 (Fla. 4th DCA 2005) (quoting State v. Eaton, 868 So.2d 650, 653 (Fla. 2d DCA 2004)); see also Tomengo v. State, 864 So.2d 525, 530 (Fla. 5th DCA 2004) (stating that exclusion of a defense witness because of a defense disclosure violation is a severe sanction that should be a last resort reserved for extreme or aggravated circumstances); Livigni v. State, 725 So.2d 1150, 1151 (Fla. 2d DCA 1998) (stating that the severe sanction of defense witness exclusion for witness list violation should be a last resort reserved for extreme or aggravated circumstances).

When, as in this case, the discovery violation is committed by the defense, special importance attaches to the trial court’s inquiry into alternative sanctions because exclusion of exculpatory evidence implicates the defendant’s constitutional right to defend himself or herself. See Alexander, 931 So.2d at 950; see also McBride v. State, 913 So.2d 696, 699 (Fla. 1st DCA 2005) (holding that a criminal defendant has a due process right to present evidence and that exclusion of evidence for a defense discovery violation should be imposed only if no other remedy suffices). In this case, the trial court did not consider whether another course of action could remedy or mitigate any procedural prejudice to the State, even though the defense offered to call the witness later. The trial court could have allowed a brief delay for a deposition or Wiggins’ testimony could have been postponed until the end of the defense case.

Accordingly, we conclude that the trial court erred when it failed to conduct an adequate Richardson inquiry and excluded the testimony of the defense witness without considering less extreme alternatives. The failure to consider less extreme alternatives is of even greater significance here because the prosecutor actually stated that he could deal with the witness. Although we no longer adhere to a strict standard of per se reversible error and a harmless error analysis is proper, Scipio, 928 So.2d at 1146, we will analyze this error cumulatively with the other errors that we conclude also occurred.

Restrictions on Cross-Examination

McDuffie’s second issue on appeal relates to the trial court’s restriction on cross-examination of witnesses Carol Hopkins and Alex Matías concerning photographs of two men, Steve Absalon and Michael Fitzgerald, who resembled the two men sitting outside the store at closing. Carol Hopkins, the last cashier to leave the store that evening, reported that two “suspicious” men were sitting outside the Dollar General when she left. She assisted investigators in preparing composite drawings of the men. The defense attempted to cross-examine Hopkins concerning a photograph of Absalon, a black male who resembled McDuffie and had a prior association with the same -shopping plaza in which the Dollar General is located. Hopkins testified on proffer, that she was “fairly certain” that the photograph of Absalon depicted the black male who was sitting with a white male outside the Dollar General.

The defense also attempted to cross-examine Hopkins concerning a photograph of Fitzgerald. She testified on proffer that the man in the photograph looked like the white male who was also sitting on the bench outside the Dollar General. Jail inmate Kevin Ingram later testified that Fitzgerald had confessed, to being involved in the Dollar General crimes. Evidence also established that Fitzgerald used to date Dawniell Beauregard’s sister, Tammy, and is the father of her two children. He had been to the Dollar General store in the past when Beauregard was working there as a cashier. Fitzgerald testified that on the night of October 25, 2002, he had ridden in a dark blue car with two black males and had been buying and smoking crack cocaine. He admitted lying to police concerning his whereabouts that night when questioned about an unrelated incident because, he said, he did not want the police to know he had been smoking crack cocaine. At the time he testified, Fitzgerald was in prison for armed robbery.

The defense attempted, unsuccessfully, to cross-examine Alex Matías about Absal-on’s photograph. Matías testified for the State that he saw a black male leaving and re-entering the Dollar General about 9:27 p.m. on the night of the murders. Matías assisted investigators in preparing a composite drawing of the man he saw that night, but portions of the face in the drawing were left blank. He described the man as being in his mid-twenties to late-thirties, over six feet tall, and wearing a dark shirt and dark-colored pants. (McDuffie was thirty-nine years old, approximately five feet seven inches tall, and was wearing tan pants that night.) In December 2002, Matías saw a photograph of McDuffie on television news and believed him to be the man he saw at the Dollar General on October 25. Matías did not report this information to law enforcement officers until April and he collected a $10,000 reward for his information in July 2003.

The State argues that the restriction upon cross-examination concerning the photographs of Absalon and Fitzgerald was proper because the trial court had previously ruled that the defense could not present reverse Williams rule evidence that Absalon had committed an armed robbery in the same shopping plaza and that Fitzgerald had committed several armed robberies. The trial court ruled that the defense could not present, as reverse Williams rule evidence, the fact that in June 2003 Michael Fitzgerald committed several robberies of convenience stores that were open for business by displaying but not discharging a firearm, because the facts of those robberies were not sufficiently similar to the crimes for which McDuffie was on trial. For this same reason, the trial court also ruled that the defense could not present evidence that Steve Absalon and an accomplice, while wearing masks and displaying but not discharging a firearm, had previously robbed a bank in the same shopping plaza where the Dollar General is located. The trial court concluded that evidence of the crimes committed by Fitzgerald and Ab-salon was inadmissible as reverse Williams rule evidence because it was not of such nature that it would be admissible if either of those people were on trial for the present offenses. See State v. Savino, 567 So.2d 892, 894 (Fla.1990) (“If a defendant’s purpose is to shift suspicion from himself to another person, evidence of past criminal conduct of that other person should be of such nature that it would be admissible if that person were on trial for the present offense.”). We conclude that the trial court did not err in prohibiting the presentation of this reverse Williams rule evidence because the prerequisites for reverse Williams rule evidence were not present. However, the inadmissibility of evidence for one purpose — here, as reverse Williams rule evidence — does not dictate inadmissibility for another proper purpose, specifically cross-examination. See § 90.107, Fla. Stat. (2005); Consalvo v. State, 697 So.2d 805, 813 (Fla.1996).

We begin with the premise that limitation on cross-examination of witnesses is reviewed for abuse of discretion. Boyd v. State, 910 So.2d 167, 185 (Fla.2005). A trial court’s discretion in this area, however, is constrained by the rules of evidence, Johnston v. State, 863 So.2d 271, 278 (Fla.2003), and by recognition of a criminal defendant’s Sixth Amendment rights. “The right of a criminal defendant to cross-examine adverse witnesses is derived from the Sixth Amendment and due process right to confront one’s accusers. One accused of crime therefore has an absolute right to full and fair cross-examination.” Steinhorst v. State, 412 So.2d 332, 337 (Fla.1982). As the United States Supreme Court explained in Davis v. Alaska, 415 U.S. 308, 316, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974):

Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested. Subject always to the broad discretion of a trial judge to preclude repetitive and unduly harassing interrogation, the cross-examiner is not only permitted to delve into the witness’ story to test the witness’ perceptions and memory, but the cross-examiner has traditionally been allowed to impeach, i.e., discredit, the witness.

The scope of cross-examination is not without bounds, but “where a criminal defendant in a capital case, while exercising his sixth amendment right to confront and cross-examine the witnesses against him, inquires of a key prosecution witness regarding matters which are both germane to that witness’s testimony on direct examination and plausibly relevant to the defense, an abuse of discretion by the trial judge in curtailing that inquiry may easily constitute, reversible error.” Coxwell v. State, 361 So.2d 148, 152 (Fla.1978). In this case, the proffered cross-examination of both Matías and Hopkins constituted legitimate inquiry into matters both germane to their direct testimony and plausibly relevant to the defense’s theory in which McDuffie was attempting to show that Matias’s identification of McDuffie was faulty.

We have long recognized the right of a defendant in a capital case to fully cross-examine those witnesses called by the prosecution:

It is too well settled to need citation of authority that a fair and full cross-examination of a witness upon the subjects opened by the direct examination is an absolute right, as distinguished from a privilege, which must always be accorded to the person against whom the witness is called and this is particularly true in a criminal case such as this wherein the defendant is charged with the crime of murder in the first degree. For the sake of emphasis we make the observation that at the time of the proposed cross-examination appellant stood in jeopardy of being convicted of such capital offense. Cross-examination of a witness upon the subjects covered in his direct examination is an invaluable right and when it is denied to him it cannot be said that such ruling does not constitute harmful and fatal error. Moreover, the right of cross-examination stems from the constitutional guaranty that an accused person shall have the right to be confronted by his accusers.

