Filed: Nov. 25, 2020
Latest Update: Dec. 05, 2020
Third District Court of Appeal
State of Florida
Opinion filed November 25, 2020.
Not final until disposition of timely filed motion for rehearing.
________________
No. 3D19-628
Lower Tribunal No. 16-24456
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Marcel Ashley,
Appellant,
vs.
The State of Florida,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Jose L. Fernandez
and Marisa Tinkler-Mendez, Judges.
Carlos J. Martinez, Public Defender, and Robert Kalter and Susan Lerner,
Assistant Public Defenders, for appellant.
Ashley Moody, Attorney General, and Brian H. Zack, Assistant Attorney
General, for appellee.
Before EMAS, C.J., and LOGUE and MILLER, JJ.
EMAS, C.J.
INTRODUCTION
Marcel Ashley (“Ashley”) appeals from his convictions and sentences for,
inter alia, armed burglary and armed robbery. Ashley contends that the trial judge
committed reversible error by requiring Ashley’s mother to take the witness stand
for the sole purpose of having her invoke the Fifth Amendment in front of the jury
and refuse to testify. We agree and reverse and remand for a new trial. 1
FACTS AND BACKGROUND
In November 2016, the victim was abducted from his home by an armed
intruder, who forced the victim to drive to an ATM and withdraw money from the
victim’s account. After returning to the victim’s home, the intruder fled in the
victim’s car with the money obtained from the ATM, along with other items taken
from the home.
Police later tracked the victim’s car to a gas station, but upon arrival the
vehicle was gone. Police were able to recover video surveillance from the gas
station, which depicted two men near the victim’s car. This video was later released
to the media, after which Ashley’s mother (Ms. Hope) contacted the police,
identified one of the men in the video as her son, and provided police with her son’s
phone number. Ms. Hope also signed the back of a photograph of her son, which
1
Given our disposition on this issue, we find it unnecessary to reach the other claims
of error raised by Ashley in this appeal.
2
the police later used in a photo lineup, at which the victim identified Ashley as the
armed intruder. Ashley was subsequently arrested.
Ashley’s first trial ended in a hung jury. At the second trial, the State sought
to call Ms. Hope (who was not called as a witness in the first trial) to provide
testimony. The State was advised, however, that Ms. Hope would invoke her Fifth
Amendment right and would refuse to testify at trial against her son.
At a hearing conducted outside the presence of the jury, Ms. Hope
(represented by counsel) reaffirmed to the trial court that she would invoke her Fifth
Amendment right and refuse to testify if called to the witness stand. The trial court
ordered Ms. Hope to testify, and advised her that she would be held in contempt if
she continued to refuse. 2 Nonetheless, she persisted in her refusal to testify, and the
2
The trial court determined that Ms. Hope’s refusal to testify could not validly be
based on a Fifth Amendment privilege as there was no reasonable basis to believe
her testimony might incriminate her. See, e.g., State v. Stahl, 206 So. 3d 124 (Fla.
2d DCA 2016) (noting that in order for witness to establish a proper invocation of
the Fifth Amendment privilege, he must establish, inter alia, that he will be
incriminated). The State contends that no error was committed because Ms. Hope’s
refusal to testify was not proper—that is, she had no legitimate right to invoke the
Fifth Amendment because she had no reasonable apprehension that she would
incriminate herself by her testimony under oath. This argument misses the mark.
Whether or not the witness properly invoked her Fifth Amendment right does not
control whether the trial court errs in requiring the witness to invoke that right in
front of the jury. Indeed, this case well illustrates the reason for this. The less likely
it appears that Ms. Hope would incriminate herself by her testimony, the stronger
the implication that her refusal to testify is designed to avoid incriminating her son,
the defendant. In other words, the potential for prejudice is higher when the witness’
motive for refusing to testify is manifestly not self-protective, but defendant-
protective. Given that the witness in this case was the defendant’s own mother, the
3
trial court, following the hearing, found her in direct criminal contempt of court. 3
The court recessed trial for the weekend and agreed to temporarily defer sentencing
so Ms. Hope could reconsider her decision.
When trial resumed, Ms. Hope again indicated she would not testify.
