Full Opinion

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT CARL VAUGLY AUGUSTE, Appellant, v. STATE OF FLORIDA, Appellee. No. 4D2024-3260 [September 9, 2026] Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Martin Samuel Fein, Judge; L.T. Case No. 062022CF000461A88810. Daniel Eisinger, Public Defender, and Summer Hill, Assistant Public Defender, West Palm Beach, for appellant. James Uthmeier, Attorney General, Tallahassee, and Luke R. Napodano, Senior Assistant Attorney General, West Palm Beach, for appellee. SHAW, J. This appeal follows the defendant’s jury trial convictions for first-degree murder with a firearm and possession of a firearm by a convicted felon. The defendant claims that the circuit court erred by: (1) permitting the State to introduce evidence of the nature of the defendant’s five prior criminal convictions; (2) permitting the State to introduce evidence regarding the defendant’s belief that the murder victim killed the defendant’s best friend; (3) denying the defendant the ability to speak with his defense counsel during the period between the conclusion of his direct examination and the beginning of his cross-examination, and again in the middle of his cross-examination; (4) denying the defendant’s disqualification motion; and (5) denying the defendant’s motion for new trial. The defendant also contends that section 790.23, Florida Statutes (2022), which prohibits the possession of a firearm by a convicted felon, is facially unconstitutional under both the Florida Constitution and the United States Constitution. We affirm on all issues. We write only to discuss the admission of evidence concerning the nature of the defendant’s prior criminal convictions. I. BACKGROUND a. The Facts Established at Trial This case arose following the defendant’s armed confrontation with the victim, which resulted in the defendant’s shooting and killing the victim. We outline the facts established at trial given their relevance to our harmless error analysis. The defendant’s girlfriend, 1 the victim’s girlfriend, and the defendant testified regarding the events surrounding the victim’s death. The defendant testified that in approximately May 2018, a friend gave him a rose gold chain. Shortly thereafter, the victim robbed the defendant of the chain at gunpoint. Several years later, a friend told the defendant that the victim was at a club wearing the chain. The defendant went to the club so that he could personally observe the victim wearing the rose gold chain that was once his. The defendant did not confront the victim at that time because he did not have a gun. However, the defendant and his girlfriend followed the victim’s car home so that the defendant could see where the victim lived. The next evening, the defendant (who was carrying a gun this time) and his girlfriend went to a food truck by the club. While there, they saw the victim leaving the food truck. They then followed the victim as he went to another club, waiting in the car for him to leave. The defendant told his girlfriend that the victim had his chain, and he wanted to get it back. When the victim left this club, the defendant and his girlfriend left, too, and drove toward the victim’s house. The defendant took a napkin (or paper towel) to cover the car’s license plate, then instructed his girlfriend to park the car several houses away from the victim’s house. 1 The defendant testified that this witness was not his girlfriend, but a close friend. The witness described herself as the defendant’s girlfriend. The distinction is immaterial to our analysis, so we will refer to her as the defendant’s girlfriend. 2 The defendant, who was dressed in black clothing, 2 hid behind a car to surprise the victim. When the victim arrived at his house, the defendant approached the victim’s vehicle on foot. The victim was seated in the driver’s seat of his car and had his window down. The defendant demanded the victim return his chain and lifted his shirt to show that he had a gun. The victim then pushed open his car door and a tussle ensued between the two men. Both the victim and the defendant fired guns at each other. The defendant survived his gunshot wounds; the victim did not. b. The Testimony on the Nature of the Defendant’s Prior Convictions At trial, the defendant testified that he had five prior felony convictions. His defense attorney then asked whether he had taken any of those cases to trial. The defendant responded that he did not and was only taking this case to trial because he did not murder anyone. The State then sought to elicit testimony from the defendant about the nature of his five prior convictions, arguing such evidence was admissible because the defendant had minimized his prior convictions during his direct examination. The circuit court agreed and permitted the State to ask the defendant about the nature of each prior conviction. On cross-examination, the defendant admitted that he had pled guilty to aggravated battery once, aggravated battery with a firearm twice, burglary of a dwelling once, and grand theft once. Later, during the State’s closing argument, the State specifically referenced the nature of the defendant’s five prior convictions. II. STANDARD OF REVIEW “[A] trial court’s decision concerning the questioning of a witness about prior convictions is reviewed for abuse of discretion.” Mathis v. State, 135 So. 3d 484, 485 (Fla. 2d DCA 2014) (citing Stallworth v. State, 53 So. 3d 1163, 1165 (Fla. 1st DCA 2011)); see also Graves v. State, 937 So. 2d 1286, 1290 (Fla. 4th DCA 2006) (“The trial court has broad discretion to make determinations regarding the scope of cross-examination, and decisions to admit or exclude evidence will not be disturbed on appeal absent an abuse of discretion.”). 