       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                            JAMES GENTRY,
                               Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D19-787

                              [July 22, 2020]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Michael A. Usan, Judge; L.T. Case No. 12005038CF10A.

   Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public
Defender, West Palm Beach, for appellant.

  Ashley Moody, Attorney General, Tallahassee, and Jeanine
Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.

GROSS, J.

    James Gentry appeals his life sentence for one count of first degree
murder. We write to address Gentry’s claim that the trial court committed
fundamental error by precluding him from testifying about his brother’s
confession. We hold that no fundamental error occurred as a result of the
trial court sustaining the state’s hearsay objection to Gentry’s testimony
concerning his brother’s inculpatory out-of-court statements. We affirm.

   At trial, the state contended that appellant, an admitted male
prostitute, and his brother, Timothy Gentry, went home with the victim
after meeting him at a gay bar. The victim refused to pay appellant for
prostitution services rendered and told the brothers they had to leave. In
response, appellant bound the victim’s arms and legs, placed a cloth gag
over the victim’s mouth, took some of the victim’s possessions, and left the
victim in a position that ultimately caused him to die from asphyxiation,
in what the medical examiner described as a “protracted very long death.”

                  The Trial Testimony of Timothy Gentry
   The state’s primary witness at trial was appellant’s brother and
codefendant, Tim Gentry. The brother admitted to being a convicted felon
and was incarcerated at the time of trial. The brother stated that he had
resolved the first degree murder charge against him in this case. As part
of his deal with the state, he pled guilty to the crime of second degree
murder and was required to testify at appellant’s trial. On the murder
charge, he was sentenced to ten years in prison to be served concurrently
with a twenty-year term of probation. The brother indicated that one
condition of his plea agreement was that the state would waive the death
penalty for appellant.

    The brother testified that he and appellant drifted to Florida to look for
work. On December 20, 2008, he and appellant, who both worked in
construction, were preparing to sleep in their car in a Home Depot parking
lot in order to obtain work in the morning. Immigration officers appeared
at the parking lot, and everyone in the parking lot ran off.

   Next, appellant and his brother went to a gay country western bar so
that appellant, who had worked as a male prostitute, could earn money by
engaging in sex acts with other men. Before the Gentrys met the victim,
appellant had already left the bar with a male client and returned.

   The Gentrys met the victim inside the bar around midnight. The
brother said that he was looking for a place to sleep other than the car.
The victim offered them both a place to stay.

   At the victim’s request, the brother drove the victim’s car while
appellant and the victim were kissing in the back seat. They picked up
food from a Taco Bell drive-through and returned to the bar. The victim
got out of the back seat and told the brother to follow him separately in
his own car.

   At the victim’s apartment, the victim made the brother a sandwich and
gave him a Coke and some aspirin. The victim and appellant entered the
bathroom; the brother did not know what they were doing, but he heard
the water start. The brother smoked a cigarette on the patio and then
came back inside where he fell asleep on the victim’s couch.

    The brother testified that appellant woke him by kicking the side of the
couch. The brother got up and followed appellant to the bedroom, where
the victim was sitting on the edge of the bed. Appellant put the victim in
a bear hug with his legs around the victim’s waist and his arms around
the victim’s shoulders. The victim told the brothers that they would have
to leave because he had other plans for the morning.

                                      2
   Appellant tightened his grip on the victim and stated that they were not
leaving unless he got paid “for what [he] did for [him].” The victim said he
had only a few dollars to give him. Appellant became upset.

   Appellant demanded credit card numbers from the victim, without
success. After the victim hit appellant in the face, appellant put the victim
in a “sleeper hold” until the victim fell unconscious. Appellant pulled a
phone cord out of the wall and tied the victim up. He put a belt around
the victim’s ankles. The brother grabbed a comforter or a blanket and
propped it underneath the victim to keep him on his side. At some point,
appellant put “a sock or something” around the victim’s mouth.

   Appellant ransacked the victim’s closet and piled clothes on the
brother, who took several trips to transport them to the car. When the
brother left the apartment, the victim lay on his side.

   The brother left the apartment complex in his car. Appellant left in the
victim’s car. They met back at the bar and decided to dump the victim’s
car nearby. They left in the brother’s car, bound for Las Vegas.

   The brother stated he believed that the victim would be discovered the
next morning. He said that there never was an intent to kill the victim.

