NOT FINAL UNTIL TIME EXPI RES TO FILE REHEARING MOTION AND, IF FIL ED, DETERMINED

IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT

KEVIN LEE KYNE, ) ) Appellant, ) ) v. ) Case No. 2D12-4278 ) STATE OF FLORIDA, ) ) Appellee. ) ) Opinion filed July 11, 2014. Appeal from the Circu it Court for Pinellas County; Nancy Moate Ley, Judge. Howard L. Dimmig, II, Public Defender, and Megan Olson, Assistant Public Defender, Bartow, for Appellant. Pamela Jo Bondi, Attorney General, Tallahassee, and Wendy Buffington, Assistant Attorney General, Tampa, for Appellee.

VILLANTI, Judge. Kevin Lee Kyne appeals his co nviction and sentence for one cou nt of second-degree murder and the revo cation of his probation. Beca use the trial court improperly allowed the State to i ntroduce extrinsic evidence of Mr. Kyne's prior violent disputes with his stepfather, we reverse his murder conviction and remand for a new- 2 - trial. This ruling also requires the trial court to reconsider the revocation of Mr. Kyne's probation. Diane Kyne was strangled and sm othered in her bed on the after noon of August 15, 2010. The only two indi viduals home with her at the time were her son, Kevin, 1 and her husband and Ke vin's stepfather, William. The first ca ll to 9-1-1 came from Kevin, in which he repor ted that William had killed Diane and was then trying to kill

him. The second call to 9-1-1 c ame from William, who reported that Kevin had killed Diane and was now fighting with hi m. Kevin and William were bo th questioned by the police in connection with Diane' s death, and each gave several varying statements. In those statements, Kevin and Will iam contradicted themselves and each other in numerous ways. Further, each of t he statements given by each o f the men were

somewhat inconsistent with the physical evidence. Ultimately, however, the police charged Kevin with first-degree mu rder for the death of his mot her. Prior to trial, Kevin moved in limine to exclude evidence of p rior violent acts he had allegedly committed in the family home. He concede d that evidence concerning his somewhat volatile relationship with Diane was ne cessary for the State to present an orderly, intelligibl e account of the case. That evi dence was relevant to show the extent of Kevin's anger, and its physical manifestations, w hen he and his mother disagreed, and it established t he context of the crime itself. Further, it provided a chronology of the events leading up to the crime that explained why Kevin might kill Diane over the use of a computer . However, Kevin sought to exc lude any evidence of

1 Because the parties are all fam ily members, we use their first names to avoid confusion.- 3 - prior violent disputes between hi mself and William because such prior disputes were

irrelevant to the issues in the murder case. In fact, the State did not ev en argue at the pr etrial hearing that the prior violent disputes between Kevin a nd William were relevant to any specific issue in the case. Instead, it argued that the ev idence was inextricably in tertwined with the facts of the case and necessary to allow the jury to understand "the dyn amics of the household." To that end, the State argued: One other aspect of that t hat needs to come out, Kevin had the pattern of calli ng the police himself even on situations where he was the one causing the problems, and the police would come. And th is won't come out in this detail. I'm just giving you the background. But the police would come out and basically say, We're leaving. We're gonna arrest you if we have to come back here again. You know, he'd goad his fat her. Go ahead, hit me so I can call the police. You know, you're going to jail now. Then he would call the polic e, and nobody – you know, nothing would happen because he was the problem. Okay? So that's very important because in this case, as I think you know, after William K yne discoveries [sic] Bill – I mean discovers Kevin choking or killing the mom, they fight, and he's trying to hold on to him . They go out in the front yard, and Kevin's on the cell phon e within minutes calling the police saying, My dad just k illed my mom. Okay? Now, that's – that's a pretty gr eat piece of evidence for the Defense – THE COURT: Uh-huh. THE STATE: – okay, assuming that the person doesn't have a pattern of doing that kind of behavior. And the jury needs to know that that 's part of his basis that he does that because that puts a li ttle bit differe nt spin on it. In response to this argument, K evin pointed out that the State had not filed a notice of intent to use evidenc e of prior bad acts as require d by section 90.404(2)(d), Florida Statutes (2012). In turn , the State argued that it nee d not comply with the requirements of section 90.404(2) because it was not offering t he evidence under that- 4 - section but instead was offering it solely as inextricably inte rtwined with the events of the day. When the court asked fo r an example of the evidence t he State intended to introduce, the State explained: Jeremy [William's older son] was around for the incident of maybe a week or two weeks before where Bill was – I mean where Kevin was g oading Bill into trying to hit him so [he] could call the polic e. All right? And I think Bil l did push him to get him out o f the way, and I believe the police were called that day. And so that's – not only is t hat close in time, but it also illustrates this, you know, behav ior by him of wanting to call the police and, you know, trying to goad Bill into doing these things. And so Jeremy saw that happen, and I'm gonna ask him about that. Not, you know, I don't care who – it's not whether he did a bad act or didn' t do a bad act. It has to do with him using the police and being accustomed to making that happen, I'm gonna call, and goading Bill into these scenarios. Kevin again argued that this type of evidence was not inextrica bly intertwined with the facts of the case because it was wholly irrelevant to the issue of whether he killed his mother. Nevertheless, the cour t ruled that the evidence of Kev in's prior violent disputes

