         IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FIFTH DISTRICT

                                               NOT FINAL UNTIL TIME EXPIRES TO
                                               FILE MOTION FOR REHEARING AND
                                               DISPOSITION THEREOF IF FILED

DESMOND T. KENNER,

             Appellant,
 v.                                                   Case No. 5D16-1192

STATE OF FLORIDA,

           Appellee.
________________________________/

Opinion filed December 16, 2016

Appeal from the Circuit Court
for Orange County,
Renee A. Roche, Judge.

James S. Purdy, Public Defender, and Noel
A. Pelella, Assistant Public Defender,
Daytona Beach, for Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Robin A. Compton,
Assistant Attorney General, Daytona
Beach, for Appellee.


EDWARDS, J.

      A sentence cannot stand if it is or appears to be based in part on a defendant’s

decision to maintain his innocence even after being found guilty. Desmond Kenner

(“Appellant”) appeals a conviction of second-degree murder with a firearm following his

second jury trial on the same charges. His first conviction was reversed because of an

improper jury instruction. Kenner v. State, 48 So. 3d 117 (Fla. 5th DCA 2010). In the

present appeal, Appellant raises four issues. We affirm his conviction and specifically
affirm the denial of Appellant’s motion for judgment of acquittal, the admission of the

victim’s dying declaration that Appellant shot him, and the exclusion of copies of the

victim’s felony judgments from the evidence. However, for the reasons discussed below

we are compelled to reverse for resentencing before a different judge.

       In March 2008, Appellant and Charles Coleman had an altercation that resulted in

both of them being shot. Appellant told two different people that he was going to retaliate

against Coleman. Natalin Collier testified that on the night of Coleman’s death, Appellant

said he was “going to handle it in the streets” without getting the police involved, referring

to the previous dispute and shooting involving Coleman. Another witness, Jessica Brown,

similarly testified that Appellant told her that he was going to “get” Coleman. In the early

morning hours of June 25, 2008, Coleman arrived at his parents’ home after being shot.

His mother testified that Coleman said, “He got me. He got me, Mom. He got me this

time.” As he lay bleeding on the floor, Coleman told his family he knew he was dying,

that he loved them, and repeated that Appellant shot him. Coleman’s father testified that

he heard Coleman say, “Roo Roo [Appellant’s nickname] shot me again.” Coleman died

from the gunshot wounds.

       Other than the victim’s dying declaration, there was no eyewitness testimony

regarding the shooting. There was also no DNA evidence connecting Appellant to the

shooting, and the murder weapon was never located. Appellant’s recorded phone calls

from jail confirmed his former girlfriend’s testimony that he asked her to lie in order to

provide him an alibi for the time of the shooting. The medical examiner testified that the

fatal bullet could have been fired from a distance ranging from a few feet to one mile.

Appellant’s motions for directed verdict were denied.




                                              2
       Based on the evidence presented at his second trial, the jury convicted Appellant

of second-degree murder with a firearm. The jury’s verdict included a special finding that

Appellant actually possessed and discharged a firearm resulting in death. The judge

presiding over Appellant's second trial adjudicated Appellant guilty of second-degree

murder and sentenced him to life in prison with a minimum mandatory term of twenty-five

years. His first jury trial and conviction for second-degree murder, before a different

judge, resulted in a thirty year prison sentence.

                             SUFFICIENCY OF EVIDENCE

       Second-degree murder is defined as “[t]he unlawful killing of a human being, when

perpetrated by any act imminently dangerous to another and evincing a depraved mind

regardless of human life, although without any premeditated design to effect the death of

any particular individual.” § 782.04(2), Fla. Stat. (2008). An act is considered “imminently

dangerous to another and evincing a depraved mind regardless of human life” when it is

an act that: “(1) a person of ordinary judgment would know is reasonably certain to kill or

do serious bodily injury to another, and (2) is done from ill will, hatred, spite or an evil

intent, and (3) is of such a nature that the act itself indicates an indifference to human

life.” Duckett v. State, 686 So. 2d 662, 663 (Fla. 2d DCA 1996). The intent required for

second-degree murder may be “inferred from the circumstances.” Perez v. State, 187 So.

3d 1279, 1282 (Fla. 1st DCA 2016) (citing Antoine v. State, 138 So. 3d 1064, 1074 (Fla.

4th DCA 2014)).

       Appellant first argues that the trial court erred in denying his motions for judgment

of acquittal, asserting that there was insufficient evidence. We disagree. The victim’s

dying declaration identified Appellant as the shooter. The testimony of Collier and Brown,




                                             3
discussed above, provided adequate proof of the requisite ill will, hatred, spite, or evil

intent that Appellant harbored, which led Appellant to shoot Coleman.               “All facts

introduced into evidence are admitted by the defendant, and the court must draw every

conclusion favorable to the state. The motion [for judgment of acquittal] should not be

granted unless there is no legally sufficient evidence on which to base a verdict of guilty.”

