         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
                 _____________________________

                         No. 1D17-3453
                 _____________________________

TRAVIS R. BROWN,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                 _____________________________


On appeal from the Circuit Court for Hamilton County.
David W. Fina, Judge.

                         August 22, 2019



PER CURIAM.

    Indicted for first-degree murder, Travis Brown was convicted
of the lesser-included offense of second-degree murder and
sentenced to life imprisonment. On appeal, he argues that
evidence of a collateral crime was erroneously admitted, as well
as evidence that could negatively affect his counsel’s credibility.
Brown does not demonstrate error, so we affirm.
                             I. Facts

     The State filed a notice of its intent to offer Williams 1 Rule
evidence of a shooting that occurred less than a month before the
murder. The notice stated that Brown had already been convicted
on five felony charges for shooting toward a vehicle in May 2015.
This evidence was relevant to the June 2015 murder because
experts concluded that the eight shell casings fired from Brown’s
gun in May were fired from the same gun as the bullets that
killed the victim. Because there were no eyewitnesses to the
murder, this evidence was particularly probative of the identity
of the killer. Brown’s motion in limine argued that evidence of
this prior crime would only be used to show a propensity for
criminal activity, was unfairly prejudicial, and could become a
feature of the trial.

     At a pretrial hearing on the Williams Rule evidence, the
State noted that its eyewitness to the collateral-crime shooting
was unavailable, but the parties agreed to proceed and continue
the hearing only if the trial court could not make a sufficient
finding of the earlier crime. The State’s witnesses testified that
the eyewitness identified Brown as the shooter, that Brown was
known to carry a .45 caliber handgun, and that the shell casings
recovered from the May shooting and June murder were fired
from the same gun. The State then introduced, without objection,
Brown’s judgment and sentence following his guilty plea for the
felonies he committed in the collateral crime. The trial court
ruled that the Williams Rule evidence would be admissible,
finding that there was clear and convincing evidence that shell
casings from both shootings were fired from the same gun, Brown
entered a guilty plea to the collateral-crime shooting charges and
was identified as the shooter, the evidence was relevant for
identity purposes, and the probative value of the evidence
outweighed its prejudicial effect.



    1  Williams v. State, 110 So. 2d 654 (Fla. 1959); see also
§ 90.404(2)(a), Fla. Stat. (allowing the admission of evidence “of
other crimes, wrongs, or acts” when “relevant to prove a material
fact in issue” such as “identity”).

                                 2
     Days before trial, Brown filed another motion in limine,
asserting that he had a pending motion to withdraw his guilty
plea in the collateral case, his guilty plea could no longer be used
in his murder trial, and without the guilty plea there was no
longer clear and convincing evidence to admit the Williams Rule
evidence. Brown’s attached post-sentencing motion to withdraw
plea 2 asserted, inter alia, that the State coerced him into
pleading guilty by offering him such a good deal that it overbore
his will, precluding him from thinking rationally and realizing
that his guilty plea would directly link him to a murder. The trial
court denied this second motion in limine, stating that it had
previously found clear and convincing evidence of the crime,
although the judgment and sentence would not be admitted into
evidence at trial.

     At trial, witnesses testified that they found the victim shot
and dying on a road at approximately 4:30 a.m. and, just before
dying, he stated that he was shot by a man named “Slim” who
drove a dark Cadillac. Officers developed Brown, who goes by
“Slim,” as a suspect and found the victim’s debit card and
Brown’s DNA inside a dark Cadillac owned by Brown’s girlfriend
Kalandra Perry. A mutual friend testified that Brown routinely
sold drugs to the victim, who often owed Brown money, and
Brown sometimes would take the victim to the bank to withdraw
money. In the hours before the victim’s death, he was seen in an
ATM video with another individual attempting to withdraw
money, but was unsuccessful because a pending deposit had not
yet gone through. In the same time frame, approximately
seventeen phone calls were made from Brown’s phone to Wells
Fargo, and both Brown’s and the victim’s voices were identified
on these calls. Brown’s phone was tracked traveling in one
direction from 4:00-4:25 (minutes before the victim was found on
the road) before returning the way it came. Around the time of
death, several more calls were made from Brown’s phone to
Perry’s. After being brought to the police station, Brown was
recorded on a phone call telling someone that he had deleted the


    2   See Fla. R. Crim. P. 3.170(l); Fla. R. App. P.
9.140(b)(2)(A)(ii)a.-e. (restricting the grounds a defendant may
assert to withdraw a guilty plea post-sentencing).

                                 3
contents of his phone and a subsequent search of the phone
showed that this was true. Lastly, the State presented the
Williams Rule evidence: the collateral eyewitness identified
Brown as the person she saw shooting at a vehicle in May and
experts testified that the gun used in May was the same gun that
killed the victim.

