Opinion
No. 1D18-4591
06-22-2021
Demarcus Montrel GIDDENS, Appellant, v. STATE of Florida, Appellee.
Jessica J. Yeary, Public Defender, and David Henson, Assistant Public Defender, Tallahassee, for Appellant. Ashley Moody, Attorney General, and Virginia Harris, Assistant Attorney General, Tallahassee, for Appellee.
Jessica J. Yeary, Public Defender, and David Henson, Assistant Public Defender, Tallahassee, for Appellant.
Ashley Moody, Attorney General, and Virginia Harris, Assistant Attorney General, Tallahassee, for Appellee.
Per Curiam.
Demarcus Montrel Giddens challenges his convictions for first-degree murder and attempted robbery. He argues that the trial court erred when it allowed the prosecutor to ask Giddens whether the State's witnesses—including his two-codefendants who cut deals with the State—were being untruthful, and whether they all had lied to the jury. We agree, but we still affirm because the State met its burden to show that there was no reasonable possibility that this error contributed to the jury's verdict. I.
The charges here arose from a drug deal that turned into an attempted robbery and led to the shooting death of I.P. Giddens—along with his two co-defendants, Rodney Jones and Gertavious Canada—were in Panama City Beach to visit friends. On the night of August 19, 2017, the group ended up in the parking lot of a Taco Bell. While there, they met Timothy Westbrook and Keagan Yon. Jones approached Yon and asked to purchase some marijuana. Yon contacted his dealer, J.P., who agreed to meet them in a nearby CVS parking lot. J.P. was hanging out with I.P. when he received the call, so I.P. drove J.P. to the meeting.
At trial, Westbrook, J.P., Canada, and Jones each testified to a slightly different version of what occurred in the CVS parking lot after this. Westbrook described J.P. as hesitant to get out of the truck once he saw the large group of people in the parking lot. Giddens and Jones assured him that it was safe. Westbrook explained that after J.P. sat down on a curb to weigh the marijuana, he heard someone rack a gun. Then, Westbrook saw Giddens move in front of J.P. and say, "I'm not playing around, give me the weed." When Westbrook turned around, he saw Jones robbing Yon. Westbrook immediately fled the area. He heard a gunshot as he was leaving, but he never saw the gun and did not know who fired it.
J.P.’s testimony was that, when he looked up from weighing the marijuana, Giddens stood up, pulled out an AK-47, and pointed it in his face. Giddens told J.P. to give him everything. At that point, J.P. testified that he placed the marijuana behind his back and lay down on top of it. As J.P. refused, Giddens said, "Do you think this is a joke?" Then, Giddens racked the gun, which caused a round to eject and hit J.P. in the face. As this was happening, according to J.P., I.P.—the murder victim—started moving toward Giddens. Giddens then turned around and fired at I.P. without warning. J.P. testified that he believed I.P. was six to eight feet away when Giddens shot him. Everyone left the area after the gunshot, but J.P stayed with I.P until rescue services arrived. I.P died as a result of the gunshot.
Canada, who pleaded guilty to being a principal to the robbery and was sentenced to four years in prison for his involvement, testified that he saw J.P. and I.P pull up and J.P. get out of vehicle. J.P. sat between Jones and Giddens and started to weigh the marijuana. Jones then stood up and moved to a different area. According to Canada, Giddens also stood up, and he pulled the AK-47 out of a bag. Canada heard Giddens say to J.P, "You think this s*** is a game, you think this s*** a game?" As J.P. had testified, Canada explained that J.P. then placed the marijuana behind his back and lay on top of it. At that point, according to Canada, Giddens racked the gun and said, "Give the s*** up." Canada went to flee the area, and he heard a gunshot just a few seconds after he started running away.
Jones, the other co-defendant, had pleaded guilty to robbery with a deadly weapon and was sentenced to twenty years in prison for his involvement. On the stand, Jones stated that Giddens told him that he wanted to rob J.P. as they walked from Taco Bell to CVS. Jones testified that he was weighing the marijuana when he heard Giddens say, "You think this a f*****g game?" Jones then heard a loud noise. As he looked up, he saw Giddens shoot I.P. Jones admitted that he punched Yon and took Yon's phone and watch. When Jones asked Giddens why he shot I.P., Giddens said something that euphemistically could be characterized as, "To heck with that guy."
In his own defense, Giddens testified and provided a significantly different version of events. He denied telling Jones that he planned to rob J.P. Giddens described J.P. as walking over to Yon and Westbrook when he exited the vehicle. Soon after, Jones stood up and approached the group with money in his hand. Giddens said he noticed a change in Jones's body language and knew that something had gone wrong. According to Giddens, Jones then punched Yon. Giddens claimed that J.P. rushed him as he stood up and that he then pushed J.P. to the ground. Only then, according to Giddens, did he pull the AK-47 out of a backpack and tell everyone to stop. When they ignored him, Giddens said he racked the gun. Giddens claimed that he then saw I.P. charging him, at which point Giddens recalled stumbling back and hitting the curb. When this happened, Giddens said the gun discharged, after which, he saw I.P. fall to the ground. Everyone but him and J.P. left the area after the gun fired. Giddens testified that he did not leave until Jones returned and grabbed him.