Jackson v. State, 419 So. 2d 394, 397 (Fla. 4th DCA 1982) (citations omitted). We affirm

the denial of Appellant’s motion for judgment of acquittal.

                                 MOTION FOR MISTRIAL

       Appellant argues that the trial court erred in denying his motion for mistrial after a

State witness, Coleman’s father, repeated his son’s dying declaration in a way that

implied that Appellant shot the victim on a previous occasion. “A trial court’s ruling on a

motion for mistrial is subject to an abuse of discretion standard of review.” England v.

State, 940 So. 2d 389, 402 (Fla. 2006) (citation omitted). “A motion for mistrial should

only be granted where an error is so prejudicial as to vitiate the entire trial.” Id. at 401-02

(citing Snipes v. State, 733 So. 2d 1000, 1005 (Fla. 1999)).

       Appellant moved in limine to exclude the dying declaration “Roo Roo shot me

again.” The trial court entertained Appellant’s argument that focused in large part on

whether Coleman’s mother changed the wording of the dying declaration from her pre-

trial testimony (“Roo Roo shot me again”) to her trial testimony (“Ma, he got me. He got

me this time.”). Appellant argued that the change in wording made the mother’s testimony

too unreliable to present to the jury. Ultimately, the trial court found that Coleman’s

mother was permissibly using slightly different words to convey the same declaration.

The court cautioned that she could not use the word “again” as part of the declaration or




                                              4
otherwise indicate that this was a repeat of a prior shooting episode because the potential

prejudice of implying that Appellant shot Coleman previously outweighed the probative

value of a completely verbatim statement. Put differently, including the word “again”

added nothing to the certainty of Coleman identifying Appellant as his shooter, while it

could prejudice the jury against Appellant based on commission of an uncharged prior

shooting.

       Coleman’s mother followed the court’s admonition and avoided using the word

“again” or implying Appellant had previously shot Coleman. However, when Coleman’s

father was questioned about Coleman's dying declaration, he testified that Coleman said,

“Roo Roo done shot me again.” The trial court sustained Appellant’s objection, denied

his motion for mistrial, and instructed the jury to disregard the answer. The father then

repeated his statement, but without the word “again.” When denying the motion for

mistrial, the trial court found that the father’s inclusion of the word “again” was inadvertent,

and that it was said quickly and only once. The trial court noted that the jury would be or

had been advised of the prior episode in which both Coleman and Appellant were shot,

even though there was no testimony about who shot either of them in the previous

incident.

       Importantly, the trial court also concluded that any potential harm was eliminated

by the curative instruction.    Florida law is clear that an appropriate, timely curative

instruction can sufficiently eliminate the harmful nature of the improper comment so that

a mistrial is not required. See Walker v. State, 707 So. 2d 300, 312 (Fla. 1997); Johnston

v. State, 774 So. 2d 952, 953-54 (Fla. 5th DCA 2001). Accordingly, we find that the trial

court did not abuse its discretion in denying Appellant’s motion for mistrial.




                                               5
         USE OF FELONY JUDGMENTS TO IMPEACH DYING DECLARANT

       Appellant next argues that the trial court erred in limiting his impeachment of the

victim’s dying declaration by not allowing Appellant to introduce copies of Coleman’s

felony judgments and sentences. While cross-examining Coleman’s mother, Appellant

attempted to introduce copies of judgments and sentences proving that Coleman had

three felony convictions. The State stipulated that Coleman had three felony convictions

and agreed that Appellant could inquire of the mother if that were the case. However, the

State objected to the introduction of the judgments and sentences. The trial court agreed

with the State. The court allowed Appellant to elicit testimony that Coleman had three

felony convictions. The parties’ stipulation, that Coleman had three convictions, was read

to the jury. The court, however, did not allow Appellant to introduce the three felony

judgments into evidence. “A trial court’s ruling on the admission of evidence is reviewed

by an appellate court under an abuse of discretion standard.” Troy v. State, 948 So. 2d

635, 650 (Fla. 2006) (citation omitted).

       Florida law allows the admission of a statement made under the belief of

impending death as a hearsay exception. § 90.804(2)(b), Fla. Stat. (2016). Once such

a statement is admitted into evidence, “credibility of the declarant may be attacked and,

if attacked, may be supported by any evidence that would be admissible for those

purposes if the declarant had testified as a witness.” § 90.806(1), Fla. Stat. (2016).

       One method of attacking a witness’s credibility is through evidence of prior felony

convictions. § 90.610(1), Fla. Stat. (2016). “When there has been a prior conviction, only

the fact of conviction can be brought out, unless the witness denies the conviction. If the

witness denies ever having been convicted, or misstates the number of previous




                                             6
convictions, counsel may impeach the witness by producing a record of past convictions.”