Coco v. State, 62 So.2d 892, 894-95 (Fla.1958). “[CJross-examination is not confined to the identical details testified to in chief, but extends to its entire subject matter, and to all matters that may modify, supplement, contradict, rebut or make clearer the facts testified to in chief....” Boyd, 910 So.2d at 185 (quoting Coco, 62 So.2d at 895).

The proffered cross-examination of Hopkins was directly related to her testimony on direct examination about two men she saw sitting outside the store that night. She further testified on cross-examination that she was so concerned about their presence that, as she was leaving, she told her co-workers to call 911 if anything happened to her on the way to her car. She testified during her proffer that she was “fairly certain” the photograph of Absalon depicted one of the men she saw sitting on the bench after closing time at the Dollar General. The photograph of Fitzgerald, a man with known ties to the shopping plaza and to Beauregard, closely resembled the composite drawing of the white male which Hopkins helped create. Cross-examination concerning photographs of these two men, one whose face resembled McDuffie’s and one who was said to have confessed to involvement in the crimes, was both within the scope of direct-examination of Hopkins and relevant to McDuffie’s theory of defense, including the theory that Matías misidentified McDuffie as the man he saw that night leaving and re-entering the Dollar General.

Cross-examination of Matías concerning the photograph of Absalon was also relevant to Matias’s testimony identifying McDuffie. Matias’s contemporaneous description of the man he saw that night varied substantially from McDuffie’s physical description, and Matías was never confronted with a photographic or live line-up from which to identify any suspect as the person he saw at the Dollar General. The face of the composite that was prepared based on Matias’s description was left incomplete due to Matias’s inability to find composite components that matched his recollection of the man. His sole exposure to possible suspects was by way of the televised photograph of McDuffie who, at the time, was already under arrest for the crimes.

We have long held that it is “fatal error for the trial court to deny defense counsel the right of cross-examination for the purpose of laying a predicate for impeachment.” See Coco, 62 So.2d at 896. Here, cross-examination of Matías with a photograph of a man who Carol Hopkins was “fairly certain” was sitting on the bench outside the store at closing time on the night of the crimes could have formed the basis for impeaching or testing the accuracy of Matias’s identification of McDuffie. Therefore, cross-examination of Matías regarding the Absalon photograph was relevant to the credibility of his in-court identification of McDuffie as the man he saw at the Dollar General and was relevant to McDuffie’s theory of defense.

Our review of the record convinces us that the trial court abused its discretion in restricting cross-examination in these areas, and in so doing committed error. Although this error standing alone might be considered harmless (although the State has not argued that it is harmless), we conclude that this error should be considered cumulatively with the other errors we have identified and considered in light of the remaining evidence, which was largely circumstantial.

Voice Mail Evidence

Next, McDuffie contends that the trial court committed reversible error when it admitted testimony of the detailed contents of a threatening and vulgar message McDuffie left on the voice mail of attorney David Pederson on October 22, 2002. Pederson, an attorney whose father had previously rented a home to the McDuffies, had filed an eviction suit against McDuffie in which he claimed back rent and fees, including attorney’s fees. The voice mail was left after McDuffie received the eviction suit. The actual voice mail was subsequently erased but Pederson was allowed to testify, over defense objection, as to the contents of the message:

He said that he hoped myself and my father would go to Baltimore, Maryland, and get our asses shot off. At that time the sniper was there. Also, he said you can go suck your father’s dick, fuck your mother, things along that nature. It’s just — it was a nasty, hardcore message.

The trial court admitted this detailed testimony based on the State’s argument that it showed McDuffie’s state of mind and desperation over his financial situation. We hold that admission of the contents of the voice mail message was error.

The standard of review of a trial court’s evidentiary rulings is abuse of discretion. Fitzpatrick v. State, 900 So.2d 495, 514-15 (Fla.2005). The trial court’s discretion is limited, however, by the rules of evidence, Johnston, 863 So.2d at 278, and by the principles of stare decisis. Cf. Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980) (“Judges dealing with cases essentially alike should reach the same result.”). A trial court also abuses its discretion if its ruling is based on an “erroneous view of the law or on a clearly erroneous assessment of the evidence.” Cooter & Gell v. Hartmarx Corp,, 496 U.S. 384, 405, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990). We will, therefore, examine the rules of evidence which govern and the assessment of the evidence presented in this case.

Section 90.402, Florida Statutes (2005), a provision within the Florida Evidence Code, provides that all relevant evidence is admissible except as provided by law. “Relevant evidence is defined as ‘evidence tending to prove or disprove a material fact’ [but] ... ‘[Relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence.’” Sliney v. State, 944 So.2d 270, 286 (Fla.2006) (quoting §§ 90.401, 90.403, Fla. Stat.). “[PJroper application of section 90.403 requires a balancing test by the trial judge. Only when the unfair prejudice substantially outweighs the probative value of the evidence must the evidence be excluded.” Alston v. State, 723 So.2d 148, 156 (Fla.1998).

“Unfair prejudice” has been described as “an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.” Brown v. State, 719 So.2d 882, 885 (Fla.1998) (quoting Old Chief v. United States, 519 U.S. 172, 180, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997)). This rule of exclusion “is directed at evidence which inflames the jury or appeals improperly to the jury’s emotions.” Steverson v. State, 695 So.2d 687, 688-89 (Fla.1997). In performing the balancing test to determine if the unfair prejudice outweighs the probative value of the evidence, the trial court should consider the need for the evidence, the tendency of the evidence to suggest an emotional basis for the verdict, the chain of inference from the evidence necessary to establish the material fact, and the effectiveness of a limiting instruction. Taylor v. State, 855 So.2d 1, 22 (Fla.2003). The trial court is obligated to exclude' evidence in which unfair prejudice outweighs the probative value in order to avoid the danger that a jury will convict a defendant based upon reasons other than evidence establishing his guilt.

The Second District’s decision in Coverdale v. State, 940 So.2d 558 (Fla. 2d DCA 2006), is a case in point. Coverdale involved a prosecution for aggravated stalking, in which the trial court admitted evidence that Coverdale threatened a detective, saying he was going to hunt her down and would like to see her head blown off. Id. at 561. The prosecution argued the threatening statement was probative of Coverdale’s state of mind concerning the crime of stalking the victim in the case. Id. The Second District reversed, explaining that

[the detective’s] testimony that Cover-dale was acting irate do[es] address Coverdale’s state of mind. But, the additional testimony about Coverdale’s threat to hunt down the detective and that she would look good with a bullet in her head or that it would be nice to see her head blown off was unduly prejudicial. Thus, the trial court abused its discretion in allowing the testimony.

Id. at 562.

In Davis v. State, 718 So.2d 874 (Fla. 5th DCA 1998), in a prosecution for exploitation of the elderly, the trial court admitted a videotaped interview with the victim that was marginally relevant to show the victim’s state of mind to corroborate her incompetence. Id. at 876. The district court reversed because the unfair prejudice to Davis outweighed the tape’s probative value, noting that the tape’s principal effect was to show the victim’s loathing of the defendant and the attitude of the interviewer that the defendant was a threat. Id. at 877. The district court said that showing the marginally relevant tape “lobbed the proverbial skunk into the jury box, and deprived the defendant of a fair trial.” Id.

Similar to Coverdale and Davis, in this case the details of the statement that McDuffie hoped Pederson and his father would go to Baltimore and “get [their] asses shot off’ was unnecessary to prove what the State asserted was the relevant fact — that McDuffie was in a desperate state of mind. The vulgar portion of the voice mail only showed that he was extremely irate at having been served with a suit for eviction claiming attorney’s fees he thought were unconscionable. Nor were the details of the voice mail, which occurred days before the murder and bore no relationship to the crimes, probative of whether McDuffie committed robbery and murder. On the other hand, those details tended to prove quite effectively several irrelevant, highly prejudicial facts — that McDuffie was vicious, nasty, and of questionable moral character. In addition, the reference to the sniper incidents, which involved random shootings by black men of primarily white victims, could only serve to inflame the jury’s emotions.

