         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
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                         No. 1D17-575
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ALDEN MITCHELL HOWARD,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                 _____________________________


On appeal from the Circuit Court for Alachua County.
William E. Davis, Judge.

                         October 2, 2018


OSTERHAUS, J.

     Alden Mitchell Howard appeals his convictions for attempted
felony murder with a firearm, home invasion robbery with a
firearm, and possession of a firearm by a felon. He argues that he
was wrongly tried with an accomplice and that his motion for
severance should have been granted. We affirm, finding no error
in the trial court’s decision to deny his motion for severance.

                                I.

    In 2015, Mr. Howard and an accomplice robbed an
acquaintance of the accomplice at the victim’s home. They knocked
on the door of the victim’s home, and when he answered it, they
struck him on the head with a gun and forced themselves inside.
Mr. Howard and his accomplice proceeded to overpower and beat
the victim into submission, bind him with duct tape, and shoot him
in the leg. They also put a pillow over the victim’s head, placed a
gun to his head, and pulled the trigger. The victim heard a “click,
click” noise, but the gun didn’t go off. Mr. Howard and his
accomplice then fled the residence with drugs and money, leaving
the victim bound and bleeding.

     Law enforcement later arrested them and they were set for
trial together—Mr. Howard by jury trial and the accomplice/co-
defendant by bench trial. After discovery, Mr. Howard filed a
motion to sever the trials based on the depositions of State
witnesses who were former friends and fellow prisoners with the
co-defendant in jail. They claimed that the co-defendant made a
confession to them at the jail, which implicated both the co-
defendant and Mr. Howard in the crimes. But the trial court
denied Mr. Howard’s motion to sever the trials.

     The two witnesses subsequently testified at the trial. The
victim also testified, identifying the defendants as his attackers.
The jury found Mr. Howard guilty.

                                II.

     On appeal, Mr. Howard argues that the court erred in denying
his motion for severance because the testimony of the State’s
witnesses regarding the co-defendant’s apparent confession
violated his rights to cross-examination and to confront the
witnesses against him.

     Florida Rule of Criminal Procedure 3.152(b)(1) directs trial
courts to sever the trials of defendants whenever necessary “to
promote a fair determination of the guilt or innocence of one or
more defendants.” “The object of the rule is not to provide
defendants with an absolute right, upon request, to separate trials
when they blame each other for the crime. Rather, the rule is
designed to assure a fair determination of each defendant’s guilt
or innocence.” McCray v. State, 416 So. 2d 804, 806 (Fla. 1982). The
question of severance is considered on a case by case basis. Id.



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     In this case, Mr. Howard’s motion for severance is based on
the Sixth Amendment’s Confrontation Clause. Mr. Howard argued
that third-party testimony describing the jailhouse confession
made by his co-defendant, when his co-defendant was not
testifying and couldn’t be cross-examined, would deprive him of his
right to confront the witnesses against him. The Sixth
Amendment’s Confrontation Clause provides that, “[i]n all
criminal prosecutions, the accused shall enjoy the right . . . to be
confronted with the witnesses against him.” It is a procedural
guarantee that applies to testimonial statements in both federal
and state prosecutions. Pointer v. Texas, 380 U.S. 400, 406 (1965).
And it extends particularly to the confessions of nontestifying
criminal defendants admitted into evidence in a joint trial with a
co-defendant. See United States v. Bruton, 391 U.S. 123, 135–36
(1968).

     But the Sixth Amendment does not prohibit the statements in
this case because there are no “testimonial” statements involved
here. “Only [testimonial statements] cause a declarant to be a
‘witness’ within the meaning of the Confrontation Clause.” Davis
v. Washington, 547 U.S. 813, 821 (2006); see also State v.
Contreras, 979 So. 2d 896, 903 (Fla. 2008). “Testimonial”
statements are those made with an expectation of being used in an
investigation or prosecution of a crime, for example, those given to
a police investigator, to a grand jury, at a preliminary hearing, or
at a former trial. See Crawford v. Washington, 541 U.S. 36, 51-52,
68 (2004). The co-defendant’s confessional statements in this case
were made privately to friends from his neighborhood who were
also in jail. In discussing “what he was in for,” the co-defendant
told the story of his crime to his friends, inculpating both himself
and Mr. Howard. With these statements, the co-defendant was not
acting as a witness, or giving testimony that would reasonably
expected to be used prosecutorially. See Franklin v. State, 965 So.
2d 79, 91 (Fla. 2007) (holding that a victim’s statements to a friend
and co-worker after being shot were nontestimonial).

    The Fourth District reached the same result on a similar issue
in Brown v. State, 69 So. 3d 316 (Fla. 4th DCA 2011). There, the
defendant was charged with robbery and murder committed with
accomplices. A friend of one the co-defendants testified at trial of a
conversation with the co-defendant, in which the co-defendant

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implicated himself and the defendant in the crimes. Id. at 317.
Specifically, the co-defendant described robbing the victims and
then shooting them after they refused to comply with directions.
Id. The trial judge found the statements admissible because they
were made to friends and non-testimonial in nature. We find no
error in the trial court’s decision reaching the same conclusion
here.

     Mr. Howard’s other argument is that these statements are
non-admissible hearsay, which don’t qualify under § 90.804(2)(c)’s
exception for trustworthy statements against penal interest. It is
error to admit a co-defendant’s confession that implicates a
criminal defendant in the absence of specific guarantees of
“trustworthiness.” DeWolfe v. State, 62 So. 3d 1142, 1144 (Fla. 1st
DCA 2011) (quoting Franqui v. State, 699 So. 2d 1312, 1318-19
(Fla. 1997)). In deciding whether to admit hearsay evidence
involving a declaration against penal interest, “the trial judge
should consider ‘the language used and the setting in which the
statement was made,’” and “whether the statement is ‘consistent
with both the defendant’s general version of events and the other
evidence.’” Id. at 1145 (quoting Masaka v. State, 4 So. 3d 1274,
1282 (Fla. 2d DCA 2009)). Here, the court’s order found the
circumstances surrounding the co-defendant’s statements to
demonstrate sufficient trustworthiness. And we agree. In this
instance, the co-defendant’s statements implicated himself in the
vicious attack, and were made voluntarily and privately, out of the
presence of investigators, to former friends from his neighborhood.
The statements also provided details of the crime which were
consistent with the other evidence in the case. Whatever their self-
serving qualities, the co-defendant’s statements did not shift the
blame for the crime to Mr. Howard.

     Under these circumstances, the trial court could properly
admit the witnesses’ testimony about the co-defendant’s
statements under the hearsay exception for statements against
penal interest. See also Machado v. State, 787 So. 2d 112, 113 (Fla.
4th DCA 2001) (finding a non-testifying accomplice’s statement to
be admissible as against penal interest where the corroborating
circumstances indicated the statement had particularized
guarantees of trustworthiness). We find no error in the trial court’s
decision to deny Mr. Howard’s motion for severance. The

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witnesses’ testimony that Mr. Howard sought to avoid didn’t
violate the Confrontation Clause, was admissible, and didn’t
deprive him of a fair determination of his guilt.

                               III.

    For these reasons, Mr. Howard’s judgment and sentence are
AFFIRMED.

B.L. THOMAS, C.J., and BILBREY, J., concur.

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    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
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Stephen N. Bernstein, Gainesville, for Appellant.

Pamela Jo Bondi, Attorney General, and Robert Quentin
Humphrey, Assistant Attorney General, Tallahassee, for Appellee.




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