with William would be admissible; however, the State was preclu ded from calling police officers to testify about the inci dents and from making the evi dence a feature of the trial. In this appeal, Kevin contends t hat the trial court abused its discretion when it permitted the State to i ntroduce extrinsic evidence of his prior violent disputes with William as being inextricably intert wined with the events of Diane's murder. We are compelled to agree. Evidence of collateral crimes, w rongs, or other acts is "inext ricably intertwined" with evidence of t he crime at issue "if the eviden ce is necessary to (1) adequately describe the deed; ( 2) provide an intelligent ac count of the crime(s)- 5 - charged; (3) establish the entir e context out of which the char ged crime(s) arose; or (4) adequately describe the event s leading up to the charged cr ime(s)." Ballard v. State, 66 So. 3d 912, 918 (Fla. 2011) (citing Dorsett v. State, 944 So. 2d 1207 (Fla. 3d DCA 2006)). Evidence is also in extricably intertwined if it is necessary for the State "to present an orderly, intelligible case." Tumulty v. State, 489 So. 2d 150, 153 (Fla. 4th DCA 1986). "It is admissible . . . because 'it is a relevant a nd inseparable part of the act which is in issue. . . . [I]t i s necessary to admit the eviden ce to adequately describe the deed.' " Griffin v. State, 639 So. 2d 966, 968 (Fla. 1994) (qu oting Charles W. Ehrhardt, Florida Evidence § 404.17 (1993 ed.)). Here, however, nothing about the evidence of Kevin and William 's prior violent disputes was necessary to adequately describe Diane's m urder or the context out of which it arose, and the St ate in no way needed that evid ence to adequately describe relevant events leading up to the murder or to present an orderly and intelligible account of the crim e. Whether Kevin baited his st epfather into hitting him two weeks before Diane's murder is si mply unnecessary and wholly un connected to a determination of whether Kevin smothered Diane. Instead, that evidence amounted to nothing more than inadmissible te stimony concerning Kevin's bad character. Therefore, because the evidence of the prior violent disputes between Kevi n and William was not inextricably intertwined with t he facts of the charged offense, the trial court abused its discretion in admitting that evi dence over Kevin's objection. See Johnson v. State, 969 So. 2d 938, 949 (Fla. 2007) (noting that a trial court's "rulin g constitutes an abuse of discretion if it is based 'on an erroneous view of the law or o n a clearly erroneous- 6 - assessment of the evidence' " ( quoting Cooter & Gell v. Hartmar x Corp., 496 U.S. 384, 405 (1990))). And the improper adm ission of this evidence nece ssitates a new trial. To support the trial court's ruli ng, the State initially argue d that this issue was not properly preserved for re view because Kevin did not obj ect when the State offered the evidence during tria l, citing Correll v. State, 523 So. 2d 562, 566 (Fla. 1988). However, the State's argument i gnores the plain language of sec tion 90.104(1)(b), Florida Statutes (2012), added in 2003, which provides that whe n the court has made a definitive pretrial ruling on t he record either admitting or ex cluding evidence, "a party need not renew an objection or offer of proof to preserve a cla im of error for appeal." Here, the trial court made a defin itive pretrial ruling on the issue, thus obviating the need for Kevin to make further objec tions. And his attempt during c losing arguments to mitigate the damage caused by t he erroneous admission of this e vidence does not constitute a waiver of his time ly objection. Hence, the State' s preservation argument is