We conclude that the trial court abused its discretion in admitting the detailed contents of the threatening and obscene voice mail. Any purported probative value is marginal at best as it simply shows McDuffie was angry over being evicted, a fact that did not require the objectionable details of the voice mail to prove. Any marginal probative value relative to McDuffie’s state of mind is substantially outweighed by the highly inflammatory contents of a voice mail depicting McDuffie as a person with a vicious temper who wishes on another individual a fate similar to that of the victims of the Washington, D.C./Baltimore area snipers.

The trial court erred in admitting this evidence over McDuffie’s objection. Improper admission of this evidence, over objection, is subject to a harmless error analysis as set forth in State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986); see also Floyd v. State, 913 So.2d 564, 573 (Fla.2005). Because of the other errors that occurred, all of which were also preserved, we have determined that a cumulative harmless error analysis is appropriate.

Cumulative Error

Harmless error analysis places the burden upon the State, as beneficiary of the errors, to prove there is “no reasonable possibility that the error contributed to” McDuffie’s conviction. DiGuilio, 491 So.2d at 1138. It is well-established that the harmless error test “is not a sufficiency-of-the-evidence, a correct result, a not clearly wrong, a substantial evidence, a more probable than not, a clear and convincing, or even an overwhelming evidence test” but the “focus is on the effect of the error on the trier-of-fact.” Id. at 1139.

Where multiple errors are discovered in the jury trial, a review of the cumulative effect of those errors is appropriate because “even though there was competent substantial evidence to support a verdict ... and even though each of the alleged errors, standing alone, could be considered harmless, the cumulative effect of such errors [may be] such as to deny to defendant the fair and impartial trial that is the inalienable right of all litigants in this state and this nation.” Brooks v. State, 918 So.2d 181, 202 (Fla.2005) (quoting Jackson v. State, 575 So.2d 181, 189 (Fla.1991)); accord Penalver v. State, 926 So.2d 1118, 1137 (Fla.2006).

Although this case was not entirely circumstantial, the evidence asserted by the State to be “direct evidence” was not unassailable. Matias’s identification of McDuffie was potentially impeached by his receipt of the $10,000 reward, which he said he probably would not have received had he not identified McDuffie at trial. Matias’s contemporaneous description of the perpetrator did not match McDuffie in several important respects. The testimony offered by the jail inmates — Ingram claiming Fitzgerald confessed and Fitzgerald claiming McDuffie confessed — was less than compelling. Because the evidence was largely circumstantial, any defense evidence that would support McDuffie’s hypothesis of innocence and rebut the State’s evidence of motive would have been critical to the defense.

We conclude that the errors that occurred in this case, when viewed cumulatively, cannot be considered harmless beyond a reasonable doubt. By excluding defense witness Wiggins, the trial court deprived the defense of the only non-family member who could testify to the loans made to McDuffie. Further, the failure to allow full cross-examination of the witnesses who were actually on the scene at or near the times of the crimes prevented the defense from further casting doubt on the reliability of the Matías eyewitness identification. Lastly, the effect on the jury created by the violent and vulgar contents of the voice mail cannot be underestimated. With just two sentences, an image of McDuffie as a potentially violent human being capable of wishing death on another — one who is not even a victim in the case — emerged. For all these reasons, we conclude that the State cannot establish that the errors were harmless beyond a reasonable doubt.

Sufficiency of the Evidence

Finally, before reversing and remanding for a new trial we analyze the sufficiency of the evidence because if there is insufficient evidence on which to convict McDuf-fie of these murders, it is our obligation to reverse the convictions with directions to grant judgments of acquittal. The trial court denied the defense motions for judgment of acquittal made at the conclusion of the State’s case-in-chief and at the conclusion of all the evidence. We must review the evidence to determine if either of these rulings was error. A de novo standard of review applies. See Pagan v. State, 830 So.2d 792, 803 (Fla.2002).

In challenging the sufficiency of the evidence to support the verdicts in this case, McDuffie characterizes substantially all the evidence presented by the State as circumstantial, requiring the special standard of review applicable to wholly circumstantial cases. The State counters that the evidence cannot be considered wholly circumstantial because the “eyewitness” testimony of Matías placed McDuffie at the Dollar General at 9:27 p.m., which is inconsistent with McDuffie’s testimony that he left the store before 9 p.m. The State also argues that McDuffie essentially waived the circumstantial nature of the case by calling Michael Fitzgerald to testify, during which Fitzgerald said that while in jail he heard McDuffie confess to the crimes. We have held, however, that if the State fails to present a prima facie case and the defendant makes a sufficient motion for judgment of acquittal at the close of the State’s case, the issue of the sufficiency of the evidence at that point is not waived by later introduction by the defense of evidence which supplies the missing element. State v. Pennington, 534 So.2d 393, 395-96 (Fla.1988); see also Fla. R.Crim. P. 3.380(b). For this reason, we first review the evidence as it stood at the close of the State’s case to determine if, at that time, the State had carried its burden of presenting sufficient evidence upon which the jury could convict McDuffie.

McDuffie contends that the State’s evidence should be reviewed under the special standard applicable to wholly circumstantial cases, as set forth in Reynolds v. State, 934 So.2d 1128 (Fla.2006), cert. denied, — U.S. -, 127 S.Ct. 943, 166 L.Ed.2d 721 (2007):

“[W]here a conviction is based wholly upon circumstantial evidence, a special standard of review applies.” Darling v. State, 808 So.2d 145, 155 (Fla.2002). As stated in Darling:
Where the only proof of guilt is circumstantial, no matter how strongly the evidence may suggest guilt, a conviction cannot be sustained unless the evidence is inconsistent with any reasonable hypothesis of innocence. The question of whether the evidence fails to exclude all reasonable hypotheses of innocence is for the jury to determine, and where there is substantial, competent evidence to support the jury verdict, we will not reverse.

Id. at 1145-46. However, even in a purely circumstantial case

[the court’s] view of the evidence must be taken in the light most favorable to the state. The state is not required to rebut conclusively every possible variation of events which could be inferred from the evidence, but only to introduce competent evidence which is inconsistent with the defendant’s theory of events. Once that threshold burden is met, it becomes the jury’s duty to determine whether the evidence is sufficient to exclude every reasonable hypothesis of innocence beyond a reasonable doubt.

Orme v. State, 677 So.2d 258, 262 (Fla.1996) (quoting State v. Law, 559 So.2d 187, 189 (Fla.1989)) (alterations in original). For purposes of our review, we will first consider the sufficiency of the State’s evidence at the close of its case-in-chief as if wholly circumstantial, and will apply the special standard for such cases. We will then review the sufficiency of the evidence as it stood at the conclusion of the trial.

A. Sufficiency of the Evidence at Conclusion of the State’s Case

We are aware that no physical evidence of hairs, fibers, or DNA was found to link McDuffie to the robbery and murders. The gun was never recovered. The money, checks and bank bag were never located. Although McDuffie’s DNA was found on a Pepsi bottle sitting on a box that also bore a spot of Schneider’s blood, no evidence indicated when the bottle was placed there, and the fact that McDuffie worked in the store all week militates against that DNA on the Pepsi bottle being probative of these crimes.

At the conclusion of the State’s case-in-chief, evidence had been presented that McDuffie’s palm print was found on the duct tape binding Beauregard’s wrists. The duct tape was identical to that sold at the Dollar General store. The State presented no evidence as to when the print was placed there, but did submit forensic evidence that the print was in a location on the tape which the jury could reasonably find would not have resulted from McDuf-fie simply handling the roll of duct tape in the course of his employment. Marta Strawser, Florida Department of Law Enforcement senior crime lab microanalyst, testified that the cut and torn pieces of tape taken from Beauregard’s hands were microscopically reconstructed into a continuous strip. Ms. Strawser found that McDuffie’s palm print was located no closer than thirty inches to one end of the reconstructed strip and forty-one inches from the other. The rolls of duct tape sold at Dollar General were at most seventeen inches in circumference. The State’s latent fingerprint specialist did concede, however, that a print can be transferred from one location on a piece of tape to another when the tape is pressed together, as it had been in this case.

