Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D19-1039 _____________________________ CLEMENT CALVIN BURNAM, JR., Appellant, v. STATE OF FLORIDA, Appellee. _____________________________ On appeal from the Circuit Court for Baker County. James M. Colaw, Judge. October 19, 2020 LONG, J. Clement Calvin Burnam, Jr., appeals his nine convictions and 40-year minimum mandatory sentence arising from a drive-by shooting. He raises three issues, but we write only to address the first—whether the trial court erred by allowing a witness, his co- defendant Kiera Williams, to testify about a message Mr. Burnam sent her shortly after the crime. As to the second and third issues, we affirm without further comment. I. Mr. Burnam shot two handguns at several people while he rode in the passenger seat of a car. His co-defendant, Ms. Williams, was the driver. The intended target was shot and sustained non-life-threatening injuries. Other victims suffered only scrapes and bruises. Property was also damaged. Mr. Burnam was charged with committing nine different offenses arising from this incident. While they escaped in the car, Mr. Burnam instructed Ms. Williams to call her “homegirl” to establish an alibi. During this time they coordinated the stories they would tell the investigators who would inevitably come calling. In furtherance of this anticipated deception, Mr. Burnam turned his own phone onto ‘airplane mode’ to avoid tracking. Mr. Burnam also instructed Ms. Williams to get her car painted a different color so the victims would have difficulty identifying them. At trial, Ms. Williams testified that a couple days after the shooting, Mr. Burnam communicated with her through an instant messenger application. One of the messages exchanged was admitted into evidence. She said they communicated through the application “on numerous occasions” and that the following message, sent from Mr. Burnam, was part of a larger conversation about the shooting: It’s best not to get it painted. If everybody stick with the script, we untouchable. It don’t matter what they say, it’s what they can prove. They can’t prove that was you, and they can’t prove you committed any crime whatsoever. I know for a fact they can’t prove it. Trust me. I done been through this before. Don’t switch it up. You were with your homegirl, so whatever they talking, they just trying to throw blame, but I’m going to keep looking for a cheaper price on paint, Maaco got a 399 special. After it was admitted, the State attempted to ask clarifying questions to Ms. Williams about certain parts of the message. This was met with an objection. Trial defense counsel argued Ms. Williams was “completely unqualified to define anything other than what’s on that document,” and that “[i]t speaks for itself.” The trial court overruled the objection. Ms. Williams then answered several questions about “get[ting] it painted,” “stick[ing] with the script,” who her “homegirl” was, and the reference to “Maaco.” In each instance, Ms. Williams referred to Mr. Burnam’s 2 prior statements. Mr. Burnam argues on appeal this was improper lay opinion testimony. II. We review evidentiary rulings for abuse of discretion. Ray v. State, 755 So. 2d 604, 610 (Fla. 2000). Courts have limited certain types of evidence and testimony that are thought to intrude on a jury’s decision-making role. This has included lay witness inference or opinion testimony where the inference or forming of an opinion was the prerogative of the jurors. Floyd v. State, 569 So. 2d 1225, 1231–32 (Fla. 1990) (“Generally, a lay witness may not testify in terms of an inference or opinion, because it usurps the function of the jury.”). Mr. Burnam argues that Thorp v. State, 777 So. 2d 385 (Fla. 2000), supports his claim that the testimony admitted here was improper. Thorp involved a conviction for first-degree murder based in part on the testimony of an inmate who had been incarcerated with the defendant. The inmate testified the defendant told him he “took a hooker down by the bridge and did her.” Over defense objection, the inmate was asked what he interpreted the phrase “did a hooker” to mean. He thought it meant the defendant killed her. There was no evidence this testimony was based on or supported by any prior conversation or was a code word. In fact, during the penalty phase of the trial, the defendant admitted having sexual intercourse with the victim, “an act which is equally consistent with his” statement to the inmate. Id. at 396. Thorp concluded the inmate’s testimony was improper lay opinion. But here, Ms. Williams did not speculate about the meaning of the message—she merely recounted Mr. Burnam’s own words. When asked about the statement “[i]t’s best not to get it painted,” Ms. Williams referred to the prior conversation in which Mr. Burnam told her to get her car painted to avoid being recognized by the victims. Likewise, when asked about the statement to “stick with the script,” she explained that immediately after the shooting they discussed and agreed on a script that everyone would tell the 3 investigators. She also explained Mr. Burnam discussed using her “homegirl” in the fabrication of their alibi. In Thorp the witness testified about an isolated conversation and then provided pure lay opinion about the statement’s meaning. A “lay witness’s testimony must be grounded in reliability and personal perception rather than speculation.” Lewek v. State, 702 So. 2d 527, 532 (Fla. 4th DCA 1997). Here, Ms. Williams simply testified about other relevant and admissible statements made by Mr. Burnam. Nothing about this testimony intruded on the jury’s decision-making role. The jurors were free to draw their own conclusions about the statements—what they meant and what weight, if any, to give them. We find the trial court did not abuse its discretion in permitting this testimony. AFFIRMED. LEWIS and NORDBY, JJ., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Andy Thomas, Public Defender, and Kevin P. Steiger, Assistant Public Defender, Tallahassee, for Appellant. Ashley Moody, Attorney General, and Virginia Chester Harris, Assistant Attorney General, Tallahassee, for Appellee. 4