       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                           CARLOS CADAVID,
                              Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D17-1224

                            [October 31, 2018]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Michael A. Robinson, Judge; L.T. Case No. 14-2113-
CF10A.

  Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant
Public Defender, West Palm Beach, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Anesha Worthy,
Assistant Attorney General, West Palm Beach, for appellee.

FORST, J.

    Appellant Carlos Cadavid (“the defendant”) appeals from his conviction
for first degree murder with a firearm. He argues that the trial court erred
in prohibiting him from speaking to his attorney during a ten-minute
recess between his direct and cross-examinations. The State concedes
this error, but argues it was harmless under the circumstances. We agree
with the State and affirm. 1

                               Background

  The State indicted the defendant for the February 14, 2014 first degree
murder of Krizia Nunez with a firearm.



1 We also affirm with respect to the defendant’s second argument, without
comment.
    The evidence at trial revealed the following. Around 3:30 a.m. on the
morning in question, the defendant called 911 from the motel room where
he and the victim were staying. He told the operator that his girlfriend had
just shot herself with his gun. The defendant also told responding officers
and the detective at the scene that the victim had shot herself. In the
motel room, police found the victim lying on the floor and the defendant’s
firearm a few feet from her body. Police also found an unfired round in a
shoe near the victim’s feet, a spent shell casing on the nightstand under a
pizza box, and two boxes of ammunition in a backpack next to the bed.
Another cartridge was found in the victim’s car. Crime lab analysis of
these items, and the fragment recovered from the victim’s body, revealed
that they all matched to the defendant’s firearm.

     Over the defendant’s objection, his videotaped police interview was
played for the jury. At first during the interview, he maintained his story
that the victim shot herself. He said that he and the victim had “popped
Molly” and were supposed to go to Fort Lauderdale for his friend’s birthday,
but the victim started “acting up” and did not want to go out. They argued,
and when the defendant told the victim he was done with her and leaving,
the victim grabbed his gun off the bed and shot herself. Later in the
interview, when confronted with physical evidence contradicting his story,
the defendant admitted he shot and killed the victim. He claimed that
voices coming from the TV were commanding him to kill the victim or she
would kill him, so he pulled his gun from his holster and shot the victim.
He explained to the detectives: “especially when you’re on drugs like Molly
. . . you start hallucinating.” When asked about the unfired round found
on the floor, the defendant explained that when he cocked the gun it was
loaded so the cartridge fell on the floor. He then shot the victim.

    The defendant told detectives he lied about the victim shooting herself
at first because he feared prison. To support his story that the victim shot
herself, he moved her body a bit and rubbed the gun on her hand. He
thought about disposing of the body, but he could not find the victim’s car
keys. About a half hour after he shot the victim, he decided to call 911.

   After the police interview was played for the jury, the defendant testified
on his own behalf and gave a third version of the events that led to the
victim’s death. He admitted shooting the victim but, for the first time,
claimed it was an accident. The two had known each other only a few days
after meeting at a club. The night before the incident, they checked into a




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motel, and both “ingested” methamphetamine 2 while driving to meet the
defendant’s friend at a lounge in Fort Lauderdale. Before they got to the
lounge, the victim’s demeanor changed and she insisted they return to the
motel. The defendant had no choice because they were in the victim’s car
and she was driving. When they got back to the motel, the defendant
smoked a joint. He was upset because he had wanted to stay out. He
called his friend, who agreed to pick him up, but the defendant told the
friend he would call him back. The victim did not want the defendant to
leave and continued to act erratically. The defendant put his bag on the
bed and started packing his things. His gun was on the end of the bed.
The defendant said he had purchased the gun “for protection” a few weeks
earlier. Two years before this incident, he had been shot in the right leg,
and now has a prosthetic limb.

    The defendant next testified that, at this point, the victim grabbed the
defendant and asked him to stay. He pushed her away. She came at him
again and he pushed her a little harder. The victim then “snapped,” tried
to slap the defendant and reached for his gun. He grabbed the gun from
her hand. The victim then got on her knees and grabbed the defendant’s
leg. According to the defendant, as he took a step back, he “put pressure
on [his] toe on [his] prosthetic it immediately fold[ed] so [he] went directly
down and she was down there with [him].” The defendant said, “we both
hit the ground but, you know what I’m saying, I think, I’m not sure if I hit
the refrigerator or what but when I tried to catch myself I accidentally
squeezed the trigger and the gun went off.” The victim was lying face down
and not moving, so the defendant shook her and tried to wake her up.
Eventually, he called 911. The defendant lied to the 911 operator and
responding officers about the victim shooting herself because he was
scared and did not think the police would believe him if he told the truth.