2 The defendant’s girlfriend and the victim’s girlfriend testified that the defendant was wearing a mask when he confronted the victim. The defendant denied wearing a mask. 3 III. DISCUSSION On appeal, the State concedes that the circuit court erred in finding the defendant had opened the door to questions about the nature of his prior convictions, 3 citing our holding in Ross v. State, 913 So. 2d 1184 (Fla. 4th DCA 2005), and the Third District’s holding in Hierro v. State, 608 So. 2d 912 (Fla. 3d DCA 1992). However, the State argues that the error was harmless because the defendant confessed on the stand to the charged crimes. The defendant disagrees, asserting that the testimony on the specific nature of his prior convictions likely influenced the jury because the testimony tended to show that he had a propensity for crime. Indeed, “the reason that convictions for prior felonies are such effective impeachment is that the mere fact that a defendant has been convicted of a crime impacts his believability.” Barcomb v. State, 68 So. 3d 412, 416 (Fla. 4th DCA 2011). In order to prove that a trial court’s error was harmless, “the [S]tate, as the beneficiary of the error, [must] 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 that the error contributed to the conviction.” State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986). We address each of the defendant’s convictions in turn. a. Possession of a Firearm by a Convicted Felon No reasonable possibility exists that testimony regarding the nature of the defendant’s prior convictions contributed to his conviction for being a felon in possession of a firearm. The defendant’s guilt was clearly established through the defendant’s testimony and his girlfriend’s testimony. The defendant’s girlfriend testified that the defendant was carrying a gun on the night the victim was killed. Additionally, during his own direct examination, the defendant admitted that: he was a five-time convicted felon who was on probation at the time of the offense; he knew he could not carry a firearm; and he nonetheless carried a firearm to confront the victim about the stolen chain. He admitted showing this firearm to the victim. Thus, the error in admitting testimony about the nature of the defendant’s five prior convictions was harmless as to this conviction. See id. 3 Because the State properly concedes error, we will not belabor the point. However, we note that the State erred both in questioning the defendant about the nature of his five prior convictions and by specifically discussing the nature of those five prior convictions again in closing argument. 4 b. First-Degree Murder Considering the totality of the evidence, the State met its burden of proving beyond a reasonable doubt that the error did not contribute to the first-degree murder conviction. See id. Under section 782.04, Florida Statutes (2022), first-degree murder may be proven by evidence establishing, among other things, that a person had a premeditated design. See § 782.04(1)(a)1., Fla. Stat. (2022). “Lying in wait supports a finding of premeditation.” Garcia v. State, 41 So. 3d 1072, 1075 (Fla. 4th DCA 2010). In this case, both the defendant’s and his girlfriend’s testimony established premeditation. First, the girlfriend testified that the defendant believed the victim had something to do with the killing of his best friend. She further testified that, on the night before the confrontation, the defendant asked her to follow the victim’s car to determine where he lived. The defendant told his girlfriend that he did not confront the victim that night because he did not have a firearm. The following night—while carrying a firearm and wearing black clothing and a mask—the defendant asked his girlfriend to take him to the victim’s house and park three houses away. The defendant covered the license plate of his girlfriend’s car to prevent the victim from identifying her. He told his girlfriend that the victim had his chain, and he wanted to get it back. Then, armed with a gun in his waistband, he hid behind a car and waited for the victim to return home. The armed defendant’s deliberate actions to surprise and confront the victim suffice to establish premeditation. See Garcia, 41 So. 3d at 1075. Furthermore, at trial, the defendant argued that he committed the killing in self-defense. We find that no reasonable jury would have found that the defendant acted in self-defense. The defendant admitted to lying in wait for the victim, carrying a firearm onto the victim’s property, confronting the victim by surprise, and brandishing the firearm to force the victim to relinquish a chain. This provoked the victim’s reaction of tussling with the defendant, retrieving his own firearm and shooting at the defendant. It is well-established that an “initial aggressor” is precluded “from asserting self-defense where he or she is the individual who provoked the use of force.” Martinez v. State, 981 So. 2d 449, 452 (Fla. 2008) (emphasis omitted) (citing § 776.041, Fla. Stat. (2007)). Furthermore, the Ring camera video introduced into evidence shows that the defendant was not backed into a corner or unable to escape during his confrontation with the victim. The defendant himself testified that the two men were tussling when they took their guns out and exchanged fire. No legal justification existed for the defendant to use deadly force against the victim. Accordingly, we find that the error in admitting testimony 5 regarding the nature of the defendant’s five prior convictions was harmless as to this conviction, as well. See DiGuilio, 491 So. 2d at 1135. IV. CONCLUSION Although the circuit court erred in allowing testimony about the nature of the defendant’s prior convictions, we hold that such error was harmless and affirm. We affirm on all other issues without comment. Affirmed. GERBER, C.J., and MAY, J., concur. * * * Not final until disposition of timely-filed motion for rehearing. 6