The State also presented the testimony of Alex Matías. He identified McDuffie as the man he saw going into and out of the Dollar General around 9:27 p.m. on the night of the murders. This was important testimony because McDuffie had previously told investigators that he left the store around 8:45 p.m. and drove directly to the Aaron’s rental center to make a payment in the drop-off box, a trip that takes about forty minutes. A videotape of the Aaron’s rental center driveway shows no cars entering between 9:10 p.m. and 10:30 p.m., when headlights are first seen. McDuffie also told investigators that he proceeded directly from Aaron’s to a nearby McDonald’s restaurant and was there about 9:35 p.m. However, a videotape from the McDonald’s that night showed McDuffie inside McDonald’s at 10:34 p.m. This evidence was sufficient to support the jury’s rejection of McDuffie’s reported timeline of events that evening and to rebut the suggestion of a reasonable hypothesis of innocence that the defense sought to establish during the State’s case-in-chief.

The State also presented evidence demonstrating that McDuffie had serious financial troubles, which the State argued provided a motive for the crimes. McDuf-fie had recently been evicted and had to rent a new home; he owed back rent, current rent and fees; he had been unemployed for a period of time; and one of his cars had been repossessed. The jury heard that on October 23, 2002, McDuffie advised his new landlord that he did not have the $1,450 that was due, but would have it soon. The landlord picked up the rent and security deposit from McDuffie’s home on October 27, 2002. The payment of $1,450 was in the form of three money orders that McDuffie purchased early on October 26, 2002, the day after the crimes.

Even if this case were entirely circumstantial, the State would not be required to rebut every possible variation of events, but must only present evidence inconsistent with the defendant’s reasonable hypothesis of innocence. Delgado v. State, 948 So.2d 681, 690 (Fla.2006). We conclude that the State met its threshold burden of presenting evidence during its casein-chief which is sufficiently inconsistent with McDuffie’s version of events, and with the hypothesis of innocence suggested by the defense during the State’s case-in-chief, to create a jury question. See Law, 559 So.2d at 188-89. Because the State presented prima facie evidence of inconsistency as to McDuffie’s theory of events in its case-in-chief, “the question is for the finder of fact to resolve.” Orme, 677 So.2d at 262. Therefore, the trial court did not err in denying the motion for judgment of acquittal made at the conclusion of the State’s case-in-chief.

B. Sufficiency of the Evidence at Conclusion of the Defense’s Case

McDuffie presented evidence during the defense’s case in an attempt to rebut the inconsistencies disclosed by the State’s evidence and to further attempt to prove his reasonable hypothesis of innocence. We will review the sufficiency of the evidence as it stood after the defense presented its case to determine if, at that point, the trial court erred in denying the renewed motion for judgment of acquittal.

McDuffie testified in his own defense, denying commission of the crimes and insisting that he left the store shortly after Carol Hopkins. , He explained the inconsistency in the timeline by testifying that traffic and road construction must have caused his trip to take longer than expected that night. He demonstrated for the jury his hypothesis of how his palm print could have been placed innocently on the duct tape while he handled the tape that day helping a Customer tape up some boxes. He presented evidence of money innocently received in October to account for the money he had shortly after the murders. His expert testified that the number of weapons used in the crimes, the difficulty of one man handling two victims, and the unidentified blood and hair on the scene pointed to two perpetrators, not one.

The defense also presented jail inmate Kevin Ingram, who testified that another inmate, Michael Fitzgerald, had confessed that Fitzgerald and a black male (not McDuffie) were responsible for the robbery and that the black male had “taken care of’ the employees at the Dollar General after Fitzgerald left the store with the money. The defense, however, also presented the testimony of jail inmate Michael Fitzgerald who, during cross-examination, denied involvement in the crimes and said that while in jail he heard McDuffie confess to the murders. At this point, direct evidence was presented upon which the jury could find McDuffie guilty.

Appellate courts review the denial of a motion for judgment of acquittal under the de novo standard, and must consider the evidence and all reasonable inferences from the evidence in a light most favorable to the State. Fitzpatrick, 900 So.2d at 507. Where the State has presented competent, substantial evidence of the crimes charged, the trial court does not err in denying a motion for judgment of acquittal and submitting the case to the jury. Conde v. State, 860 So.2d 930, 943 (Fla.2003). We conclude that the totality of the evidence, including evidence elicited in the defense’s case, was sufficient to overcome the motion for judgment of acquittal made at the conclusion of all the evidence and to support the verdicts of the jury.

CONCLUSION

Although we find the evidence sufficient to support the verdicts in this case, as we explained above, the harmless error test is not a sufficiency-of-the-evidence test. The ultimate question is “whether there is a reasonable possibility that the error affected the verdict.” DiGuilio, 491 So.2d at 1139. Notwithstanding the sufficiency of the evidence, we have concluded that cumulative error occurred that is not harmless beyond a reasonable doubt, thereby necessitating a new trial.

Accordingly, for the reasons stated in this opinion, we reverse McDuffie’s convictions and sentences and remand for a new trial.

It is so ordered.

LEWIS, C.J., and WELLS, ANSTEAD, PARIENTE, QUINCE, CANTERO, and BELL, JJ., concur.

      . The claims on appeal are: (1) the trial court erred in failing to conduct an adequate inquiry under Richardson v. State, 246 So.2d 771 (Fla.1971), regarding a defense discovery violation and by excluding witness Wiggins’ testimony and exhibit; (2) the trial court erred in denying the motion to suppress identification of McDuffie by Alex Mafias and in restricting cross-examination of Matías and Carol Hopkins; (3) the trial court erred in restricting presentation of “reverse Williams rule” evidence (Williams v. State, 110 So.2d 654 (Fla.1959)); (4) the trial court erred in admitting testimony of witness Pederson concerning a voice mail message; (5) the trial court erred in admitting evidence of collateral bad acts that became a feature of the trial; (6) the evidence is insufficient to support McDuffie’s convictions; (7) the evidence is insufficient to support the finding of the "heinous, atrocious or cruel” (HAC) aggravator as to both murders; (8) Florida’s capital sentencing statute and standard jury instructions violate the Fifth, Sixth, Eighth, and Fourteenth Amendments by establishing a presumption that death is the appropriate penalty and by shifting the burden of proof to the defendant to establish mitigating factors and to show that mitigation outweighs aggravation; (9) error occurred in the penalty phase because the jury heard argument and instruction regarding the “cold, calculated and premeditated” (CCP) aggravator which the trial court later rejected; and (10) Florida’s capital sentencing statute violates the Sixth Amendment right to a jury trial under Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002).

      . The “Williams rule” takes its name from Williams v. State, 110 So.2d 654 (Fla.1959), and is codified at section 90.404(2), Florida Statutes (2005). This rule allows introduction of similar fact evidence of other crimes or acts by the defendant that are relevant to prove a material matter in the prosecution. “Reverse Williams rule” evidence is evidence of a crime committed by another person that a defendant offers to show his or her innocence of the instant crime. See Rivera v. State, 561 So.2d 536, 539 (Fla.1990). The defendant must demonstrate a "close similarity of facts, a unique or 'fingerprint' type of information” for the reverse Williams rule evidence to be admissible. White v. State, 817 So.2d 799, 806 (Fla.2002) (quoting State v. Savino, 567 So.2d 892, 894 (Fla.1990)). Ex-elusion of reverse Williams rule evidence is subject to abuse of discretion review. Huggins v. State, 889 So.2d 743, 761 (Fla.2004).

