FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
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                         No. 1D17-1594
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JOSHEA J. GILLIAMS,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
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On appeal from the Circuit Court for Escambia County.
Jan Shackelford, Judge.

                         January 22, 2019


PER CURIAM.

     In this second-degree murder case, defendant Joshea J.
Gilliams argues that the trial court erred in preventing him from
cross-examining the medical examiner about other possible
intervening causes of the victim’s death. We disagree. A trial court
has discretion to limit relevant evidence, including that which may
be revealed in cross examination, when the “probative value is
substantially outweighed by the danger of unfair prejudice,
confusion of issues, misleading the jury, or needless presentation
of cumulative evidence.” Fla. Stat. § 90.403. The Florida Supreme
Court long ago held:

        A defendant cannot escape the penalties for an act
    which in point of fact produces death, which death might
    possibly have been averted by some possible mode of
    treatment. The true doctrine is that, where the wound is
    in itself dangerous to life, mere erroneous treatment of it
    or of the wounded man suffering from it will afford the
    defendant no protection against the charge of unlawful
    homicide.

Johnson v. State, 

, 895 (Fla. 1912) (quoting Daughdrill
v. State, 

, 387 (Ala. 1896)). The rule has since been that
where a defendant inflicts a wound that is life threatening,
“supervening lack of optimal medical attention or affirmative
medical malpractice is not an intervening cause of the victim’s
death.” State v. Smith, 

, 196 (Fla. 3d DCA 1986)
(citing Hallman v. State, 

(Fla. 1979)); see also Rose
v. State, 

, 200 (Fla. 4th DCA 1991) (on motion for
rehearing, the court held that evidence of medical malpractice is
irrelevant unless it can be shown to be the sole cause of death).

     In Gilliams’s case, the medical examiner gave testimony in
deposition and at trial that the victim would have died had he not
received medical attention and that the cause of death was a
gunshot wound of the chest/abdomen. The trial court was within
its discretion in restricting Gilliams’s counsel from questioning the
medical examiner on intervening causes of death because it was
“not relevant to a legally recognizable defense in this case.” The
bullet wound was a life-threatening injury for which medical
malpractice or lack of optimal medical care was not a legally valid
defense under the circumstances.

    AFFIRMED.

MAKAR, WINOKUR, and WINSOR, JJ., concur.

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    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
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Andy Thomas, Public Defender, Tallahassee, and Victor D. Holder,
Assistant Public Defender, for Appellant.

Ashley Brooke Moody, Attorney General, Tallahassee, and
Amanda D. Stokes, Assistant Attorney General, Tallahassee, for
Appellee.




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