Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT STATE OF FLORIDA, Petitioner, v. HOWELL EMANUEL DONALDSON, III, Respondent. No. 2D21-1195 April 8, 2022 Petition for Writ of Certiorari to the Circuit Court for Hillsborough County; Samantha L. Ward, Judge. Ashley Moody, Attorney General, Tallahassee, and Christina Z. Pacheco, Assistant Attorney General, Tampa, for Petitioner. Julianne M. Holt, Public Defender, Tampa, and Dana M. Herce- Fulgueira, Assistant Public Defender, Tampa, for Respondent. ATKINSON, Judge. The State petitions this court for a writ of certiorari to quash the order entered by the trial court on the State's notice of intent to introduce Williams1 rule evidence in four pending murder trials of Howell Emanuel Donaldson, III. Because the State proffered evidence that the same firearm found in Donaldson's possession was utilized in all four murder cases, we grant the petition and quash the trial court's order. I. The State charged Donaldson in a single information with four counts of premeditated murder of (I) Benjamin Mitchell on October 9, 2017; (II) Monica Hoffa on October 11, 2017; (III) Anthony Naiboa on October 19, 2017; and (IV) Ronald Felton on November 14, 2017. The State filed a notice of its intent to seek the death penalty. Donaldson moved to sever the four offenses, arguing that severance was "necessary to achieve a fair determination of [Donaldson's] guilt or innocence of all charges." The trial court granted the motion to sever, finding that the crimes were not part of a "spree" and that there was no causal connection between them. The State filed a notice of its intent to rely on Williams rule evidence in the severed cases, along with a memorandum of law in 1 Williams v. State, 110 So. 2d 654 (Fla. 1959). 2 support. The State argued that the evidence of the other murders was relevant to prove "intent, preparation, common scheme and plan, system or general pattern of criminality, opportunity, knowledge and [Donaldson's] identity as the killer." It was also "relevant to show absence of mistake or accident, to the proof of premeditation in the commission of the murders and to establishing the entire context out of which the murders occurred." The memorandum contained a factual proffer, which is summarized below. The first victim, Benjamin Mitchell, was killed after sustaining four gunshot wounds to his chest, torso, abdomen, and right arm around 9:00 p.m. on October 9, 2017. He was standing alone at a bus stop. Officers located his cell phone near his body. Two fired casings manufactured by "SIG," which came from a .40 caliber firearm, were recovered. The second victim, Monica Hoffa, was shot two days later on October 11, 2017, around 8:47 p.m. approximately 0.6 miles from the Mitchell scene. Officers did not locate Hoffa's body when they responded to the scene where shots were reportedly fired. They discovered her body two days later on October 13, 2017, at an 3 overgrown lot. Police recovered five fired .40 caliber cartridges manufactured by "SIG" near her body. Robbery did not appear to be the motive because police discovered cash and jewelry on her person. Hoffa suffered three gunshot wounds—one to her neck and two to her back. The third victim, Anthony Naiboa, died eight days after Hoffa, on October 19, 2017, at approximately 7:57 p.m. He suffered a single gunshot wound to his head. He was killed in the driveway of the residence of the first victim, Mitchell, approximately 0.1 miles from the Mitchell scene and 0.7 miles from the Hoffa scene. Police recovered a single .40 caliber fired casing manufactured by "SIG." His wallet and keys were located under his body. The fourth victim, Ronald Felton, was shot four times—one to his back, two to his head, and one to his right hand—on November 14, 2017, at approximately 4:50 a.m. Four fired .40 caliber casings manufactured by "SIG" were found near the scene. Police located his wallet, keys, and cell phone. The scene of the Felton murder was 0.6 miles from the Mitchell scene, 0.3 miles from the Hoffa scene, and 0.6 miles from the Naiboa scene. 4 An analyst from the Florida Department of Law Enforcement examined the recovered cartridges and identified them as being fired from a .40 caliber Glock brand firearm. She later identified the cartridges as coming "from the same recovered Glock handgun that the defendant purchased on October 3, 2017, [and] picked up on October 7, 2017, two days before the murder of Benjamin Mitchell." Police recovered the Glock firearm on November 28, 2017, from the manager of a restaurant where Donaldson worked. Donaldson had asked her to hold a food bag, directing her not to look inside, while he went to obtain funds that he explained were necessary for him to purchase a one-way airline ticket and leave the state because he had done something that he could not take back. Donaldson's firearm was a Glock model 27; it was loaded with .40 caliber ammunition manufactured by "SIG." During an interview with police, Donaldson admitted that he purchased the weapon in September of 2017 and that no one else had control of the firearm since his purchase. The State argued in the trial court that the