On cross-examination, the prosecutor asked Giddens if statements made by Westbrook and J.P. were truthful, and he responded in the negative. Defense counsel objected, arguing that the prosecutor was not allowed to ask Giddens if the other witnesses were liars. The trial court overruled the objection. The prosecutor resumed asking Giddens if certain statements by the State's witnesses were truthful, and Giddens again responded in the negative. The prosecutor at one point then asked, "So they all lied to this jury?" And Giddens responded, "They didn't tell the whole truth."
On rebuttal, the State introduced the testimony of a jailhouse informant. The informant stated from the stand that Giddens told him that he planned to rob J.P. as soon as Yon set up the deal. The informant also stated that Giddens admitted to shooting I.P. as I.P. was running to help J.P. Finally, the informant stated that Giddens planned to argue self-defense, and if that did not work, he was going to "play the crazy role."
During closing, the prosecutor presented the following argument:
For you to believe [Giddens's] testimony, you have to look at the other testimony in the case, and [J.P.] wasn't being truthful, according to his version. Timmy Westbrook wasn't being truthful. [Rodney Jones] wasn't being truthful. Canada wasn't being truthful. Holloway in the jail wasn't being truthful. Just the defendant. That's his version. You know, when someone is telling you that everybody is wrong except them, you need to start looking at their story a whole lot closer.
The jury found Giddens guilty of first-degree murder with a firearm and attempted robbery with a firearm. The court sentenced Giddens to concurrent terms of life in prison and twenty-five years in prison. Gidden appeals.
II.
We review a trial court's ruling on an objection to cross-examination for an abuse of discretion. See McCoy v. State , 853 So. 2d 396, 406 (Fla. 2003). But that discretion is limited by the rules of evidence. See McCray v. State , 919 So. 2d 647, 649 (Fla. 1st DCA 2006). The State properly concedes that the trial court abused its discretion in overruling defense counsel's objection because it is improper to ask a witness if another witness is lying. See Knowles v. State , 632 So. 2d 62, 65 (Fla. 1993). However, by law, we cannot reverse a judgment unless we are of the opinion that the error "injuriously affected the substantial rights of" Giddens, and we are not to presume such an injurious effect. § 924.33, Fla. Stat. (2017). In other words, we do not reverse if the error was harmless. See Knowles , 632 So. 2d at 66. The harmless error test places the burden on the State "to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility the error contributed to the conviction." State v. DiGuilio , 491 So. 2d 1129, 1138 (Fla. 1986). In no way do we condone the prosecutor's actions in this case. He should have known that this line of questioning was impermissible. And he compounded the error by continuing to ask Giddens if the other witnesses were being untruthful even after defense counsel's objection. Still, under the unique facts of this case, we conclude the State has met its burden.
It is fair to say that Giddens never disputed that he was the person that shot I.P. That was not his defense. Instead, Giddens defended against the charge by claiming in his own testimony that he did not commit a robbery, that he brandished the gun in self-defense or in defense of others, and that the gun accidentally discharged when I.P. aggressively charged him. No doubt in anticipation of Giddens's story, which conflicted in significant ways from the stories told by the State's witnesses, Giddens's lawyer extensively cross-examined the State's witnesses—two of whom were cooperating co-defendants—to undermine their testimony by highlighting the inconsistencies and, as to the co-defendants, to bring out the fact that they had told conflicting stories. In fact, Giddens's lawyer was the one who first asked whether Jones had lied—in his questioning of Jones. And during closing, Giddens's counsel argued that the State's witnesses were untruthful and that the co-defendants had access to all the discovery—including witness statements—for over a year.
Through cross-examination and closing argument, Giddens's counsel made it abundantly clear to the jury that the key to his defense was the proposition that the State's witnesses were either lying about or minimizing their involvement in the incident. There was, in other words, plenty of impeachment questioning on behalf of Giddens to telegraph to the jury that he believed the State's witnesses were not telling the truth and that the jury should believe his version of events instead. We see no reasonable possibility that this would have been any less the case even without the prosecutor's inappropriate questions; there was, quite frankly, no other way to reconcile Giddens's defense with the testimony of the State's witnesses. The jury seemingly did not buy Giddens's story. The testimony of the jailhouse informant on rebuttal—basically, that Giddens admitted to manufacturing his defense—presumably did not help. In the light of all of this, we are certain that even without the prosecutor's improper questioning, the outcome of the trial would have been the same. Put simply, we conclude that the error here was harmless beyond a reasonable doubt.
AFFIRMED .
Ray, C.J., and Rowe and Tanenbaum, JJ., concur.