Fulton v. State, 335 So. 2d 280, 284 (Fla. 1976) (citations omitted). Here, the trial court

did not abuse its discretion by limiting the impeachment of the dying declarant to proof of

the number of Coleman’s felony convictions. Indeed, it would have been an abuse of

discretion under these circumstances to have allowed introduction of the related felony

judgments and sentences. See Mathis v. State, 135 So. 3d 484, 485-86 (Fla. 2d DCA

2014) (finding that “the trial court abused its discretion in admitting the certified copies of

the prior convictions and sentences” to impeach the defendant-declarant’s hearsay

statements). Therefore, we affirm as to this issue as well.

                            SENTENCING CONSIDERATIONS

       Appellant asserts that the trial court imposed a vindictive sentence and that it

considered inappropriate factors in determining what sentence to impose.

       Appellant points out that he was sentenced to thirty years in prison after his first

trial, compared to a life sentence with a twenty-five year minimum mandatory following

his second trial. “The issue of whether a defendant’s sentence is vindictive is a question

of law subject to de novo review.” Simplice v. State, 134 So. 3d 555, 556 (Fla. 5th DCA

2014) (citation omitted). When a criminal defendant has a re-trial and receives a higher

sentence than after the first trial, the defendant has the burden of showing vindictiveness

when the second sentence is imposed by a different judge. Kovaleski v. State, 1 So. 3d

254, 258 (Fla. 4th DCA 2009) (“A re-sentence after a reversal and re-trial which is more

onerous than the original sentence is presumed vindictive where imposed by the same

judge, but when, as in this case, a different judge imposes the increased sentence, the

presumption does not apply and the defendant has the burden of demonstrating




                                              7
vindictiveness.” (citing Texas v. McCullough, 475 U.S. 134 (1986))). The testimony was

similar in many respects in both trials. However, it was only in the second trial that

evidence was introduced to establish that Appellant requested his former girlfriend to

provide him with a false alibi for the time of the shooting. Appellant did not prove that the

second judge imposed a vindictive sentence as punishment for pursuing his appellate

rights and insisting on a second trial.

       However, the trial court appears to have considered an inappropriate factor when

determining Appellant’s sentence following his second trial and conviction. “Although an

appellate court generally may not review a sentence that is within statutory limits under

the Criminal Punishment Code, an exception exists, when the trial court considers

constitutionally impermissible factors in imposing a sentence.” Nawaz v. State, 28 So. 3d

122, 124 (Fla. 1st DCA 2010); see also Gage v. State, 147 So. 3d 1020, 1022 (Fla. 2d

DCA 2014) (“Reliance upon improper sentencing factors is fundamental error.” (citations

omitted)).

       During sentencing, the trial court described Appellant’s attitude during trial as surly

and noted that Appellant had no job and failed to support his children. These facts were

not relevant to the crime charged. The trial court was apparently offended that Appellant

maintained his innocence even though two juries convicted him, and found it “despicable”

and “just plainly cruel” that Appellant attacked the victim’s parents in his statement, in

which he maintained that he did not shoot their son, that anything to the contrary was a

lie, and that Coleman’s parents knew it was a big lie.

       Impermissible factors that the trial court may not consider during sentencing

include “a defendant’s assertions of his innocence and refusal to admit guilt.” Hannum v.




                                              8
State, 13 So. 3d 132, 135 (Fla. 2d DCA 2009) (citing Bracero v. State, 10 So. 3d 664,

665-66 (Fla. 2d DCA 2009); Ritter v. State, 885 So. 2d 413, 414 (Fla. 1st DCA 2004)).

“[D]ue process guarantees an individual the right to maintain innocence even when faced

with evidence of overwhelming guilt.” Holt v. State, 573 So. 2d 284, 292 (Fla. 1990).

When the defendant denies committing the crime, “[i]t is also generally improper for the

sentencing court to consider the defendant’s lack of remorse.” Robinson v. State, 108

So. 3d 1150, 1151 (Fla. 5th DCA 2013) (citations omitted).

      We are aware that the trial court stated that the basis for the stiffer sentence was

Appellant’s danger to society and Appellant's attempt to fabricate an alibi. However, we

cannot ignore the nature and extent of the trial court’s discussion of irrelevant and

impermissible factors during the sentencing hearing. “Because the court’s comments

could reasonably be construed as basing the sentence, at least in part, [on impermissible

factors], and because we cannot say that the sentence would have been the same without

the court’s impermissible consideration of [that factor], we vacate appellant’s sentence

and remand for resentencing before a different judge.” Torres v. State, 124 So. 3d 439,

442 (Fla. 1st DCA 2013).

      Accordingly, we affirm Appellant’s conviction of second-degree murder, but

remand for resentencing before a different judge.


      AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.



SAWAYA and BERGER, JJ., concur.




                                           9
