              NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                     MOTION AND, IF FILED, DETERMINED


                                           IN THE DISTRICT COURT OF APPEAL
                                           OF FLORIDA
                                           SECOND DISTRICT



HARLEME L. LARRY,                  )
                                   )
       Appellant,                  )
                                   )
v.                                 )               Case Nos. 2D13-4610
                                   )                         2D16-2562
STATE OF FLORIDA,                  )
                                   )                    CONSOLIDATED
       Appellee.                   )
___________________________________)

Opinion filed March 23, 2018.

Appeals from the Circuit Court for Pasco
County; Pat Siracusa, Judge.

Howard L. Dimmig, II, Public Defender,
and Dan Hallenberg, Special Assistant
Public Defender, Bartow, for Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee, and David Campbell,
Assistant Attorney General, Tampa,
for Appellee.



SILBERMAN, Judge.

             Harleme L. Larry appeals his judgment and forty-year sentence for murder

in the first degree that was committed during a robbery when he was fourteen years
old.1 Larry raises issues regarding the denial of the motion to suppress his statements,

incomplete jury instructions, and the exclusion of evidence the defense sought to admit

at trial. Because Larry was denied his right to a fair trial by the exclusion of evidence

that another person confessed to the murder, we reverse and remand for a new trial.

We also direct the trial court on remand to instruct the jury on robbery, the underlying

felony for felony murder. We have determined that no error occurred regarding the

remaining issues and do not address them.

              This charge arose after four Hispanic men were robbed while they were

sitting on the steps outside a home on Oak Street shortly after midnight on July 10,

2010. The men had only a few dollars, and the perpetrator shot one of the men in the

chest. That individual died as a result of the shooting. The gun was never recovered.

Witnesses testified that the perpetrator was wearing a dark bandanna, possibly black,

and carrying a black bag.

              About two days later, Larry went to the sheriff's office. He confessed that

he shot the man but stated that he was not robbing the men and that he acted in self-

defense. But at trial, Larry testified that he was "taking the rap" for his older friend,

Derrick Wright. His defense was that Wright committed the robbery and shooting and

that Wright had talked Larry into giving a false confession. Wright and his aunt had

taken Larry to the sheriff's office so that Larry could make his confession.




              1This court has consolidated the appeal of the judgment and sentence and
the appeal of the order denying Larry's motion for new trial that alleged juror
misconduct, but Larry does not raise any issues on appeal regarding the denial of his
motion for new trial.


                                             -2-
              After Larry confessed, a black bag was found in his residence, and the

bag had gunshot residue in it. At trial, Keith Cheatum testified that he saw a black male

walking near Oak Street in the early morning of July 10, 2010. The male had a red

bandanna on his face and was carrying a black bag. The male asked Cheatum what he

was looking at, and Cheatum responded that he was not looking at anything. Cheatum

identified the bag found in Larry's residence as looking like the bag he saw the male

carrying. Cheatum was later recalled and testified that he had known Wright since he

was a young child and knew his voice. Cheatum was certain that the man he

encountered on the street that night was not Wright.

              Larry sought to introduce Edner Dely's testimony that Wright had admitted

to committing the crime. Larry proffered Dely's testimony, but the trial court excluded it

after considering the factors set out in Chambers v. Mississippi, 410 U.S. 284 (1973).

Larry also proffered Wright's testimony in which he denied killing the victim and stated

that he had never seen or spoken to Dely until the day of trial. Larry sought to impeach

Wright with his out-of-court statement to Dely. The trial court prohibited the

impeachment, stating that the defense could not impeach Wright with a statement that it

knew he was not going to admit to making and that the defense could not call Dely to

confront Wright with the statement. Based on the ruling, the defense chose not to call

Wright as a defense witness.

              On appeal, Larry recognizes that Wright's alleged confession to Dely is not

admissible as a hearsay exception for a declaration against penal interest under section

90.804(2)(c), Florida Statutes (2013), because Wright was available to testify at trial.

Larry instead argues that his due process right to a fair trial was violated.




                                            -3-
              In Lightbourne v. State, 644 So. 2d 54, 57 (Fla. 1994), the court observed

that in Chambers the United States Supreme Court determined that due process

concerns can overcome hearsay rules. Thus, "a trial judge may be required to admit a

third-party confession under constitutional principles, even if it does not qualify as a

declaration against penal interest under the state law of evidence." Bearden v. State,

161 So. 3d 1257, 1265-66 (Fla. 2015). The Chambers Court considered four factors in

determining when an out-of-court statement is admissible:

              (1) the confession or statement was made spontaneously to
              a close acquaintance shortly after the crime occurred; (2) the
              confession or statement is corroborated by some other
              evidence in the case; (3) the confession or statement was
              self-incriminatory and unquestionably against interest; and
              (4) if there is any question about the truthfulness of the out-
              of court confession or statement, the declarant must be
              available for cross-examination.

Bearden, 161 So. 3d at 1265 (citing Chambers, 410 U.S. at 300-01). The main

consideration is whether the statement has sufficient indications of reliability. Id. at

1265 n.3. The Florida Supreme Court pointed out that a defendant's statement can

serve as corroboration and that Chambers required corroboration by "some other

evidence in the case." Id. at 1266 (quoting Chambers, 410 U.S. at 300).