not well-taken. In the alternative, the State also urged this court to conside r whether there was a tipsy coachman 2 basis for affirming Kevin's c onviction despite the erroneous admission of this evidence. Afte r a thorough analysis of the e ntire record, we conclude that there is not. Although the disputed evidence might concei vably have been

admissible under the Williams 3 rule as evidence of a prior w rong or act, the State did not file the pretrial notice required under section 90.404(2)(d )(1). Further, the State

2 See Robertson v. State, 829 So . 2d 901, 906 n.2 (Fla. 2002) (ex plaining the origin of the tipsy coachman doctrine).

3 Williams v. State, 110 So. 2d 654 (Fla. 1959).- 7 - never argued in the trial court th at the evidence was admissibl e under the Williams rule, and in fact specifically argued t hat it did not constitute Will iams rule evidence. Therefore, this court may not u se the tipsy coachman doctrine t o affirm on this basis. See, e.g., Robertson v. State , 829 So. 2d 901, 908 (Fla. 2002) (holding that the appellate court could not use the ti psy coachman doctrine to ho ld that evidence was

admissible under the W illiams rule when the State never filed t he required Williams rule notice and never argued in the tr ial court that the evidence wa s admissible on that basis). Moreover, it appears from the tria l transcript that the State actually used the disputed evidence to impeach Kevin's grand jury testimony a nd his statements to police that everything was fi ne between him and his stepfather. However, while the State may impeach a defendant who chooses to testify just as it can impeach any other witness, impeachment on a collate ral issue through the use of e xtrinsic evidence is impermissible. See, e.g., Foste r v. State, 869 So. 2d 743, 745 (Fla. 2d DCA 2004); Lawson v. State, 651 So. 2d 713, 715 (Fla. 2d DCA 1995) ("[A] w itness' answer during

cross-examination to a nonmateria l collateral matter is conclus ive and cannot be impeached by normal means of impeac hment, including contradicto ry testimony by another witness."). The question of whether an issue is "colla teral" is answered by determining "whether the proposed testimony can be admitted int o evidence for any purpose independent of the contradi ctions." Lawson, 651 So. 2d at 715. Here, testimony from various witnesses on the issue of whether Kevin and William had prior violent disputes could not be admitted in the trial on Diane's murder for any purpose other than to impeach Kevin's st atements. Therefore, the issue was purely collateral,- 8 - and extrinsic evidence of the pr ior violent disputes between Ke vin and William was simply inadmissible. Hence, we may not affirm on this basis ei ther. Finally, the State contends tha t any error in admitting the ev idence was harmless. We disagree. There we re three people in the home at the time of the murder—William, Kevin, and Dia ne. Diane was strangled and smot hered by either

William or Kevin. Each blamed the other. William contradicted himself in his various statements to law enforcement, a s did Kevin. And the physical evidence did not rule out either as the perpetrator. Hence, the jury was given the choic e to believe one of two impeached witnesses—ei ther William or Kevin. Under these circu mstances, we cannot say that there is no reasonable possibility that the erroneous admission of this evidence contributed to the conviction. S ee State v. DiGuilio, 491 So. 2d 1129, 1138 (Fla. 1986). Therefore, because the evidence was improperly admitted and bec ause this court cannot say that its improper admi ssion was harmless, we reverse Kevin's conviction and remand for a new trial. Our reversal of Kevin's murder conviction also requires us to reverse the revocation of his probation. The order of revocation finds Kev in to be in violation of both condition 5, based on his convic tion for Diane's murder, and co ndition 7, based on a positive drug test. Because i t is unclear from the record whet her the trial court would have revoked Kevin's probation ba sed solely on the violation of condition 7, we must reverse the order revoking Kevi n's probation. On remand, the t rial court should

reconsider whether to revoke Ke vin's probation in light of the reversal of his murder conviction and, if so, the appropr iate sentence to be imposed.- 9 - Reversed and remanded with directions.

ALTENBERND and LaRO SE, JJ., Concur.