     After the State rested, Brown called Perry to testify on his
behalf. Perry testified that Brown was in her bed the night of the
murder and that the shooter in the May incident was not Brown,
but Brown’s brother. On cross-examination, Perry conceded that
she had an interview with the State just weeks ago and had
stated that she did not know where Brown or her Cadillac were
at the time of the murder, and identified Brown as the shooter in
the May shooting. At trial, Perry stated that all of her recent
interview statements were lies and she only made them because
she felt she was being framed for murder, the prosecutors
threatened her, and she was mad at Brown for cheating on her.
Perry also invoked her Fifth Amendment right against self-
incrimination, told the trial court that she was being entrapped
with perjury, and warned the prosecutor that he was “play[ing] a
dangerous game” by cross-examining her about her inconsistent
statements.

     The State called Ryan Nydam, who had recently interviewed
Perry, as a rebuttal witness and introduced the audio recording
of his interview. Brown’s counsel reviewed a transcript of the
interview and found a portion where Perry discussed a
conversation he had with her, and requested its redaction
because it could create an issue with him becoming a witness.
The trial court denied the request, finding nothing improper in
Perry’s statement and that it was relevant to show an
inconsistency with her trial testimony. Counsel then argued that
a portion pertaining to him could affect his credibility and the
jury might infer that he asked Perry to lie for Brown. The trial
court declined to require redaction, finding the statements
relevant and inconsistent with Perry’s testimony. During the
recorded interview, Perry stated that she had received a
handwritten letter from Brown asking her to tell his counsel that
he was with her the night of the murder, but the two were not
together that night nor the entire week. Perry became suspicious

                                4
that Brown committed the murder because she did not know why
she needed to lie for him if he was innocent. Perry also said that
she witnessed Brown shooting his gun during the incident in
May. Regarding Brown’s counsel, Perry stated that he informed
her of the seventeen phone calls made from Brown’s phone to
Wells Fargo and repeatedly asked her if she was with Brown
when he made these calls, although she repeatedly said that she
was not. Nydam also testified that he interviewed Brown, who
“was all over the place” in explaining where he was the night of
the murder, giving Perry’s house as one of several locations.

     Craig Riley, a special agent with the Florida Department of
Law Enforcement, testified that he interviewed Perry on two
occasions shortly after the murder. On both occasions, Perry
stated that she was at her mother’s house on the night and week
of the murder and not with Brown. Perry’s mother also testified
that her daughter spent the entire week of the murder with her
and Brown was not there.

     Brown recalled Perry, who testified that she gave false
statements in her recorded interview because, just before it
began, a police officer, prosecutor, and investigator told her that
they would give her leniency in her own criminal cases if Brown
was convicted.

                           II. Analysis

                     Williams Rule Evidence

     “[E]vidence of any facts relevant to a material fact in issue
except where the sole relevancy is character or propensity of the
accused is admissible unless precluded by some specific exception
or rule of exclusion.” Williams v. State, 110 So. 2d 654, 663 (Fla.
1959); see also § 90.404(2)(a), Fla. Stat. (codifying the Williams
Rule). Before allowing Williams Rule evidence, “the trial court
must find that the prior acts were proved by clear and convincing
evidence.” McLean v. State, 934 So. 2d 1248, 1262 (Fla. 2006); see
also Harrelson v. State, 146 So. 3d 171, 174-75 (Fla. 1st DCA
2014) (reversing after the trial court declined to make a finding
on clear and convincing evidence).



                                5
     At the Williams Rule hearing, the trial court found clear and
convincing evidence that Brown was the shooter in the May
incident and that this evidence would be admissible as it was
particularly probative of identity. Brown does not argue that this
finding was improper, the evidence was unfairly prejudicial, or
that the Williams Rule evidence became a feature of the trial.

     Instead, Brown argues that the trial court erred in not
holding a second hearing on the Williams Rule evidence once he
informed the court that he had a pending motion to withdraw his
plea in the collateral case. Because the trial court did not do this,
he argues, the remaining evidence—excluding the judgment and
sentence—such as the hearsay evidence of the eyewitness and
testimony of officers and experts, was not legally sufficient to
admit the evidence. Brown’s argument is premised on the belief
that the trial court could not legally consider the judgment and
sentence in the collateral case merely because he filed a motion to
withdraw his guilty plea. Brown asserts this argument in a
conclusory fashion without providing any legal basis and
presumably requesting that we create such a rule. We decline to
do so. 3

            Redaction of the Alibi Witness’s Interview

     Brown claims error as to two portions of Perry’s recorded
interview, used to impeach her testimony on his behalf, that the
trial court refused to redact. The trial court found that both
statements were admissible and inconsistent with Perry’s trial
testimony. See § 90.608, Fla. Stat. (“Any party . . . may attack the

    3  See Goodwin v. State, 751 So. 2d 537, 544 (Fla. 1999)
(“[T]he defendant bears the burden of demonstrating that an
error occurred in the trial court, which was preserved by proper
objection.”); § 924.051(7), Fla. Stat. (“[T]he party challenging the
judgment or order of the trial court has the burden of
demonstrating that a prejudicial error occurred in the trial
court.”).