other murders were admissible to establish Donaldson's identity as the murderer in each of the individual cases. Additionally, the State argued in its 5 memorandum of law that the other murders were "relevant given that Donaldson used the same gun in all four murders, and such evidence would demonstrate identity and refute any potential defense that someone else had taken possession of the gun," citing Amoros v. State, 531 So. 2d 1256, 1260 (Fla. 1988). The trial court concluded that the four murders were not sufficiently similar to warrant the admission in each individual trial. Citing Drake v. State, 400 So. 2d 1217, 1219 (Fla. 1981), the court explained that the similarities among the murders highlighted by the State lacked a "special character" and were not "so unusual as to point to the defendant." The State filed a timely petition for a writ of certiorari seeking to quash the trial court's order. II. This court has found that the exclusion of Williams rule evidence constitutes "a material injury when the order significantly impairs the State's ability to present its case at trial." State v. Hall, 292 So. 3d 851, 853 (Fla. 2d DCA 2020) (citing State v. Pettis, 520 So. 2d 250, 253 (Fla. 1988)). "[B]ecause the State has no right to appeal from a final judgment of acquittal in a criminal case, the appellate remedy is inadequate if the order from which relief is 6 sought is not an appealable nonfinal order under Florida Rule of Appellate Procedure 9.140(c)(1)." Id. Here, because the exclusion of the Williams rule evidence would impair the State's ability to establish the identity of Donaldson as the perpetrator of all of the murders, we have certiorari jurisdiction. See State v. Williams, 992 So. 2d 330, 334 (Fla. 3d DCA 2008) ("[W]e find that certiorari relief is appropriate in this case as the exclusion of the evidence might significantly impair the State's ability to prosecute the defendant."). III. To grant a writ of certiorari, there must be a "departure from the essential requirements of the law," which "is something more than a simple legal error." Ivey v. Allstate Ins. Co., 774 So. 2d 679, 682 (Fla. 2000). The "Williams rule" is codified at section 90.404(2), Florida Statutes (2020), and "allows introduction of similar fact evidence of other crimes or acts by the defendant that are relevant to prove a material matter in the prosecution." McDuffie v. State, 970 So. 2d 312, 323 n.2 (Fla. 2007). Similar fact evidence of other crimes, wrongs, or acts is admissible when relevant to prove a material fact in issue, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, but it is 7 inadmissible when the evidence is relevant solely to prove bad character or propensity. § 90.404(2)(a)). To admit Williams rule evidence the trial court must determine (1) whether the defendant committed the other crime, (2) whether the other crime is sufficiently similar to be relevant, (3) whether the remoteness of the other crime diminishes its relevance, and (4) whether the prejudicial effect of the other crime substantially outweighs its probative value. See Robertson v. State, 829 So. 2d 901, 907–08 (Fla. 2002). This necessarily demands a "highly individualized, factually intensive inquiry." Id. at 908. While the trial court did not depart from the essential requirements of the law in rejecting the State's modus operandi rationale, exclusion of the evidence did constitute a departure because it was admissible under the State's alternative theory of identity that did not rely on establishment of a modus operandi. The trial court understandably focused on the modus operandi theory because much of the State's emphasis in its trial court argument was on the relevance of the other murders to establish Donaldson's identity through modus operandi. According to the Florida Supreme Court, proving identity under the mode of 8 operating theory turns "on both the similarity of and the unusual nature of the factual situations being compared." Drake, 400 So. 2d at 1219. As a result, general similarity is legally insufficient; "[t]here must be identifiable points of similarity which pervade the compared factual situations," and these "points of similarity must have some special character or be so unusual as to point to the defendant." Id. This is not a typical scenario involving modus operandi where the only evidence that the defendant committed the charged crime is its similarity to another crime of which the defendant has already been independently established as the perpetrator. See, e.g., Crump v. State, 622 So. 2d 963, 967–69 (Fla. 1993); Gore v. State, 599 So. 2d 978 (Fla. 1992). In such a scenario, the similarity of the established crime to the charged crime must indicate a manner or method of commission peculiar enough to suggest they were probably not committed by different people. The fatal shootings of which Donaldson is accused occurred in somewhat close temporal and geographic proximity to one another, and the victims all seemed similarly random insofar as there is no known affiliation with the accused. But these pedestrian similarities are a round peg 9 ill-suited to the square hole of the modus operandi test, which