Nevertheless, and over the objection of defense counsel and counsel for Ms. Hope,
the trial court required her to take the witness stand and invoke her Fifth Amendment
right in front of the jury. The State also indicated the need to call Ms. Hope to the
witness stand for the ostensible purpose of establishing her “unavailability” as a
witness so that the State could introduce evidence that it claimed would otherwise
be excluded as hearsay.
State had to know that forcing the mother to invoke her Fifth Amendment right in
front of the jury would lead the jury to the inescapable conclusion that she had
evidence that incriminated her son, and that she was not going to testify about it at
her son’s trial. Thus, the State was able to “incriminate” the defendant in this case
not with evidence, but with inferences drawn from a refusal to provide evidence.
3
While not material to our decision, it remains important to note that the trial court
erred in holding Ms. Hope in direct criminal contempt and imposing a sentence for
same. Instead, the proper procedure to be followed when a witness refuses a valid
court order to testify is one for direct civil contempt. See Pedroso v. State, 450 So.
2d 902 (Fla. 3d DCA 1984) (explaining generally the differences between civil and
criminal contempt). While the court could validly take Ms. Hope into custody for
her refusal to comply with the trial court’s order, the purpose of civil contempt is not
to punish the contemnor but to coerce compliance with the valid court order to
testify. Ponder v. Ponder,
438 So. 2d 541, 542 (Fla. 1st DCA 1983). In other words,
like any other individual held in custody on a civil contempt order, Ms. Hope “carries
the key to [her] cell in [her] own pocket.” Pugliese v. Pugliese,
347 So. 2d 422, 424
(Fla. 1977) (additional citations omitted). As soon as she testifies, she has complied
with the trial court’s order, purging the civil contempt and leading to her release.
4
The following testimony of Ms. Hope was then elicited:
STATE: Ma'am, can you please state your name for the record.
MS. HOPE: I refuse to. I don't want to testify.
STATE: You won't state your name?
MS. HOPE: No. I plead the 5th.
STATE: You plead the 5th, okay.
MS. HOPE: Yes.
STATE: Okay. Do you have any children? Is that a yes? Your
Honor, I would ask --
COURT: You need to respond, Madam.
MS. HOPE: I refuse, Your Honor.
COURT: All right. Next question.
STATE: Marcel Ashley is your child. Correct?
DEFENSE: Objection. Leading.
STATE: I ask the Court to treat [Ms. Hope] as a hostile witness.
THE COURT: Overruled.
STATE: You can answer.
MS. HOPE: I refuse.
STATE: Judge, can we go sidebar?
5
At sidebar the State again requested permission to treat Ms. Hope as a hostile
witness and the trial judge denied the request, suspended the testimony of Ms. Hope
and she gave no further testimony in the case.
DISCUSSION AND ANALYSIS
Florida law is clear that it is improper for the State to call a witness, who is
closely identified with the defendant, to testify before the jury when the State knows
that the witness will invoke her Fifth Amendment right against self-incrimination
and refuse to testify. See Apfel v. State, 429 So. 2d 85, 86 (Fla. 5th DCA 1983)
(holding: “where the state, knowing that a witness will assert his right against self-
incrimination, nevertheless calls that witness who is closely identified with the
defendant or similarly implicated and the witness does in fact claim the privilege,
the defendant is thereby prejudiced . . . . Where the court and the prosecution are
aware that a witness will invoke the privilege, it is improper for the court to permit
the jury to hear the witness invoke his privilege.) See also Hunter v. State,
8 So. 3d
1052, 1066 n.6 (Fla. 2008) (“The State may not call a witness to testify that it knows
will invoke his or her Fifth Amendment right against self-incrimination. Richardson
v. State,
246 So. 2d 771, 777 (Fla. 1971). Nor may the defense. Faver v. State,
393
So. 2d 49, 50 (Fla. 4th DCA 1981).”); Kaplow v. State,
157 So. 2d 862 (Fla. 3d DCA
1963); Laramee v. State,
90 So. 3d 341, 345 n.7 (Fla. 5th DCA 2012) (noting it is
error for a trial court to permit a witness, who is expected to invoke his Fifth
6
Amendment privilege, to testify in the presence of the jury solely for that purpose);
Hankerson v. State, 347 So. 2d 744 (Fla. 4th DCA 1977) (holding defendant was
prejudiced by court forcing his co-defendant to take the stand and invoke his Fifth
Amendment privilege in front of the jury).
