# Supreme Court of Florid a

____________ No. SC18

- 1629

____________ PETER AVSENEW, Appellant,

vs. STATE OF FLORIDA, Appellee. January 13, 2022
PER CURIAM. Peter Avsenew appeals his judgments of conviction of first

degree murder and sentences of death. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. As we explain below , we reverse Avsenew’s convictions and sentences, and we remand this case to the circuit court for a new trial.
BACKGROUND
Avsenew was convict ed of and sentenced to death for the 2010 first

- degree murders of Steven Adams and Kevin Powell

. The State presented e vidence at trial that in the early morning hours of- 2

- December 2 6 , 2010 , the bodies of Adams and Powell were found at their Wilton Manors home after a concerned family member requested that law enforcement conduct a welfare check at the home

. Both victim s sustained multiple gunshot wounds and blunt force trauma. There were no signs of forced entry at the home, and no fingerprints were found. A bottle of bleach was found on a table near the victims’ bodies. T he victims’ wallets , credit cards , and black Saturn SUV were missing. No murder weapon s w ere ever found. Avsenew was identified as a person of interest in the murders after documents bearing his name were found inside the victims’ ho m e . The murder investigation further reveal ed that Avsenew knew the victims and had moved into their home shortly before the

mu rders

. The defense argued that Avsenew did not commit the murders , rather that he came home sometime afte r the murders , found the deceased victims, took their belongings , and left the scen e . However, the defense theory was contradicted by the State’s evidence, particularly the perpetuated testimony of a material
witness

— Avsenew’s mother, Jeanne Avsenew

. Ms. Avsenew ’s- 3

- testimony describ ed multiple incriminating statements made and
actions taken b y Avsenew s hortly after the murder s . Although Avsenew raise s twelve issues i n this direct appeal , we address the sole determinative issue

. Th e perpetuated testimony of Ms. Avsenew, which was conducted despite her inability to see Avsenew during her testimony, violated the requirements of rule 3.190(i)(3), Florida Rules of Criminal Procedure

. Because this rule violation was not harmless error, we must reverse Avsenew’s convictions and sentences and remand this case to the circuit court for a new trial.
ANALYSIS The P erpetuated T estimony of Ms. Avsenew
D ue to serious health problems that rendered her unable to travel to Broward County to testify at Avsenew’s trial , the trial court granted the State’s motion to perpetuate the testimony of
Ms. Avsenew pursuant to rule 3. 190 (i) , Florida Rules of Criminal Procedure

. At the time of the perpetuated testimony in August 2017 , Ms. Avsenew was located in Polk County. Avsenew, defense counsel, the prosecutor, and the judge were in a Broward County- 4

- court room. The two locations were connected remotely by audio

visual equipment

. Ms. Avsenew’s testimony was recorded on video , and the video of her testimony was played for the jury at Avsenew’s trial in November 2017

. Ms. Avsenew testified that a round 4:30 p.m. on the afternoon of December 25, 2010, Avsenew unexpectedly called her and said that he was on his way to visit her at her home in Polk County. Prior to that time, Ms. Avsenew had not seen Avsenew since September 2010, when she visited him in B roward County, and he had never visited her at her home in Polk County. Avsenew lodged
at Ms. Avsenew ’s home from the evening of December 25 until December 27 , when he was arrested for the murders

. About 6:30 p.m. on December 25, Avsenew arrived at
Ms. A vsenew ’s home. Avsenew was accompanied by his dog, and he was driving a black Saturn SUV that he initially said he borrowed from a friend. At the time, Avsenew’s brother was also at the home celebrating the Christmas holiday. Avsenew entered the home ca rrying a backpack and a duffle bag. He later returned to the SUV to retrieve a tent and other- 5