              In Bearden, several days after the murder a third party named Ray Allen

Brown made a statement to a woman named Angela Tyler who knew Bearden as well

as the Brown family. Id. at 1261. In the statement, Brown implicated himself and his

cousin in the murder for which Bearden was on trial. Id. Bearden had made a pretrial

statement to police implicating Brown in the murder. Id. at 1266. The Florida Supreme

Court determined that the defendant's own statement made days after the murder and

introduced into evidence by the State was adequate corroboration under Chambers. Id.



                                            -4-
at 1266-67. The court also determined that the trial court should have allowed the

defense to recall Brown and impeach him with his alleged confession to Tyler and that

the exclusion of the evidence deprived Bearden of due process. Id. at 1267.

              Here, the trial court found that Wright's alleged statement was against his

penal interests but that the statement was not spontaneous. In doing so, the court

described the conversation as two young men bragging about criminal activities in a

bar. A person's explicit admission to committing a murder is certainly against a person's

penal interests. But with respect to spontaneity, it appears to have been a spontaneous

conversation in a social setting rather than, for instance, one that was the subject of

interrogation. We recognize that bragging about criminal activity may lessen the

reliability somewhat. For instance, a confession to a police officer was deemed reliable

in Curtis v. State, 876 So. 2d 13, 21 (Fla. 1st DCA 2004), but the court mentioned that it

would have been more concerned if the declarant "had been bragging to his friends."

              Larry proffered Dely's testimony. Dely testified that he knew both Wright

and Larry. About a week after the murder, Dely was in a bar with Wright. Wright told

him that "he had killed the Mexican behind Lock street, that he had his auntie take

Harleme [Larry] to the police department and confess to the murder." The conversation

came up when Dely and Wright were "hanging out" and "[m]ostly like bragging about

things that [they] do." Dely explained that the things were "[c]riminal-wise."

              Larry presented evidence to corroborate Dely's proffered testimony. Two

days after the murder, Larry went to the sheriff's office and told two detectives that he

shot the man in self-defense. Wright's aunt drove Larry to the sheriff's office. Although




                                           -5-
Wright did not mention to Dely that Wright accompanied his aunt and Larry, the

omission of that detail does not render the statement unreliable.

              At trial, Larry testified that Wright asked him to "take the rap" for the

murder. Wright told Larry that if he said he acted in self-defense he would get only two

years because he was young. Wright led Larry to believe that because Wright was

eighteen he would get a lot more. Larry further testified that Wright talked him into

going to the sheriff's office and told Larry to confess to the murder, so Larry "guess[ed]

he had something to do with it."

              We note that there was evidence that was contrary to the theory that

Wright committed the murder. In addition to Larry's confession at the sheriff's office, a

black bag that looked like the one the perpetrator was carrying was found in Larry's

residence and had gunshot residue in it. Cheatum, the witness who had known Wright

since he was a young child and knew his voice, testified that the man he encountered

on the street that night was not Wright.

              However, the Chambers test only requires that the defendant show

corroboration by "some other evidence in the case." Bearden, 161 So. 3d at 1266

(quoting Chambers, 410 U.S. at 300). A defendant's statement can serve as that

corroboration. Id. Here, Larry's statement to the detectives and testimony at trial

provided that corroboration. We note that the State argued in its brief that Wright's

statements to Dely were not corroborated, but the State failed to address Larry's

statements as corroboration. And the fact that Wright's aunt drove Larry to the sheriff's

office provides some further corroboration of Wright's statement to Dely.




                                            -6-
                 The circumstances show that a spontaneous statement was made against

penal interest, that the statement was corroborated with some evidence, and that Wright

was available to testify at trial. See id. at 1265. Based on Bearden, we conclude that

the statement had sufficient indicia of reliability and that Larry was denied his right to a

fair trial by the exclusion of the statement. Thus, we reverse and remand for a new trial

to allow evidence of Wright's statement that he committed the murder and got Larry to

confess to it.

                 In addition, Larry also proffered Wright's testimony in which he denied

killing the victim and stated that he had never seen or spoken to Dely until that day at

trial. A party may not normally call a witness for the primary purpose of impeaching

him, but in some instances this may deprive a defendant of due process. See id. at

1267. As in Bearden, the defense should be allowed to call Wright as a witness and

impeach him with his statements because they are "central to the defense theory." Id.

                 In summary, we reverse and remand for a new trial because Larry was

denied his right to a fair trial by the exclusion of evidence that Wright confessed to the

crime. For purposes of remand, we briefly address the jury instructions. When

instructing the jury on felony murder, it is essential that the underlying felony "be defined

sufficiently to ensure the accused a fair trial." Spagnolo v. State, 116 So. 3d 599, 604

(Fla. 5th DCA 2013) (quoting State v. Jones, 377 So. 2d 1163, 1164 (Fla. 1979)); see

also Tubman v. State, 633 So. 2d 485, 485 (Fla. 1st DCA 1994) (recognizing error in

failure to instruct on the underlying crime of robbery in connection with the offense of

felony murder). Thus, on remand, the trial court must instruct the jury on robbery, the

underlying felony for felony murder.




                                              -7-
           Reversed for new trial and remanded with instructions.



VILLANTI and BADALAMENTI, JJ., Concur.




                                       -8-