      . The sniper attacks occurred in the Washington, D.C., Virginia, and Maryland area during the period September 5, 2002, to October 22, 2002. See Muhammad v. Commonwealth, 269 Va. 451, 619 S.E.2d 16, 24 (2005).


source: Caselaw Access Project

author: LEWIS, C.J.

license: Public Domain

text:
    Shana BARNES, Petitioner, v. STATE of Florida, Respondent.
    No. SC06-662.
    Supreme Court of Florida.
    Nov. 29, 2007.

      Louis K. Rosenbloum, Pensacola, FL, for Petitioner.
    Bill McCollum, Attorney General, Trisha Meggs Pate, Bureau Chief Criminal Appeals, and Thomas D. Winokur, Assistant Attorneys General, Tallahassee, FL, for Respondent.
   LEWIS, C.J.

Petitioner Shana Barnes seeks review of the decision of the First District Court of Appeal in Barnes v. State, 922 So.2d 380 (Fla. 1st DCA 2006) (Barnes II), asserting that it expressly and directly conflicts with the decision of this Court in Young v. State, 645 So.2d 965 (Fla.1994), and the decision of the Fifth District Court of Appeal in Janson v. State, 730 So.2d 734 (Fla. 5th DCA 1999), review denied, 767 So.2d 457 (Fla.2000), on a question of law. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.

FACTS AND PROCEDURAL HISTORY

On August 7, 2000, Shana Barnes was charged with second-degree murder after she shot her husband with a firearm. A jury convicted Barnes of the crime, but on appeal the First District Court of Appeal reversed and remanded for a new trial because it concluded that the jury instructions on the issue of self-defense were “confusing, misleading, and erroneous.” Barnes v. State, 868 So.2d 606, 607 (Fla. 1st DCA 2004) (Barnes I). During a hearing before the retrial, the State announced that on retrial it intended to read to the jury the testimony of Barnes from the first trial. Counsel for Barnes conceded that the prior testimony was admissible, but filed a motion in limine for redaction of portions of the testimony that were allegedly improper. After a hearing, the trial court granted the motion in part and ordered that various portions of the testimony be redacted.

During that hearing, the State also informed the trial court that, in addition to having the testimony of Barnes read to the jury, it intended to introduce the transcript into evidence as an exhibit and requested that the jury have the written transcript of that testimony in the jury room to review during deliberations. Counsel for Barnes objected, contending that this testimony constituted an admission and the defendant had not issued a written admission statement. Barnes asserted that admissions are introduced only through a witness who testifies with regard to what a defendant has stated. The State disagreed and suggested that the transcript was similar to a statement of a defendant that has been given at a police station. The trial court entered a preliminary ruling that the transcript would be admitted into evidence to be utilized as an exhibit.

During the retrial and before the State actually read the transcript, counsel for Barnes again objected to admission of the transcript into evidence. Counsel explained:

[T]he problem we see is the same problem as exists when you let [a] videotaped deposition go back and that is, that the jury — it’s the only trial testimony that the jury will have in front of them and they therefore give it undue weight and too much attention compared to all the other evidence in the case. Especially when they have heard it read by question and answer in the courtroom.

The State responded that it was necessary for the jury to have the written transcript of the prior testimony during deliberations to afford the jury with a document to compare the prior testimony with the prior written statement Barnes provided to law enforcement officers. The State contended that the written transcript of testimony constituted a statement against interest because it was in conflict with the prior written statement Barnes had given to the police. The State emphasized that the jury would not be informed that the written transcript was testimony from a prior trial. The trial court overruled the objection, and the testimony of Barnes from the first trial was subsequently read to the jury. One assistant state attorney read the questions and a different assistant state attorney responded to the questions by reading the responses of Barnes during the initial trial.

The State then sought to place the written transcript of testimony into evidence as an exhibit. Barnes again objected and asserted that this would be the only testimony from the trial that would be taken to the jury room and it would, therefore, be unduly emphasized over other evidence and testimony. The trial court overruled the objection and concluded that this prior trial testimony constituted a sworn statement which contained admissions. The trial court expressed the belief that the introduction into evidence of a written transcript of a defendant’s prior trial testimony as an exhibit was distinguishable from transcribing the testimony of other witnesses and admitting those transcripts into evidence and sending them back to the jury room with the jury for deliberations.

During closing argument, the State referred to and argued the discrepancies it perceived between the prior testimony of Barnes and her written statement to the police. The jury returned its verdict and convicted Barnes of second-degree murder and found that she discharged a firearm during the crime. The trial court sentenced Barnes to twenty-seven years’ incarceration with a twenty-five-year mandatory minimum.

On appeal, the First District Court. of Appeal affirmed the conviction and sentence. See Barnes v. State, 922 So.2d 380 (Fla. 1st DCA 2006) (Barnes II). The First District held that the trial court did not abuse its discretion when it allowed the jury to take the written transcript of the defendant’s prior trial testimony into the jury room as an exhibit in evidence:

The trial judge properly admitted the statements in question as an exhibit of numerous admissions made by the Appellant. See Delacruz v. State, 734 So.2d 1116, 1122 (Fla. 1st DCA 1999) (finding that defendant’s prior statements, whether exculpatory or not, were admissible against defendant as admissions under section 90.803(18), Florida Statutes (citing Charles W. Ehrhardt, Florida Evidence § 803.18, at 733-34 (1999 ed.))). The fact that the State published the exhibit to the jury does not turn the exhibit into “testimony.” Accordingly, the trial judge acted within his discretion to allow the jury to take the exhibit into the jury room. See Fla. R.Crim. P. 3.400(a)(4) (permitting the judge to allow “all things received into evidence other than depositions” into the jury room).

Id. at 382.

This Court granted review of the decision of the First District on the basis that it expressly and directly conflicts with the decisions in Young v. State, 645 So.2d 965 (Fla.1994), and Janson v. State, 730 So.2d 734 (Fla. 5th DCA 1999), review denied, 767 So.2d 457 (Fla.2000). See Barnes v. State, 948 So.2d 758 (Fla.2007) (table). In Young, this Court held that trial testimony presented through videotape to a jury should not also be permitted in the jury room as an exhibit, and further that videotaped out-of-court interviews with child victims are not allowed into the jury room during deliberations. See 645 So.2d at 967. The Fifth District in Janson relied upon Young when it held that the trial court erred when it allowed the written transcript of the testimony of two witnesses into the jury room. See 730 So.2d at 734-35.

ANALYSIS

Both parties agree that the defendant’s testimony from her first trial was, most assuredly, admissible in the retrial of the second-degree murder charge. See State v. Billie, 881 So.2d 637, 639 (Fla. 3d DCA 2004) (quoting Harrison v. United States, 392 U.S. 219, 222, 88 S.Ct. 2008, 20 L.Ed.2d 1047 (1968) for the proposition that “a defendant’s testimony at a former trial is admissible in evidence against him in later proceedings”). In Billie, the Third District explained that under the Florida Evidence Code, prior testimony is admissible in a subsequent proceeding as an admission by the defendant. See id.; § 90.803(18), Fla. Stat. (2003). The discrete issue presented by the instant case is not whether the prior testimony was admissible, but whether the trial court should have admitted into evidence a written transcript of the defendant’s prior trial testimony after it had actually been read during the retrial proceedings, thereby allowing the jury access to and use of that written transcript of testimony during deliberations.

Admissibility of the Transcript into Evidence

A trial court ruling with regard to the admissibility of evidence is reviewed under the abuse of discretion standard. See Alston v. State, 723 So.2d 148 (Fla.1998). Florida Rule of Criminal Procedure 3.400, “Materials to the Jury Room,” provides that a trial court has the discretion to allow the jury to take into the jury room “all things received into evidence other than depositions.” Fla. R.Crim. P. 3.400(a)(4) (emphasis supplied). For purposes of our decision today, we must decide whether the written transcript of the prior trial testimony was a “thing” that should have been received into evidence after it had already been read during the trial proceedings as testimonial evidence. We conclude that it was not.