                        Appellant’s Trial Testimony

   The defense theory of the case was that the death was caused by the
grossly reckless conduct of the brother. In his opening statement, the
defense attorney laid the groundwork to argue that Timothy Gentry was
responsible for the murder:

      The death of [the victim] was not a premeditated intent to kill.
      But it was the result of grossly reckless conduct. It wasn’t
      conduct perpetrated by James Gentry.

                                      ***

      It’s not until after they left and they are on the road and up
      the road that Tim has a few drinks in him and he proceeds to
      tell him, tell James, what happened. He went over to [the
      victim’s] apartment. [The victim] wanted to have sex with him.
      He got angry. . . . [The victim] told him okay you’ve got to leave,
      I got people coming over and Tim and [the victim] got into
      it and Tim tied [the victim] up.

                                      3
                                     ***

      Then it’s later in this journey afterwards that Tim fesses up
      that he left . . . he robbed [the victim], left him tied up,
      took his car and came back and ditched it near the gay
      bar.

      And Tim, as he said, didn’t intend to kill [the victim]. It was a
      consequence of a grossly negligent act.

                                     ***

      I want you to listen to James’ testimony, see if it rings true.
      Ms. Johnson’s going to have an opportunity to cross-examine
      him. She may play some additional phone calls. And after
      that you’re going to conclude that James Gentry did not
      kill [the victim]. That the person that killed [the victim],
      albeit unintentionally through a grossly reckless act was
      Timothy Gentry.

(Emphases supplied).

   Appellant testified at trial. He said that in December 2008 the two
brothers decided to come to Florida for work. A potential place to stay in
Boca Raton fell through. Appellant suggested that they hit some clubs
before going to Orlando to earn money there.

   On December 20, 2008, the brothers went to a gay bar for appellant to
engage sex partners for money. Appellant said he was a male prostitute
who sought out older men who would pay him for sex. Appellant met the
victim at the bar and agreed to engage in oral sex for $100. He and the
victim left the bar and got into the back seat of appellant’s car, where they
engaged in oral sex. Appellant testified that the victim put his fingers in
appellant’s anus, which defense counsel used to explain appellant’s DNA
under the victim’s fingernails.

   After appellant ejaculated, he and the victim returned to the bar, where
appellant introduced the victim to his brother. Appellant had a drink with
them and then “went back to work” to find his next client.

   Appellant insisted that he did not see his brother for the rest of the
night. Appellant went outside with two different clients and performed sex
acts on them for money. During those incidents, he saw his brother’s car

                                     4
in the parking lot, but not his brother. In the early morning hours, his
brother appeared. Because business at the bar was slow, the two brothers
left in the brother’s car for Orlando.

   Defense counsel sought to elicit testimony that, on the drive to Orlando,
the brother confessed to appellant that he was responsible for the victim’s
death:

            Q: Okay. Does there come a point in time when Tim
            tells you where he had been and what he had done?

            A: Yes.

            Q: Where was that and under what circumstances?

            A: That was on the trip to Orlando.

            Q: Okay. Was he drinking?

            A: Yes.

            Q: What does he tell you happened?

            A: He tells me that he was flirting with [the victim]. And
            [the victim] had offered him a place to stay.

            Q: Okay.

            A: So when he left with [the victim], they got to his
            house, [the victim] wanted to do more than just give him
            a place to stay.

            Q: Then what happened, what did he tell you
            happened?

            A: He said he got angry at [the victim] and, I guess, [the
            victim] was angry at him.

   At this point, the state asserted a hearsay objection, which the trial
court sustained.

   At a sidebar conference, defense counsel argued that testimony
regarding the brother’s confession was admissible as a declaration against
his penal interest. The court sustained the hearsay objection. The court

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allowed defense counsel to proffer the following testimony regarding the
alleged confession:

             Q: Did your b[r]other confession (sic) to you?

             A: Yes.

             Q: Tell this Court, just for the record what your brother
             confessed to you, what he said he did?

             A: He told me that he went to [the victim]’s house to
             sleep. [The victim] wanted to mess around, Tim did not.
             He wanted to sleep. He said [the victim] was upset and
             asked him to leave. And Tim decided he was, I guess,
             stranded and he didn’t know what else to do. So he tied
             [the victim] up, took his car. And that’s pretty much it.