requires unusually similar characteristics that "pervade the compared factual situations" and "have some special character" that indicates the same individual carried out the crimes. See Drake, 400 So. 2d at 1219 (explaining that the analysis turns "on both the similarity of and the unusual nature of the factual situations being compared" and requiring "identifiable points of similarity which pervade the compared factual situations" and "have some special character or [are] so unusual as to point to the defendant"). Here, while the State did advance a modus operandi theory, it also advanced an alternative theory that did not rely on establishment of a modus operandi and, as such, did not require the similarity showing necessary for a modus operandi theory. The theory is that evidence points to Donaldson as the perpetrator—not because he committed each homicide in similar fashion—but because they were all committed with his firearm. This case is similar to Williams, 992 So. 2d at 333, in which the Third District distinguished identity supported by a modus operandi theory and involved the exclusion of evidence of two additional armed robberies which that defendant had allegedly committed. There, the trial 10 court ruled that the evidence was inadmissible "because the collateral crimes were not sufficiently similar to each other and had 'no special character or are not so unusual as to point to the defendant.' " Id. at 332. The Third District reversed: Because the gun used in all three robberies was shown to be the same one, the only inquiry for the trial court to make was whether such evidence of collateral crimes, which included both physical evidence and eyewitness testimony, was relevant to the issue of the perpetrator's identity—not whether the evidence revealed uniquely similar factual situations. Id. at 333. The Third District noted there that "the State . . . sought to prove identity based on evidence that the same gun was used in all three robberies." Id. Here, as in the Third District's Williams case, the fact that the same gun was used in each of the homicides makes the evidence relevant to establish Donaldson's identity as the perpetrator of the crimes. The evidence of the other homicides is admissible to prove identity without having to establish the heightened similarity requirement, which is "reserved for determining the admissibility of collateral crime evidence, where the State seeks to prove identity through modus operandi, common plan, or scheme." Id.; cf. Wright v. State, 19 So. 3d 277, 292 (Fla. 2009) (noting that evidence of a 11 crime spree is relevant "because the charged offense and the other conduct are significantly linked in time and circumstance" and because it is an "interwoven part of the conduct that is at issue"). Furthermore, the fact that all the victims were killed with the same exact firearm, owned by the accused, is itself a similarity between the other crimes and the charged crime. While it is doubtful that this connection could be considered the type of similarity that establishes a modus operandi as that term is ordinarily understood, the connection alone is all that is necessary to establish its relevance to the issue of the perpetrator's identity. And we need not opine beyond that relevance; we express no opinion as to how valuable the identity evidence would be to the State's case. We only conclude that it has value to the State for establishing that Donaldson, and not another individual, committed the crimes. Whether such probative value is or is not outweighed by any undue prejudice it might have to the defendant is beyond the scope of this review; having erroneously found the evidence irrelevant for any permissible evidentiary use, the trial court had no reason to engage in that weighing exercise. See § 90.403 ("Relevant evidence is inadmissible if its probative value is substantially 12 outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence." (emphasis added)). The fact that the evidence would help the State establish Donaldson's identity as the perpetrator makes the evidence admissible for a purpose other than to impugn his character or suggest his propensity to commit murders, which is all that section 90.404(2) demands. See Williams, 110 So. 2d at 662 ("If found to be relevant for any purpose save that of showing bad character or propensity, then it should be admitted."); see also § 90.404(2)(a) ("Similar fact evidence of other crimes, wrongs, or acts is admissible when relevant to prove a material fact in issue, including . . . identity . . . , but it is inadmissible when the evidence is relevant solely to prove bad character or propensity." (emphasis added)). The State proffered evidence that Donaldson's firearm was used in each of the four murders, making evidence of each murder sufficiently similar and adequately relevant to his identity to warrant admission under section 90.404(2). Accordingly, the trial court departed from the essential requirements of the law by excluding the Williams rule evidence. 13 Petition granted and order quashed. SMITH and LABRIT, JJ., Concur. Opinion subject to revision prior to official publication. 14