       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                         RISTO JOVAN WYATT,
                              Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D12-4377

                             [ May 20, 2015 ]

                         CORRECTED OPINION

   Appeal from the Circuit Court for the Nineteenth Judicial Circuit,
Indian River County; Robert L. Pegg, Judge; L.T. Case No.
312010CF000462B.

   Marcia J. Silvers of Marcia J. Silvers, P.A., Miami, for appellant.

  Pamela Jo Bondi, Attorney General, Tallahassee, and Luke R.
Napodano, Assistant Attorney General, West Palm Beach, for appellee.

TAYLOR, J.

    Risto Jovan Wyatt appeals his judgment of conviction and sentence for
trafficking in 28 grams or more of cocaine and for perjury. Because the
trial court erred in excluding prior exculpatory testimony from a witness
at a civil forfeiture hearing, we reverse and remand for a new trial. We
affirm as to appellant’s other points on appeal without discussion.

    Appellant and his co-defendant, Christopher Brown, were under
investigation for drug trafficking. Police monitored their phone calls over
a three-month period via an authorized wiretap. A surveillance team also
followed appellant and Brown on trips to Orlando, where police believed
they were purchasing cocaine to distribute in Indian River County. During
the surveillance, law enforcement officers never saw appellant or Brown in
physical possession of cocaine.

  Based on information received from the wiretap, officers decided to stop
appellant and Brown on one of their return trips to Indian River County,
expecting to seize cocaine that they believed appellant and Brown were
carrying. When officers stopped and searched the car, they did not find
any drugs in the car, but they discovered a plastic bag containing
approximately $16,000 on the backseat. Officers seized the money and
allowed appellant and Brown to leave.

   The Indian River County Sheriff initiated forfeiture proceedings
regarding the seized money. Appellant, Brown, and Rashonda James, the
owner of the car, were joined as claimants. An assistant state attorney,
from the same state attorney’s office that prosecuted appellant in this case,
represented the Sheriff’s office at the forfeiture hearing. The assistant
state attorney sought to establish probable cause that the money seized
from the car was intended to be used to purchase narcotics. He cross-
examined Ms. James at the forfeiture hearing.

    Ms. James testified that the money seized from her car belonged to her.
She said she was in a romantic relationship with appellant and that he
often borrowed her car. Ms. James testified that she had placed the money
in the back seat of the car behind the driver’s side. It was inside a Walmart
bag and tied up in a black jacket. Ms. James maintained that appellant
and Brown did not know that the money was in the car.

   Ms. James, a pharmacist, testified that she had been withdrawing
money from her bank account to set aside for savings for over a year. On
the day her car was stopped, she had placed the money in her car because
she was planning to meet someone to buy rental property. She explained
that she intended to pay cash for the investment property because she
hoped to get a lower price.

    Appellant testified that he borrowed Ms. James’s car that day without
her knowledge. Both appellant and co-defendant Brown testified that they
did not know there was a Walmart bag filled with money on the backseat
of the car.1 The trial court found that there was not sufficient probable
cause for forfeiture and ordered that the money be returned to Ms. James.

   At trial, the law enforcement officers who monitored the calls testified
and provided foundation evidence for the admission of fifty-six telephone
recordings. During the phone calls, appellant and Brown discussed
purchasing “polos,” “rims,” and “t-shirts.” The officers testified that those
were code words for quantities of cocaine.

     Mark Leakes was arrested and charged with conspiracy to traffic in over

1   They were both charged with perjury based on this testimony.

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400 grams of cocaine. At trial, he testified that he supplied co-defendant
Brown with cocaine in Orlando. He conducted most of his business with
Brown, but appellant accompanied Brown during some of the
transactions.

    At trial, appellant sought to introduce a transcript of Ms. James’s
testimony at the forfeiture hearing, as former testimony of an unavailable
witness under section 90.804(2)(a), Florida Statutes. The state and
appellant stipulated that Ms. James was an unavailable witness because,
if called to testify, she intended to exercise her Fifth Amendment right
against self-incrimination. The trial court, however, sustained the state’s
objection to admission of Ms. James’ former testimony and excluded it.

    On appeal, appellant argues that the trial court abused its discretion
in excluding Ms. James’s former testimony at his criminal trial. He asserts
that her testimony was admissible under section 90.804(2)(a), because the
sheriff’s office, through the assistant state attorney’s cross-examination,
had an opportunity and similar motive to show that Ms. James’s testimony
was not trustworthy and to establish that the seized money belonged to
appellant and was intended for the purchase of narcotics. We agree.

    The standard of review for a trial court’s admission of evidence is abuse
of discretion. Padgett v. State, 73 So. 3d 902, 904 (Fla. 4th DCA 2011).
The trial court’s discretion, however, is limited by the rules of evidence.
Id.

   Section 90.804(2), Florida Statutes (2010) provides an exception to the
hearsay rule, when the declarant is unavailable, for:

      (a) Former testimony.--Testimony given as a witness at
          another hearing of the same or a different proceeding, or
          in a deposition taken in compliance with law in the course
          of the same or another proceeding, if the party against
          whom the testimony is now offered, or, in a civil action or
          proceeding, a predecessor in interest, had an opportunity
          and similar motive to develop the testimony by direct,
          cross, or redirect examination.