   Although appellant was unable to tell the jury these specifics about his
brother’s confession, he did tell the jury that after having a conversation
with his brother in the car, he was concerned that he was assisting Tim in
committing a crime.

 The trial court committed no fundamental error in sustaining the
 state’s hearsay objection to appellant’s testimony concerning his
                        brother’s confession

   The trial court properly sustained the state’s objection to appellant’s
testimony concerning his brother’s confession. The testimony was not a
statement against interest pursuant to 90.804(2)(c), Florida Statutes
(2019), because the brother was not “unavailable as a witness”; the brother
testified at trial. Nor was the statement an admission “offered against a
party” under section 90.803(18), because the brother was not a “party” in
the trial.

   On appeal, appellant argues that the court’s ruling violated his right to
procedural due process under Chambers v. Mississippi, 410 U.S. 284
(1973). Appellant did not raise this objection at trial, so he did not preserve
this issue for appeal. In Hill v. State, the Florida Supreme Court held that
a failure to timely raise a “constitutional argument grounded on due
process and Chambers” in the trial court “procedurally bars appellant
from presenting the argument on appeal.” 549 So. 2d 179, 182 (Fla. 1989).
This means that we may properly review this issue only for “fundamental
error.”


                                      6
    “Fundamental error is error that ‘reaches down into the validity of the
trial itself to the extent that a verdict of guilty could not have been obtained
without the assistance of the alleged error.’” Krause v. State, 98 So. 3d 71,
73 (Fla. 4th DCA 2012) (quoting Bassallo v. State, 46 So. 3d 1205, 1209
(Fla. 4th DCA 2010)).

   We do not address the merits of the Chambers argument because we
conclude that, assuming the trial court’s ruling was incorrect, no
fundamental error occurred on this record.

   First, appellant’s brother—the declarant in the excluded testimony—
testified at trial and was available to be fully cross-examined on his role in
the murder. Had the defense attorney laid the proper foundation during
his cross-examination of the brother, the omitted statements could have
been admitted into evidence as prior inconsistent statements pursuant to
section 90.608(1), Florida Statutes (2019).

   Second, based on the evidence that was admitted at trial, the defense
attorney effectively presented the defense theory that the brother was
solely responsible for the murder. In his opening statement quoted above,
the attorney laid the groundwork for the defense theory that Timothy
Gentry had committed the murder without appellant’s help. During his
closing argument, the attorney hammered on inconsistencies between the
brother’s testimony and the physical evidence from the crime scene. He
argued that the brother was the guilty party:

      Now, we know from Tim’s testimony complaining about his
      back. He was tired and wanted a place to go. So he teams up
      . . . Tim teams up with [the victim] . . . and they go to his house
      in Tamarac. And that is the only person that’s at the house
      in Tamarac. Not James, only Tim. Now, I’ll discuss with
      you the forensic evidence that says why. And then at some
      point later, according to James, some point later Tim shows
      back up at the bar.

                                      ***

      So they go to Orlando. It’s on the way to Orlando that James
      has a conversation with Tim. And after that conversation,
      after that conversation you heard him answer the question,
      were you concerned after you had that conversation. Yes.
      What were you concerned about? I was concerned about
      aiding and assisting Tim in escaping for avoiding
      apprehension for a crime.

                                       7
                                    ***

      So I’m going to conclude and I'm going to leave you with this,
      with this. Finding James Gentry not guilty leaves you with
      the knowledge, with the knowledge that the man that
      committed this crime, Timothy Gentry, is in prison so
      justice has been served. Because the man that committed
      this crime is in prison.

(Emphases supplied). If the jury disbelieved appellant’s story that he was
in the bar all night and never entered the victim’s apartment, it is highly
unlikely that they would have bought into the defense theory had they
heard appellant say that his brother admitted to tying the victim up and
leaving the apartment. The missing testimony was not the linchpin for a
not guilty verdict.

   We have considered the argument raised concerning the admission of
recordings of jail calls between appellant and his girlfriend. We find no
abuse of discretion in the trial court’s ruling that the calls were relevant
and not unfairly prejudicial.

   Affirmed.

WARNER and GERBER, JJ., concur.

                           *         *         *

   Not final until disposition of timely filed motion for rehearing.




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