       Third District Court of Appeal
                             State of Florida

                       Opinion filed January 24, 2018.

                             ________________

                              No. 3D16-1081
                        Lower Tribunal No. 14-11822
                            ________________

                        Thomas Garrard Burton,
                                 Appellant,

                                     vs.

                          The State of Florida,
                                  Appellee.


      An Appeal from the Circuit Court for Miami-Dade County, Alberto Milian,
Judge.

     Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public
Defender, for appellant.

     Pamela Jo Bondi, Attorney General, and Marlon J. Weiss and Michael W.
Mervine, Assistant Attorneys General, for appellee.

Before EMAS, LOGUE and LUCK, JJ.

     LUCK, J.
        We grant the state’s unopposed motions to recall mandate and for rehearing,1

withdraw our prior opinion dated December 13, 2017, and substitute the following

in its place:

        Thomas Garrard Burton murdered Carlos Figueroa during a botched

robbery. A jury convicted Burton of first degree murder, and he was sentenced to

a mandatory term of life in prison. Burton appeals the trial court’s decision to

admit a video recording of his confession where he was wearing jail clothes and

handcuffs. Because the trial court did not abuse its discretion in finding that the

unfair prejudice of the jury seeing Burton in jail clothes and handcuffs did not

substantially outweigh the probative value of the video confession, we affirm.

                     Factual Background and Procedural History

        The murder. On the morning of November 6, 2002, Carlos Figueroa was

sitting outside his apartment with his son and another man, Antonio Carrero,

drinking coffee, when a car pulled up. There were two people in the car – a driver

and his passenger. The passenger got out of the car and asked the three men

drinking coffee for directions. They gave the passenger directions and the car went

on its way.

        The car returned a few minutes later. This time, the passenger got out of the

car holding a gun and yelled to the three men, “don’t move.” The passenger


1   We commend the state for moving to recall the mandate and rehear the case.

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pointed the gun at Figueroa. Figueroa had trouble getting his wallet out of his

pocket, so the passenger hit Figueroa on the head with the firearm three times. The

passenger then pointed the gun at Figueroa’s son when, suddenly, Carrero ran

away. The passenger fired three shots at the fleeing Carrero, but they all missed.

      The passenger then turned to Figueroa and shot him in the stomach. After

this last shot, Figueroa’s son struggled with the passenger for the gun.         The

passenger grabbed the son’s wallet and cellular telephone, left the gun, and ran for

the car, which drove away.

      Figueroa died six weeks later from the gunshot wound to his stomach. For

over a decade, the passenger was not identified and the case was cold.

      The cold case investigation. In 2013, detectives with the Miami-Dade police

department had the fingerprint examiner resubmit a latent fingerprint that had been

found at the crime scene to the national database to see if there was a match. The

latent fingerprint matched George Covington who was interviewed in connection

with the cold case. Further investigation ultimately led to Burton as a suspect in the

murder. The Miami-Dade detectives met with Figueroa’s son to conduct a

photograph lineup. The son identified Burton as the passenger.

      By then, Burton was serving a prison sentence in Pennsylvania. The Miami-

Dade detectives flew to Pennsylvania to meet with Burton. Burton was willing to

talk, waived his Miranda2 rights, and gave a video recorded statement. Burton told



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the detectives that his friend, Covington, picked him up in a stolen car and the two

drove to Figueroa’s apartment. Covington got out of the car holding a gun and

Burton followed. Burton explained that there was a physical altercation between

Covington and the other men. Covington asked Figueroa for the wallet. Burton

took the gun and hit Figueroa on the head. Burton then gave the gun back to

Covington who shot Figueroa. They fled in the car.

        The trial. Burton was indicted for first degree murder. Before his trial

began, Burton moved to have the jury hear the audio of his statement without the

video because on the video the jury could see that he was wearing “prison garb”

and “a chain around his waist hooked up to . . . his wrists.” The trial court, after

hearing argument from both sides and reviewing case law, denied the motion. The

jury found Burton guilty after watching the video, hearing Figueroa’s son identify

Burton as the shooter, and learning that Burton’s deoxyribonucleic acid (DNA)

was on a baseball cap left at the scene of the shooting.

                                 Standard of Review

        “A trial court’s ruling on the relevancy of evidence and whether or not the

probative value is outweighed by the danger of unfair prejudice is governed by an

abuse of discretion standard of review.” Peede v. State, 955 So. 2d 480, 499 (Fla.