We commence our analysis by noting that, unlike a signed confession, a transcript of prior testimony is not generally considered physical evidence in a criminal case. As noted by the Illinois Supreme Court, signed confessions constitute valuable physical evidence and are appropriately submitted to the jurors during deliberations along with any other properly admitted physical evidence:

[A] signed confession which has been shown by the State to be free from coercive conditions is among the strongest kinds of physical evidence the prosecution may produce, and when the tests of admissibility have been met and the defense afforded the full opportunity to point out any circumstances which may go to undermine the credibility of the confession in the eyes of the jury, there appears to us no valid reason to preclude the written confession from going to the jury room along with other exhibits which the trial judge may deem proper.... Nor, in our opinion, is there a logical reason to distinguish between a written confession and other physical evidence of a concededly damaging nature such as murder weapons, bloodstained clothing or gruesome photographs insofar as their presence in the jury room is concerned. In our judgment all should be governed by the general rule governing exhibits of physical evidence which may be taken to the jury room if the sound discretion of the trial judge dictates that they bear directly on the charge.

People v. Caldwell, 39 Ill.2d 346, 236 N.E.2d 706, 714 (1968) (emphasis supplied).

On the other hand, this Court and a number of other jurisdictions have held that depositions and other evidence of a testimonial nature should not be provided to a jury during deliberations. Moreover, despite the specific preclusion provided by rule 3.400(a)(4), this subdivision has not been exclusively limited to depositions. For example, in Young, this Court held that videotaped statements by child victims of alleged sexual abuse could not be taken into the jury room during deliberations. See 645 So.2d at 967. We explained:

When introduced to prove sexual abuse, the videotaped interviews of children are self-serving in the sense that they are testimonial in nature and assert the truth of the children’s statements. They are more akin to depositions de bene esse in which testimony is preserved for later introduction at the trial.
... [Allowing a jury to have access to videotaped witness statements during deliberations has much the same prejudicial effect as submitting depositions to the jury during deliberations. By permitting the jurors to see the interview once again in the jury room, there is a real danger that the child’s statements will be unfairly given more emphasis than other testimony.

Id. (emphasis supplied). The Fifth District relied upon the Young decision in Janson when it concluded that the written transcripts of the testimony of two witnesses should not have been allowed into the jury room. See 730 So.2d at 734-35.

A number of other jurisdictions have precluded the use of written forms of testimonial evidence in the jury room during deliberations. One factually relevant decision in the case we decide today is the decision of the District of Columbia Court of Appeals in Fuller v. United States, 873 A.2d 1108 (D.C.2005). In Fuller, the defendant asserted on appeal that the trial court had erred when it allowed the jury to possess a written transcript of his prior testimony during deliberations. See id. at 1115. The testimony had also been read to the jury during the trial. See id. at 1112. The Court of Appeals held that the trial court should not have allowed the jury access to the written transcript:

Although courts are not uniform, most consider that it is within the discretion of the judge to allow “many types of tangible exhibits [and] written exhibits generally except for those that are testimonial in nature .... The reason underlying this latter exception is that writings which are merely testimony in a different form should not, by being allowed to the jury, be unduly emphasized over the other purely oral testimony in the case.” 2 McCormick on Evidence § 217 at 30 (John William Strong, ed., 5th ed.1999) (emphasis added). A clear distinction is drawn between admitting previous testimony (from a transcript) as evidence, and providing the transcript to the jury:
[WJritten testimony is not to be read by the jury in the jury room but is to be read to them in open court, subject to all objections to be made, the same as if the witness were present and testifying. The written record thereof should not be taken to the jury room where the jury might read it. A written instrument, made an exhibit in the cause but not consisting of testimony of a witness in the case, may of course be taken to the jury room the same as maps, diagrams, and other exhibits. But the testimony of a witness is in a different category.... If ... the jury takes the depositions or transcript to be read and discussed while the oral evidence contra has in a measure faded from the memory of the jurors, it is obvious that the side sustained by written evidence is given an undue advantage. The law does not permit depositions or witnesses to go to the jury room. Why should a witness be permitted to go there in the form of written testimony?
State v. Solomon, 96 Utah 500, 87 P.2d 807, 811 (1939).

Id. at 1116-17. We agree with this analysis from the District of Columbia Court of Appeals. Accordingly, we conclude that when prior testimony has been read to a jury during the trial proceeding as testimonial evidence, a written transcript of that testimony is not and should not be considered a “thing” that should be entered into evidence as an exhibit and provided to the jury during deliberations pursuant to rule 3.400(a)(4).

Moreover, in Fuller, the Court of Appeals noted that even enhanced concerns arise when the prior testimony of a defendant is provided to the jurors in transcript form as compared to the prior testimony of a witness:

The risk that the jury might give undue weight to some testimony because it is available in transcript form over jurors’ recollection of other, untranscribed trial testimony is heightened where the transcript is of the testimony of the defendant, because a defendant’s admissions normally carry particular force with a jury. Moreover, there is a Fifth Amendment concern, for even if a defendant’s testimony from a prior trial has been properly admitted as evidence, a transcript of that testimony might receive greater scrutiny — and invite impermissible inferences — where the defendant has exercised his constitutional right not to take the stand at a second trial.

Id. at 1117. There are numerous factors that may influence whether a defendant decides to testify during any given proceeding. The nature of the proceeding, the composition of the jury, and the prior trial experience are only a few of those variable factors. The Fuller court reasoned that it is far more questionable for jurors to receive a written transcript of a defendant’s prior testimony than that of a witness. The Fuller court determined that when the prior testimony of a defendant is to be provided in transcript form to jurors during deliberations, the trial court should give the jurors specific instructions with regard to the use of the transcript:

A trial judge should first consider whether the jurors have a particular need for the transcript, and if so, give a special instruction cautioning against unduly emphasizing the transcript over other evidence. In a case where the transcript is of the defendant’s testimony, the judge should further caution the jury, if requested by the defense, against making impermissible inferences contrasting the defendant’s decision to testify at an earlier trial and his choice not to testify at the second trial.

Id. at 1118 (citations and footnote omitted).

We conclude that some of the concerns discussed in Fuller with regard to the constitutional rights of a defendant are also compelling. The Fifth Amendment to the United Constitution provides that no defendant “shall be compelled in any criminal case to be a witness against himself.” U.S. Const, amend V. Under the Florida Constitution, a defendant has the right to testify in his or her defense. See art. I, § 16, Fla. Const. Based on the specific circumstances presented by each trial (e.g., the.timing, the evidence offered by the State, the jurors selected), a defendant may choose to testify or not. Nonetheless, if for some reason the result of that first trial is inconclusive, or the defendant is awarded a new trial based upon trial-court error, the Fifth Amendment right to remain silent under the United States Constitution is implicated and remains intact during all subsequent proceedings. However, if a defendant would choose to exercise the right to remain silent in a subsequent proceeding, and the State allowed to introduce into evidence a written transcript of the prior testimony as an exhibit, questions could arise in the minds of jurors as to why the defendant is not testifying in the current proceeding when he or she chose to do so previously. Although the parties may give great effort to conceal the fact that the testimony is actually from a prior trial, as occurred in the instant case, the jurors will most likely realize that on some occasion in the past the defendant elected to offer an explanation and discuss what happened with regard to the alleged crime, but currently declines to do so. We conclude that when a jury is provided the prior trial testimony of a defendant which is read during trial and is also given that testimony in written transcript form to scrutinize and consider as a tangible exhibit during deliberations, in the absence of any other testimony offered during the trial, the choice of the defendant to remain silent may, as recognized in Fuller, “invite impermissible inferences.” 873 A.2d at 1117. We decline to issue a principle of law that could potentially and very realistically jeopardize or denigrate the Fifth Amendment right of a defendant to remain silent during trial. Therefore, we hold that a transcript of the prior trial testimony of a defendant, even more so than that of a witness, is not a “thing” to be admitted into evidence as an exhibit for jurors to examine during deliberations after the testimony has been read during the trial proceedings as testimonial evidence. See Fla. R.Crim. P. 3.400(a)(4).

In light of the foregoing, we hold that it was an abuse of discretion for the trial court to place a written transcript of the defendant’s prior testimony into evidence after it had been read to the jury and also an abuse to allow the jurors to possess and utilize this transcript during deliberations.