Moreover, the trial court’s action in this case was unduly prejudicial. Ms.
Hope provided no relevant testimony to the jury. Indeed, she provided no actual
testimony at all, other than persisting in her refusal to provide testimony. Therefore,
the only “relevance” to her testimony was the inference the jury likely drew from
this staged refusal to testify: That Ms. Hope did not want to provide incriminating
evidence against someone with whom she was closely identified—her own son. 4
While one cannot deny the dramatic courtroom moment created by a witness
“taking the Fifth” in front of a jury, where the court knows in advance the witness
will refuse to testify even upon pain of contempt, it is impermissible to require the
witness to take the stand and do so, as it can only serve to create “irreparable damage
and injury in the eyes of the jury.” Richardson, 246 So. 2d 777.
4
Indeed, the trial court’s explanation for requiring Ms. Hope to testify highlights the
prejudicial potential involved in these situations:
It has an impact on the trial. Don’t you think the jury should know
[that] she is listed as a State witness? She is refusing to testify.
7
The State, as the beneficiary of the trial court’s error, shoulders the burden of
demonstrating beyond a reasonable doubt that requiring Ms. Hope to take the stand
and refuse to testify in front of the jury did not contribute to the jury verdict. State
v. DiGuilio, 491 So. 2d 1129 (Fla. 1986). Upon our consideration of the record, we
conclude that the State has failed to meet that burden.
Finally, we reject as invalid the State’s proffered reason for insisting on
calling Ms. Hope to the witness stand. The State asserted the need to demonstrate
that the witness was “unavailable” so it could introduce hearsay evidence at trial.
This argument, however, is devoid of merit. The evidence sought to be admitted—
a recorded phone call between Ashley and Ms. Hope—was independently
admissible as an “admission” without any need to establish a witness’ unavailability.
See § 90.803(18), Fla. Stat. (2018)(providing: “A statement that is offered against a
party and is . . . [t]he party’s own statement” is an admission and may be introduced
into evidence without regard to the availability of the declarant). 5
Additionally, even if the State had been required to make a showing that Ms.
Hope was unavailable as a witness before seeking to introduce this evidence, such a
foundational showing of unavailability is not to be made in front of the jury. It is
5
To the extent that the State sought to introduce not only Ashley’s end of the
conversation, but Ms. Hope’s end as well, Ms. Hope’s statements were admissible
as non-hearsay to place into proper context the statements made on the other end of
the conversation by Ashley. See, e.g., Johnson v. State, 653 So. 2d 1074 (Fla. 3d
DCA 1995); Bowens v. State,
80 So. 3d 1056 (Fla. 4th DCA 2012).
8
instead a determination to be made by the trial court. Indeed, a hearing had already
been held (outside the presence of the jury) at which the trial court concluded Ms.
Hope would persist in her refusal to testify despite the trial court ordering her to do
so, and held her in contempt for her continued refusal. In other words, the trial court
had already determined that Ms. Hope was “unavailable” as a witness, as that term
is expressly defined in Florida’s Code and Rules of Evidence. See § 90.804(1)(b),
Fla. Stat. (2018) (providing in pertinent part that “unavailability as a witness” means
that the declarant “[p]ersists in refusing to testify concerning the subject matter of
the declarant’s statement despite an order of the court to do so”). No further showing
was required, and no such showing in front of the jury was permissible.
CONCLUSION
The State and the trial court were aware that Ms. Hope would refuse to testify
at the trial of her son if called by the State to the witness stand. The trial court had
already held a hearing, ordered Ms. Hope to testify, and held her in contempt for
persisting in her refusal to testify despite the trial court’s order. There was no valid
basis for the State to call Ms. Hope as a witness, and the trial court committed
reversible error in requiring her to take the witness stand for the sole purpose of
having her invoke the Fifth Amendment in front of the jury and refuse to testify. The
State has failed to demonstrate that this error was harmless. We therefore reverse
and remand for a new trial.
9