2007). “[A] large measure of discretion rests in the trial judge to determine


2   Miranda v. Arizona, 384 U.S. 436 (1966).

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whether the probative value of the evidence is substantially outweighed by its

prejudicial effect.” Taylor v. State, 855 So. 2d 1, 22 (Fla. 2003)

                                     Discussion

      Burton contends the trial court abused its discretion in denying his motion to

exclude the video statement because the unfair prejudice of the jury seeing him in

his prison uniform and handcuffs substantially outweighed the probative value of

watching (as opposed to listening to) him confess. The state responds that the

jury’s exposure to Burton in prison garb and handcuffs was brief, incidental, and

out-of-court, and therefore not so prejudicial that it would require excluding the

video confession.

      “The prerequisite to the admissibility of evidence is relevancy. All evidence

tending to prove or disprove a material fact is admissible, unless precluded by

law.” Wright v. State, 19 So. 3d 277, 291 (Fla. 2009). “Despite the fact that all

relevant evidence is admissible, section 90.403 provides for the exclusion of

relevant evidence 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.’” Taylor, 855 So. 2d at 21-22 (quoting §

90.403, Fla. Stat.).

      Only when that unfair prejudice substantially outweighs the probative
      value of the evidence is the evidence excluded.
      ....



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      ... In weighing the probative value against the unfair prejudice, it is
      proper for the court to consider the need for the evidence; the
      tendency of the evidence to suggest an improper basis to the jury for
      resolving the matter, e.g., an emotional basis; the chain of inference
      necessary to establish the material fact; and the effectiveness of a
      limiting instruction.

State v. McClain, 525 So. 2d 420, 422 (Fla. 1988) (quoting 1 C. Ehrhardt, Florida

Evidence § 403.1 at 100-03 (2d ed. 1984)).

      Here, there was no dispute the video confession was relevant.          Burton

concedes “the statement made . . . to the police was relevant.” The issue in this

case was whether the probative value of the video confession was substantially

outweighed by its unfair prejudice to Burton. We agree with the trial court that it

was not.

      Probative value. The probative value of the video confession cannot be

overstated. Burton admitted he was the passenger in the car, had the gun in his

hand, and hit Figueroa. Figueroa’s murder was fourteen years before the trial.

Even with the son’s identification and the mixture of DNA on the cap left at the

scene, the non-confession evidence was not overwhelming.                The son’s

identification could reasonably be questioned given the decade between the murder

and the identification of Burton in the photograph lineup. The DNA evidence only

showed that Burton left his cap at the scene at some point – it did not put a gun in

his hand or prove he participated in the murder.




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      Even so, Burton argues there was little additional probative value to be

gained from playing the video version of the confession rather than an audio

version where the jury could still hear what Burton said to the detectives. Burton’s

argument minimizes the importance the criminal justice system places on the jury

seeing evidence and testimony in assessing its credibility. If Burton was right that

hearing rather than seeing testimony was all that was necessary for the jury to

assess credibility, then the criminal trial need be no more than reading deposition

testimony, or playing prerecorded audio statements, before the jury decides the

defendant’s guilt or innocence.       But our adversarial system isn’t a test of

competing affidavits because a critical part of the jury’s decision-making process

is watching, as well as listening, for cues to decide which evidence and testimony

is reliable and credible (and which is not).

      Specifically, in this case, the jury was instructed that in determining whether

evidence was reliable, it “should consider how the witness has acted, as well as

what they said.” For a confession, like Burton’s statement, the jury was instructed

to treat it with “caution” and “great care,” and consider the “total circumstances,”

before determining whether it was made knowingly and voluntarily. Watching

Burton’s statement was essential to the jury determining whether the confession –

including the part where Burton said Covington was the shooter and not him – was

reliable. The jury also had to watch how Burton acted and the circumstances of his



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confession to determine whether his statement that he was involved in the murder

was freely made.

      Consider, for example, the statement of a hostage that he was being treated

well by his captors. The audio of that statement might tell us one thing. But if the

video showed the hostage with bruises and blood on him, and one of the

kidnappers holding a gun to the hostage’s head, that would tell us another thing.

So it is here. Seeing Burton’s confession, the critical piece of evidence in this

case, allowed the jury to assess its reliability and voluntariness in a way the audio

statement would not.