                                 6
credibility of a witness by: (1) Introducing statements of the
witness which are inconsistent with the witness’s present
testimony. . . .”). A trial court’s ruling on whether to redact
certain disputed statements from a recorded interview is
reviewed for abuse of discretion. See Jackson v. State, 18 So. 3d
1016, 1032 (Fla. 2009).

    In the first statement, Perry expressed her suspicion of
Brown after Brown’s counsel informed her of the phone calls
Brown made and his location the night of the murder:

         [Nydam]: Did you have anything to make you
    believe that [Brown did it] or is it just because of his
    words?
         [Perry]: Just because of what he said. Because the
    reason why is because when his lawyer came and said,
    he told me, he said your cell phone pings or however
    y’all do it to find a person’s cell phone. He said it was
    coming in Hamilton County area around that time so if
    you tell me to say that I went to Ham[ilton] Co[unty]
    late midnight, if you didn’t do this, why is your cell
    phone supposedly coming 17 times going to Wells Fargo
    bank where the guy banked at. So I just been thinking
    about all that stuff. And a lot of stuff I didn’t know until
    [Brown’s counsel] came up here.

     We find no issue in the fact that Perry revealed that she had
spoken to her boyfriend’s counsel about her case, do not find that
he became a secondhand “witness,” and note that all evidence
discussed (Brown’s location and calls to Wells Fargo) was already
admitted into evidence. We similarly reject Brown’s argument
that the trial court erred in admitting Perry’s opinions regarding
Brown’s possible guilt, see Martinez v. State, 761 So. 2d 1074,
1079 (Fla. 2000) (“[A] witness’s opinion as to the guilt or
innocence of the accused is not admissible.”), as these statements
were made by his own alibi witness and were appropriate for
impeachment.

    In the second statement, Perry reflected on Brown asking
her to provide an alibi in his letter and her conversation with
Brown’s counsel about the alibi Brown had professed:

                                 7
    Sounded like to me he done convinced his lawyer to
    believe that, too, because when his lawyer came to talk
    to me, he kept saying, so you wasn’t there when he was
    on the phone? I said, no, sir. No, sir. Are you sure? I
    said, yes, sir, I am sure. He asked me over and he asked
    me over and he asked me over. So, obviously, whatever
    story Travis is telling his lawyer is what he is trying to
    get me to say but his lawyer didn't want to say it out
    front. He wanted me to come out and say it and I wasn’t
    going for that.

    Brown’s brief argument on appeal asserts that it is
impermissible to challenge the credibility or character of a
defense attorney. Brown cites only cases concerning a
prosecutor’s improper remarks about a defense attorney, 4
although the remarks here were made by his girlfriend and alibi
witness. Brown was fully aware of Perry’s interview before trial
and, if he still decided to call her to testify, the State was
permitted to impeach her credibility. We find that the trial court
did not abuse its discretion in permitting Perry’s statement that
squarely contradicts her trial testimony.

                        III. Conclusion

    Despite a lack of any eyewitnesses, the State provided ample
evidence incriminating Brown in the murder. Williams Rule
evidence was ruled admissible and would be critical evidence of
the killer’s identity, and Brown’s motion to withdraw his plea in
his collateral case did not require a second pretrial hearing.
Brown’s only defense witness provided an alibi, but was
extensively and permissibly impeached by the State without trial
court error. We affirm Brown’s judgment and sentence.

    AFFIRMED.

RAY, C.J., and B.L. THOMAS and WINOKUR, JJ., concur.


    4  E.g., Merck v. State, 975 So. 2d 1054, 1064 (Fla. 2007);
Mora v. State, 211 So. 3d 308, 309 (Fla. 3d DCA 2017); Redish v.
State, 525 So. 2d 928, 931 (Fla. 1st DCA 1988).

                                8
               _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________


Joseph S. Hamrick, Rick A. Sichta, and Susanne K. Sichta, The
Sichta Firm, LLC, Jacksonville, for Appellant.

Ashley Moody, Attorney General, and Sharon S. Traxler,
Assistant Attorney General, Tallahassee, for Appellee.




                             9