   At one point on direct, the defendant uttered, without prompting by his
counsel: “I have never been in trouble before.” The trial court immediately
held a sidebar. The State argued the defendant had just opened the door
to his prior arrests. The trial court told defense counsel “to clean it up
because he just lied,” otherwise the State could question him about the
prior arrests. Defense counsel said he would “come back to it,” but never
did.

   Regarding his second story to detectives, that voices from the TV told
him to kill the victim, the defendant said he just made that up because

2The victim’s toxicology report contained “unconfirmed positive” results for
amphetamines or methamphetamine.



                                      3
“[t]hey had me in there for so long that I was just like I’m going to give
them what they want and just, I felt like I was blaming myself and I was
like I was going to take it.” His “mind was fried”; he was “[f]reestyling.”

   After the defendant’s direct testimony, the court excused the jury for a
10-minute break, during which the following discussion took place:

      [DEFENSE COUNSEL]: . . . When we come back . . . Judge,
      I want to discuss that whole opening the door issue . . . .

      THE COURT: All right. Sir, don’t talk to anyone at all, okay.

      THE DEFENDANT: Yes, Sir.

      THE COURT: If you need to go to the bathroom we’ll take you
      to the bathroom. You may be seated. Have a seat. If you
      want to go to the bathroom that’s fine. Don’t talk to anybody.

      [DEFENSE COUNSEL]: Judge, in that respect would that not
      include his counsel thought [sic], I think –

      THE COURT: Not right now, no.

      [DEFENSE COUNSEL]: Specifically –

      THE COURT: Counsel, let me tell you something, . . . I took a
      break, I’m going to take a break, Cross-Examination is going
      to happen, basically you said that’s enough and that’s going
      to happen. I appreciate it.

      [DEFENSE COUNSEL]: But specifically –

      THE COURT: All right, 10 minutes. We’re off the record.

After the short recess, the discussion resumed:

      [DEFENSE COUNSEL]: Judge, I want the record to be clear
      that I obeyed the Court’s admonition not to speak to my client
      during this break. . . . And I would again object and ask the
      Court to allow me to speak to my client in the middle of his --
      even though he is on the stand and it’s in the middle he is
      about to do Cross-Examination I would like to consult with
      him privately at this time.




                                    4
      THE COURT: Well, that’s up to the State. . . .

      [STATE]: No. . . . I’m not stipulating to that.

      THE COURT: I appreciate it. Thank you.

On cross-examination, the State never mentioned the prior arrests. The
defendant did not dispute that his first two stories to police were lies, and
agreed with the State on almost every question, generally confining his
response to “Correct.” He also agreed the detectives never threatened him
or attempted to coerce him into making statements.

   After cross-examination, the defendant unsuccessfully moved for a
mistrial. Citing this court’s opinion in Mears v. State, 183 So. 3d 1230
(Fla. 4th DCA 2016), the defense argued “it’s fundamental error for a client
not to be able to consult with his lawyer even when he is on the stand,
even if he is in the middle of cross-examination.” The State noted that it
never went into the arrests issue, and the trial court agreed, stating: “The
reason why you wanted to talk to your client was moot because he didn’t
do anything, he did not go into that issue.”

   The jury found the defendant guilty as charged and that he actually
possessed and discharged a firearm resulting in death. The defendant
moved for a new trial, arguing in part that the court erred by not granting
a mistrial when it prohibited defense counsel from conferring with the
defendant during the recess between direct and cross-examination. The
court denied the motion and sentenced the defendant to life in prison with
a twenty-five-year mandatory minimum sentence. This appeal followed.

                                 Analysis

   The defendant argues the trial court reversibly erred in denying him an
opportunity to consult with his counsel during the brief recess in-between
the defendant’s direct testimony and cross-examination. The State
concedes error, but argues it was harmless in the context of the case. We
agree with the State.