    A declarant is unavailable to testify if the declarant asserts his or her
Fifth Amendment right against self-incrimination. Roussonicolos v. State,
59 So. 3d 238, 240 (Fla. 4th DCA 2011) (citing Henyard v. State, 992 So.
2d 120, 126 n.3 (Fla. 2008)). As the state stipulated, Ms. James was
unavailable to testify at appellant’s trial.


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   In Garcia v. State, 816 So. 2d 554 (Fla. 2002), the Florida Supreme
Court reversed the double murder convictions of a defendant who
unsuccessfully sought to introduce the prior testimony of his co-
defendant. Id. at 565-66. The co-defendant, who was tried first in a
severed trial, testified and confessed to committing the murders alone; he
denied that the defendant was involved. Because the co-defendant
invoked his Fifth Amendment right during Garcia’s trial and refused to
testify, Garcia attempted to introduce the co-defendant’s trial testimony
under section 90.804(2)(a), as former testimony of an unavailable witness.
The trial court denied the request. On appeal, the Florida Supreme Court
reversed, concluding that the trial court erred in excluding the former
testimony.

   The Garcia Court noted that “because Garcia was not tried with [co-
defendant], the State did not have the identical motive in cross-examining
[the co-defendant] as it would have had if the State tried [co-defendant]
and Garcia together.” Id. at 564. The court went on to point out, however,
that “section 90.802(2)(a) does not require an identical motive but only a
‘similar motive.’” Id. The supreme court considered the state’s motive at
both trials as similar. In both instances, the motive was “to discredit [the
witness’s] testimony and show it to be not worthy of belief.” Id. at 565.
The court stated:

         Moreover, the failure to allow the jury to hear this
      testimony deprived the jury of important additional evidence
      that could have been critical to assessing Garcia’s guilt.
      Indeed, where Garcia’s alleged involvement in the crimes
      hangs on the testimony of one individual . . . the jury was
      entitled to consider the testimony of the [co-defendant], who
      took the stand in his own trial and specifically testified that
      Garcia was not involved in these murders. In this case, to
      prevent the jury from hearing the prior recorded testimony of
      the [co-defendant], which the State subjected to cross-
      examination, is to apply the hearsay rule “mechanistically to
      defeat the ends of justice.” For all these reasons, the exclusion
      of [co-defendant’s] prior sworn testimony constituted error,
      which . . . was not harmless beyond a reasonable doubt.

Id. at 565-66 (internal citation omitted).

   In Roussonicolos, 59 So. 3d at 241, we followed Garcia in holding that
a witness’s testimony at a pre-trial bond hearing was admissible in the
defendant’s criminal trial under the former testimony exception. There,
the defendant and the witness were charged with fraud. The theory of

                                      4
defense was that the witness acted alone. At the defendant’s bond hearing,
the witness testified that he acted alone and was solely responsible for the
fraud. However, by the time of the defendant’s trial, the witness had
invoked his Fifth Amendment right against self-incrimination and was
unavailable to testify. In concluding that the witness’s prior testimony at
the pre-trial bond hearing was admissible at the defendant’s criminal trial,
we explained:

         We do not read Section 90.804(2)(a) to require that, in
      order for prior testimony to be admitted as an exception to the
      hearsay rule, the opponent of the evidence must have the
      same motivation to examine the witness in both the prior
      proceeding and the one in which the prior testimony was being
      introduced. Nor, as the State suggests, must the scope of
      inquiry conducted at the bond hearing be the same as the
      scope of the examination at trial. Garcia, 86 So. 2d 554. To
      require such a high standard would render this hearsay
      exception useless.

Id. at 241.

   We further explained:

         The State had an opportunity to cross-examine [the
      witness] at the bond hearing. It also had a “similar motive” at
      both the trial and the bond hearing, specifically “to discredit
      [the witness’s] testimony and show it to be not worthy of belief”
      given the exculpatory nature of [the witness’s] testimony.

Id. at 242-43.

    Similarly, in this case, the assistant state attorney, acting on behalf of
the sheriff’s office, had an opportunity to cross-examine Ms. James at the
forfeiture hearing. The state attorney’s office had a “similar motive” at both
the trial and the forfeiture hearing, specifically “to discredit the witness’s
testimony and show it to be not worthy of belief,” given the exculpatory
nature of Ms. James’s testimony, i.e., the currency did not belong to the
defendant and was not to be used to purchase drugs. Accordingly, based
on these facts and circumstances, the trial court erred in excluding Ms.
James’s former testimony.

   We conclude that the exclusion of Ms. James’s testimony was not
harmless. The state, as the beneficiary of the error, has not proven beyond
a reasonable doubt that the error in excluding exculpatory testimony

                                      5
about the ownership and intended use of money did not contribute to the
verdict. See State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986). No drugs
were found in the car, and the state relied heavily upon the $16,000 in
currency seized from the car to support its theory that appellant and co-
defendant Brown intended to purchase cocaine from Leakes. At the
forfeiture hearing, Ms. James claimed ownership of the currency and
provided an explanation for its presence in the car. Failure to allow the
jury to hear this testimony deprived the jury of critical evidence in
determining appellant’s guilt.

   Reversed and Remanded for a new trial.

STEVENSON and CIKLIN, JJ., concur.

                           *         *        *

   Not final until disposition of timely filed motion for rehearing.




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