Harmless Error

Our inquiry does not end with our conclusion that an abuse of discretion has occurred. We must next consider whether the erroneous admission of the written transcript into evidence and the use of the written transcript by the jurors during deliberations constitute harmless error. We have explained the harmless error test as follows:

Harmless error is not a device for the appellate court to substitute itself for the trier-of-fact by simply weighing the evidence. The focus is on the effect of the error on the trier-of-fact. The question is whether there is a reasonable possibility that the error affected the verdict. The burden to show the error was harmless must remain on the state. If the appellate court cannot say beyond a reasonable doubt that the error did not affect the verdict, then the error is by definition harmful.

State v. DiGuilio, 491 So.2d 1129, 1139 (Fla.1986) (emphasis supplied).

In Fuller, the District of Columbia Court of Appeals concluded that even though the trial judge erroneously provided the jury with the written transcript of the defendant’s prior testimony during deliberations, the error did not warrant reversal of the conviction:

Appellant claims that the prosecutor’s frequent references to his testimony at closing demonstrate that it was used against him and further directed the jury to focus on the transcript. Appellant’s testimony from the first trial that was read and given to the jury in transcript form, however, was not inculpato-ry, but consistent with his defense in the second trial that he had been misidentified and that Jones, the person who was with him at the time of the shooting, had shot Murray. Other than the general argument that the jury is prone to overemphasize transcribed testimony, appellant has not referred us to any portion of the transcript that — if given particularized scrutiny by the jury — would have seriously prejudiced his defense. The jury’s reading of the transcript would, if anything, have presented appellant’s case again while the jurors deliberated, as defense counsel urged them to do during closing argument. Although the trial judge did not specifically instruct the jury with respect to the transcript of appellant’s prior testimony, he did instruct the jurors that they must not draw any inference of guilt from appellant’s decision not to testify at the second trial. Finally, we consider the strength of the government’s case. While there were some inconsistencies in their accounts, two eyewitnesses who knew appellant from the neighborhood positively identified him as the shooter. Several other witnesses provided a motive for the shooting and another said appellant had confessed to having shot Murray, albeit in self-defense. Considering the matter in the context of the entire trial, we are confident that the jury’s access to a transcript of the non-testifying appellant’s testimony from a previous trial did not sway the verdict, and that any error in providing the transcript was therefore harmless.

873 A.2d at 1118 (emphasis supplied).

Unlike the transcript in Fuller, which the Court of Appeals deemed not to be inculpatory, see id., the State here utilized the written transcript of the testimony to demonstrate that Barnes had made inconsistent statements with regard to the facts of the crime when she gave her statement to police when compared with her testimony at her first trial. The key fact upon which the State primarily focused was the location of a gun just prior to the shooting. The location of the gun was most relevant to the defendant’s assertion that when she shot her husband, her actions were spontaneous or reflexive in nature. The State noted that in the original written statement given to police, Barnes stated that the gun was on the passenger seat of the vehicle which she occupied at the time she shot her husband. However, when she testified at the first trial, she stated that the gun was in her purse. During closing argument, the State specifically directed the attention of the jury to this inconsistency:

Whether it was on the seat or in the purse. The gun. Her original statement, her written statement to the police indicated that the gun was on the seat, however, in her later statement on April 24, 2002, all of a sudden it’s in her purse, sitting on top of her purse where it had stayed from the time she put it in her purse, walked through the house, pass[ed] Gregory Barnes, out to the car, got in the car, threw her purse there and the gun is still conveniently on top of it ready for her to just grab and shoot. That’s inconsistent.
It’s inconsistent to what she said that night. It’s inconsistent with the details of what had to occur for this to happen and how fast it had to occur.
Her explanation for that inconsistency, well, in the purse which is on the seat. No. That’s not something you leave out. That’s not something that someone that after going through her written statement ... leaves out. She didn’t leave out that it was in her purse. It was never in her purse. It was right, there on the seat ready to shoot him in the face.

During rebuttal, the State again focused on the inconsistency:

And ladies and gentlemen, the critical distinction of the gun being in the seat as she told the police — it was reflected in their notes as read from the stand. It is reflected in her written statement and then in her testimony from the year 2002 — in the first part of questioning she said it was on the seat. Later in questioning when asked why would you carry a loaded gun around walking through your household to . get in a car to go drive to your peaceful spot downtown, why would you do that? Then her answer changed to oh, it was in the purse.
But ladies and gentleman, I invite you to look at that picture. The purse is either zipped up or so narrow at the top that that gun was nowhere near the top of that purse. It was on the seat or maybe in her lap, but it wasn’t in that purse.

The State referred to this distinction as “critical” at least two times during rebuttal. Finally, and importantly, the State urged the jurors to “[l]ook at the quotes in the transcript.” These closing argument excerpts clearly demonstrate that the State focused heavily on asserted inconsistencies in the two statements during closing arguments. Additionally, the jurors never received an instruction from the trial court that they should not emphasize the written transcript of the testimony over other evidence offered during trial. Cf. Fuller, 873 A.2d at 1118 (holding that, under similar circumstances, the trial court should provide such an instruction to the jurors).

It is impossible here, as it will most often be the situation, to divine what actually transpired when the jury retired to deliberate on the issue of the guilt or innocence of Barnes. It is for these reasons that we cannot say beyond a reasonable doubt that the presence of both the statement to police and the written transcript of her prior testimony in the jury room during deliberations, where the inconsistencies between these two documents could be viewed side by side, did not contribute to the guilty verdict. Therefore, we conclude that the State has not sustained its burden to demonstrate that the trial-court error in this case was harmless. See DiGuilio, 491 So.2d at 1139; see also Young, 645 So.2d at 968 (holding that while allowance of videotaped statements of children in the jury room during deliberations might not constitute fundamental error, it could not be deemed harmless).

Accordingly, we are compelled to quash Barnes II and remand for a new trial.

It is so ordered.

WELLS, ANSTEAD, PARIENTE, QUINCE, CANTERO, and BELL, JJ„ concur.

      . See, e.g., Pearson v. State, 278 Ga. 490, 604 S.E.2d 180, 183 (2004) ("‘[W]ritten testimony,’ which merely duplicates a witness’ oral testimony or substitutes as a written record of his testimony should be withheld from the jury.”); Wright v. Premier Elkhorn Coal Co., 16 S.W.3d 570, 572 (Ky.Ct.App.1999) ("In general, testimonial evidence (such as a copy of a deposition) is not allowed in a jury room. The rationale behind banning such testimonial evidence from the jury room is the likelihood that the triers of fact may place more emphasis on written rather than spoken words since the written words are readily before them physically while the spoken words uttered at trial can only be conjured up by memory.”); State v. Brooks, 675 S.W.2d 53, 57 (Mo.Ct.App.1984) ("[T]he use of the depositions at trial simply took the place of testimony of live witnesses and, therefore, was testimonial in nature. Generally, exhibits ... which are testimonial in nature may not be given to the jury during their deliberations. ...”).


author: THOMAS, J.

text:
    Yvette HANNON, as personal representative of the Estate of Nathan Scott Hannon, and on behalf of all survivors, Petitioner, v. SHANDS TEACHING HOSPITAL AND CLINICS, INC., d/b/a Shands at Live Oak, Shands Medical Group of Live Oak, and Shands Healthcare; Robert Spindell, D.O., and B.S. Hegde, M.D., Respondents.
    No. 1D06-391.
    District Court of Appeal of Florida, First District.
    Nov. 16, 2006.
    John S. Mills of Mills & Carlin, P.A., Jacksonville; James W. Gustafson, Jr., of Searcy Denney Scarola Barnhart & Ship-ley, P.A., Tallahassee; and W. Roderick Bowdoin, Lake City, Attorneys for Petitioner.
    Susan L. Kelsey of Anchors Smith Grimsley, Tallahassee; John D. Jopling, Gainesville, for Respondent Shands Teaching Hospital and Clinics, Inc.
    Jennings L. Hurt, III, Henry W. Jewett, II, and Christian P. Trowbridge of Riss-man, Weisberg, Barrett, Hurt, Donahue & McLain, P.A., Orlando, for Respondent Robert Spindell, M.D.
    John S. Derr, Tallahassee, for Respondent B.S. Hegde, M.D.
   THOMAS, J.