      Unfair prejudice. The Florida Supreme Court has twice found no abuse of

discretion where the trial court admitted video of a defendant confessing while in

jail clothes and handcuffs. In Singleton v. State, 783 So. 2d 970 (Fla. 2001), the

trial court admitted a one-and-a-half minute video of the defendant answering a

reporter’s questions “wearing jail clothing and handcuffs while in custody on the

night of his arrest.” Id. at 976. The Court held it was not error to admit the video

because the jury’s “brief exposure to [the defendant] in a prison uniform while

handcuffed d[id] not outweigh the probative value of [the defendant]’s admission

in the video that he killed the victim.” Id.

      In Alston v. State, 723 So. 2d 148 (Fla. 1998), the trial court admitted a

video of the defendant answering reporters’ questions during a perp walk3 from the



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police station to the jail. Id. at 152, 155-56. The defendant argued “the unfair

prejudice to [him] substantially outweighed any probative value of the evidence.”

Id. at 156. The Florida Supreme Court concluded the trial court properly balanced

the probative value and unfair prejudice, and found there was “no abuse of

discretion in admitting the evidence.” Id. at 157; see also Black v. State, 120 So.

3d 654, 655 (Fla. 1st DCA 2013) (“[W]e are persuaded that the trial court’s

decision allowing the state to present to the jury both the audio and visual portions

of appellant’s brief, videotaped police interview, in which appellant could be seen

wearing a jail uniform, handcuffs, and leg chains, was not an abuse of the trial

court’s discretion.”).

      If anything, on the unfair-prejudice scale Burton’s confession video was less

prejudicial than the ones in Singleton and Alston because there was less exposure

to prison garb and handcuffs. While Burton’s video statement was longer than the

videos in Singleton and Alston, the clothes he was wearing do not look like prison

clothes. The video showed Burton wearing a navy-colored shirt with dark pants

while he was sitting at a conference table. Burton was not wearing black-and-

white stripes or a bright orange jumpsuit that one would typically think of as prison

garb. There were no markings on Burton’s clothes or inmate numbers that would

3“A ‘perp walk’ involves the practice of walking a suspect after an arrest through a
public place to create an opportunity for the media to photograph or videotape the
defendant in a highprofile case.” Brown v. Pete, No. CIV.A. 12-11687-JLT, 2013
WL 141671, at *1 n.1 (D. Mass. Jan. 8, 2013)

                                         9
indicate he was in prison. What Burton was wearing on the video does not result

in unfair prejudice any more than a defendant confessing while wearing a dark

sweatshirt and pants is prejudiced by playing his video confession for the jury.

      Also, like his nondescript clothes, Burton was interviewed in a generic-

looking conference room. There were no indications from the room that Burton

was in jail or prison at the time of the confession. This is different and less

prejudicial than the video in Alston, where the defendant was seen being

“walk[ed]-over from the police station to the jail.” Alston, 732 So. 2d at 155.



      The video does show Burton in handcuffs but the Florida Supreme Court has

said that a jury’s brief view of the defendant in the courthouse with handcuffs or

shackles is not so prejudicial as to require a new trial. See Hernandez v. State, 4

So. 3d 642, 658 (Fla. 2009) (“We have long held that a juror’s or prospective

juror’s brief, inadvertent view of a defendant in shackles is not so prejudicial as to

warrant a mistrial. Thus, the mere fact that a prospective juror saw the shackled

ankles of a person whom he believed to be Hernandez underneath a chalkboard set

up in the hallway outside the courtroom is not sufficient, standing alone, to warrant

a mistrial or dismissal of the venire.” (citations omitted)); Cooper v. State, 739 So.

2d 82, 85 n.8 (Fla. 1999) (“Cooper, however, was not tried in shackles, and the fact




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that jurors may have inadvertently seen him in shackles when he was being

transported to or from the courtroom does not require reversal.”).

      Here, the jury’s exposure to the handcuffs was brief. The trial was spread

out over five days, and the video confession was only sixteen minutes of those five

days. The jury’s exposure to Burton in handcuffs also was one step removed from

a defendant shackled in court during trial. The prejudice of seeing a defendant in

prison garb and handcuffs in the courthouse during a trial is far more visceral and

lasting than seeing Burton interviewed by law enforcement officers years earlier in

a prerecorded video. Just as in Singleton and Alston, the brief, non-courtroom

view of handcuffs on a video recording was not unfair prejudice that would

substantially outweigh the probative value of Burton’s confession.

                                    Conclusion

      The trial court did not abuse the large measure of discretion given to it in

determining the unfair prejudice of the video did not substantially outweigh its

probative value. We affirm Burton’s conviction and life sentence for first degree

murder.

      Affirmed.




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