   We reiterated in Mears that “a defendant has the right to consult with
his attorney during a recess even if he is on the stand,” and that:

      “[N]o matter how brief the recess, a defendant in a criminal
      proceeding must have access to his attorney. The right of a




                                      5
      criminal defendant to have reasonably effective attorney
      representation is absolute and is required at every essential
      step of the proceedings.         Although we understand the
      desirability of the imposed restriction on a witness or party who
      is on the witness stand, we find that to deny a defendant
      consultation with his attorney during any trial recess, even in
      the middle of his testimony, violates the defendant’s basic right
      to counsel.”

183 So. 3d at 1232 (quoting Burgess v. State, 117 So. 3d 889, 892-93 (Fla.
4th DCA 2013)). Indeed, “Florida law affords greater protection of a
defendant’s right to counsel than federal authority requires.”         Id.
(quoting Leerdam v. State, 891 So. 2d 1046, 1049 (Fla. 2d DCA 2004)).

   Because the State concedes error, the only issue on appeal with respect
to this issue is whether the error was harmless. See Bova v. State, 410
So. 2d 1343, 1345 (Fla. 1982) (“[W]e disapprove the decision of the district
court as to the attorney-client consultation issue, but, because we find the
error harmless, approve the result.”). “The error of denying access to
counsel during a recess called immediately prior to cross-examination of
the defendant has been found not to be harmless when the defendant’s
performance      on   cross-examination      could    have    affected   the
verdict.” Leerdam, 891 So. 2d at 1051 (citing Thompson v. State, 507 So.
2d 1074, 1075 (Fla. 1987)).

   In this case, the defendant’s performance on cross-examination could
not have affected the verdict. While his credibility was at issue, on direct
he opened the door to the fact that he had lied to police a second time
about how the victim was shot. On cross, which was relatively brief (only
22 of 892 pages of transcript), his testimony was cumulative to his
testimony on direct. The defendant did not dispute his lies, and agreed
with the State on almost every question. While he disputed his level of
sobriety during the police interview, he had already impeached himself on
direct by stating that methamphetamine does not make him hallucinate,
disoriented, or crazy, but “just levels [him] out” when his leg is bothering
him. Moreover, the videotape of the interview—which depicts an alert,
calm, coherent, and cooperative defendant—speaks for itself.

   The defendant likens his case to Thompson, in which the Florida
Supreme Court granted a new trial because “the [trial] court precluded the
defendant from consulting with his counsel during recess.” 507 So. 2d at
1074. Thompson, however, is distinguishable. In Thompson, the State
“was granted a thirty-minute recess for the sole purpose of researching



                                     6
ways to impeach [Thompson] regarding a subsequent arrest which his
lawyer had apparently advised him would be inadmissible.
Thus, Thompson was denied the guidance and support of his attorney
when he needed it most (i.e., when the State was preparing for a major
attack on his credibility).” Id. at 1075. The Court held that “Thompson’s
credibility was a crucial issue in his trial,” and denial of consultation with
counsel left Thompson “nervous [and] confused.” Id.

   Here, unlike in Thompson, the record does not reflect that the defendant
was nervous or confused on the stand. Moreover, the apparent primary
reason for defense counsel’s request to consult with his client—the
defendant’s direct testimony that he had never been in trouble before,
when in fact he had a prior arrest record—became moot, as the State never
raised the matter on cross.

    Burgess is similarly distinguishable, where “[t]he reason for the state’s
request for the recess was to determine whether it should ask for a mistrial
due to a statement which the defendant made during his testimony,” and
“[p]rohibiting the defendant from speaking with his counsel during the
recess deprived the defendant of counsel’s advice as to whether to continue
or abandon that line of testimony.”         117 So. 3d at 893.         Such
circumstances did not exist here.

                                Conclusion

    There is no reasonable possibility that the trial court’s refusal to allow
the defendant to speak to his counsel during the short break impacted the
jury’s verdict in this case. See State v. DiGuilio, 491 So. 2d 1129, 1138-39
(Fla. 1986). Accordingly, we hold that the error was harmless, and we
affirm the judgment of conviction.

   Affirmed.

WARNER and MAY, JJ., concur.

                          *           *          *

   Not final until disposition of timely filed motion for rehearing.




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