In this petition for writ of certiorari, Petitioner asks this court to quash the trial court’s order compelling production of a non-party’s psychotherapy records. We grant the petition.

Petitioner initiated a wrongful death action against Respondents, alleging that Respondents’ negligence led to her minor son’s death. Petitioner, personal representative of Decedent, filed this suit on behalf of all survivors, as defined under Florida’s Wrongful Death Act; however, Decedent’s brother, “Rickey,” is not considered a survivor and is therefore barred from bringing a personal claim in this action, even though he was present when Decedent died.

During deposition, Petitioner’s grief expert, Dr. Hughes, testified that Rickey has anger management issues that have resulted from his brother’s death. Dr. Hughes testified that these anger problems have compounded Petitioner’s grief and have impacted the survivors’ emotional pain and suffering.

Following Dr. Hughes’ deposition, Respondent Dr. Spindell requested that the trial court compel Rickey to disclose his psychological records, as they were made an issue in the case through Dr. Hughes’ testimony. Rickey refused, and signed an affidavit stating that he did not give any person authorization to disclose his records. The trial court granted Respondents’ motion and compelled Rickey to provide his psychological records to Respondent. Production was stayed, pending review of the order by certiorari.

There is no question that Petitioner has the authority to claim the psychotherapist/patient privilege on Rickey’s behalf. § 90.503(3)(b), Fla. Stat. (2005). The privilege has statutory limitations and may be waived. Pursuant to section 90.503(4)(c), Florida Statutes (2005), there is no privilege

[f]or communications relevant to an issue of the mental or emotional condition of the patient in any proceeding in which the patient relies upon the condition as an element of his or her claim or defense or, after the patient’s death, in any proceeding in which any party relies upon the condition as an element of the party’s claim or defense.

(Emphasis added.) A plain reading of the statute clearly states that the exception applies when (1) the patient relies on his or her mental or emotional condition, and (2) the patient makes the condition an issue in the lawsuit. Neither of these facts is present here.

In Bandorf v. Volusia County Department of Corrections, this court held that the exception does not apply merely because the psychiatric records might contain information that would be relevant for impeachment purposes or in connection with a defense that the injuries complained of are the result of some preexisting mental or emotional condition. 939 So.2d 249 (Fla. 1st DCA 2006). We held that “the section 90.503(4)(c) exception applies only when the patient — rather than some party who opposes the patient in litigation— places his mental or emotional condition in issue.” Id. at 250 (emphasis in original). In Bandorf, the defendant was requesting the psychological records of a party to the lawsuit; Rickey, the patient here, is not a party to the lawsuit, therefore, it is impossible for him to make his mental or emotional condition an issue in this lawsuit. Certainly there is a distinction between claims and defenses made by Petitioner and claims and defenses made by Rickey. Rickey is not a party in this action and is pursuing no claims or defenses.

Respondent’s reliance on Amente v. Newman, 653 So.2d 1030 (Fla.1995), is unfounded, as it is distinguishable on two grounds from the situation before us. It can first be distinguished factually. In Amente, the doctor, a defendant in the case, was ordered to produce medical records of non-party patients. The court made it clear that all proper precautions were to be taken to protect the patients’ identity. Id. at 1032. Therefore, no privacy rights of any patient would be violated by the order. Here, not only is it the patient who is being asked to produce his own records, but neither the patient nor the patient’s doctor is a party in the lawsuit. It will be impossible for Rickey’s privacy to be protected.

Second, and more importantly, there was no statutory privilege raised in Amente. The issue before the court was merely whether the patient records were relevant and whether this relevancy outweighed the patients’ right to confidentiality of their medical files. Id. at 1031. Rule 1.280(b)(1), Florida Rules of Civil Procedure, which defines the proper scope of discovery, states, “Parties may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter of the pending action_” (emphasis added). No matter how relevant Rickey’s records may be to the pending action here, because they are privileged, they are not discoverable.

We, therefore, GRANT the petition for writ of certiorari and QUASH the trial court’s order authorizing release of the records.

ERVIN and WEBSTER, JJ., concur.


author: CANADY, Judge.

text:
    Jessie JACKSON Jr., Appellant, v. STATE of Florida, Appellee.
    No. 2D05-1491.
    District Court of Appeal of Florida, Second District.
    March 23, 2007.
    Rehearing Denied April 23, 2007.
    James Marion Moorman, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant.

      Bill McCollum, Attorney General, Tallahassee, and Timothy A. Freeland, Assistant Attorney General, Tampa, for Appel-lee.
   CANADY, Judge.

Jessie Jackson Jr. appeals an order revoking his probation which was based on an admission by Jackson that he violated a condition of his probation. Based on the revocation, Jackson was sentenced to five years in prison. Although no issue was preserved for appeal, Jackson contends on various grounds that the trial court erred in revoking his probation.

Among the arguments presented by Jackson is a claim that he is entitled to relief based on ineffective assistance of trial counsel that is apparent on the face of the record. The State has presented no argument in opposition to this claim. For the reasons we explain, we agree that Jackson is entitled to relief for ineffective assistance of trial counsel.

Jackson was subject to a probation condition requiring that he “have no contact with the victim directly or indirectly, including through a third person, unless approved by the sentencing court.” Jackson’s probation officer filed an affidavit of violation, alleging that Jackson violated the no-contact condition “by being at [the victim’s] residence” on a particular date. The victim’s testimony contradicted the allegation in the affidavit. The record of the proceedings before the trial court shows that the only “contact” between Jackson and the victim occurred when the victim called Jackson to request that Jackson provide financial assistance for the victim’s child, who was fathered by Jackson. The revocation of Jackson’s probation was predicated on Jackson’s admission to that telephone contact.

Although the telephone contact which was initiated by the victim may have constituted a technical violation by Jackson of the no-contact condition, it was not a willful and substantial violation. See McCumber v. State, 682 So.2d 1214, 1216 (Fla. 2d DCA 1996); see also Scott v. State, 485 So.2d 40, 41 (Fla. 2d DCA 1986). In any event, the telephone contact was not alleged as a violation in the affidavit. It thus could not be a basis for revocation. See Soto v. State, 727 So.2d 1044, 1046 (Fla. 2d DCA 1999); Butler v. State, 450 So.2d 1283, 1285 (Fla. 2d DCA 1984).

Jackson’s counsel permitted Jackson to enter an admission to a violation which was uncharged and which, even if charged, would be an insufficient basis for revocation. And when Jackson’s probation was revoked, counsel neither offered a contemporaneous objection nor otherwise sought to preserve an objection. Jackson argues that he was “denied effective assistance of counsel because counsel allowed his probation to be revoked, even though the evidence was insufficient, and failed to properly preserve the issue.” As noted above, the State does not answer this argument.

We agree that counsel’s “ineffectiveness is apparent on the face of the record and [that] it would be a waste of judicial resources to require the trial court to address the issue.” Blanco v. Wainwright, 507 So.2d 1377, 1384 (Fla.1987). There is no plausible strategic reason for the course of action chosen by counsel. The deficiency of counsel’s performance and the resulting prejudice to Jackson are manifest. See Lambert v. State, 811 So.2d 805, 807 (Fla. 2d DCA 2002); Holsclaw v. Smith, 822 F.2d 1041 (11th Cir.1987); Johnson v. State, 796 So.2d 1227, 1228-29 (Fla. 4th DCA 2001); Rios v. State, 730 So.2d 831, 832 (Fla. 3d DCA 1999); State v. Lopez, 107 Wash.App. 270, 27 P.3d 237, 240-41 (2001).

We therefore reverse the order revoking Jackson’s probation and remand for further proceedings.

Reversed and remanded.

CASANUEVA and STRINGER, JJ., Concur.