- camping supplies, and he explained that he was going to travel to the Appalachian Mountains to camp.
Avsenew initially said that he left South Florida after his dog killed another dog , but he later said that he had done something bad and had gotten into trouble in South Florida. He suggested that what he had done was violent , that it was the worst thing he had ever done, and that if he got caught, he would not be able to get out of trouble. Avsenew also asked about his biological father and inquired whether his father was a violent person.
Avsenew also mentioned that he had a gun, and Ms. Avsenew got upset and told him that he needed to get rid of it. Avsenew later told her that he had gotten rid of the gun by throwing it into a lake. 1
Avsenew also explained that he was very tired and had not slept in three days. Ms. Avsenew suggested that tak ing a shower would make him feel better. Avsenew took a shower, after which he commented that it felt good to get rid of the smell of bleach.
Ms. Avsenew testified that she never smelled bleach on Avsenew,

1

. The State presented testimony that a dive team searched a nearby lake for a gun, but the search was unsuccessful.- 6

- and Avsenew did not explain his comment. Avsene w also displayed a bruise on his leg and said that he was injured in a fight with “some guy.” On December 26 and 27, Avsenew went to two Walmart stores in Polk County and purchased multiple items , including camping supplies and gift cards. Avsenew told M s. Avsenew that he was able to buy the items because a friend loaned him money. However, the State presented evidence that these purchases were made using the victims’ credit cards.
Ms. Avsenew testified that Avsenew us ed her computer to conduct internet searches and that he became increasingly anxious as he did so

. Avsenew told her that he had been searching for information on campgrounds. On December 27, Avsenew said that he had to leave the state for six months, and he an d Ms. Avsenew called family members to see if Avsenew could stay with any of them. Also on December 27, Avsenew said that he had to get rid of the SUV that he drove to Ms. Avsenew’s home

. Avsenew admitted that the SUV was stolen and that he lied about how he obtained it.
Ms. Avsenew testified that she followed Avsenew in her car to a- 7

- nearby Walmart , where Avsenew abandoned the SUV in the parking lot. 2 Ms. Avsenew recalled that she expressed concern about being involved in what ever Avsenew was a part of and that Avsenew tried to reassure her by telling her that the parking lot surveillance cameras were not facing their direction. They le ft the parking lot and returned to Ms. Avsenew ’s home , where, u pon arrival,
Ms. Avsenew asked Av senew to go to her bedroom and calm his dog. While Avsenew was in the bedroom , Ms. Avsenew logged onto her computer to see if she could determine the content of Avsenew’s internet searches. Her search revealed that Avsenew was a person of interest in a h omicide investigation in Wilton Manors.
Ms. Avsenew immediately left her home, went to a friend’s house, and told the friend what she learned. The friend advised
Ms. Avsenew to contact the police and assisted her in doing so.

2

. The State introduced evidence that the SUV retrieved from the parking lot was the victims ’ missing vehicle

.- 8

- Ms. Avsenew then returned t o an area near her home while the police went to the home and took Avsenew into custody without incident. 3 Rule 3.190(i) Motion to Take Deposition to Perpetuate Testimony Our analysis is guided by rule 3.190(i), the Florida Rule of Criminal Procedure governing the perpetuated testimony of Ms.
Avsenew. Under rule 3.190(i) (1) , upon motion of the State or the defendant, the trial court may permit a witness to perpetuate trial testimony via deposition if “a prospective w itness resides beyond the territorial jurisdiction of the court or may be unable to attend or be prevented from attending a trial or hearing.” Fla. R. Crim. P. 3.190(i)(1). The court must also find “that the witness’s testimony is material, and that it i s necessary to take the deposition to prevent a failure of justice.” Id.
Here , the trial court did not abuse its discretion when it permitted the perpetuated testimony of Ms. Avsenew pursuant to rule 3.190 (i)

. Moreover, in this appeal, Avsenew does not base his

3

. Following Avsenew’s arrest, Ms. Avsenew consented to a search of her home. The search yielded multiple pieces of physical evidence that were entered into evidence at trial.- 9

- challenge on the fact that the deposition was conducted remotely and using video technology, rather than in his physical presence. Rather, Avsenew’s argument, and therefore o ur focus , centers on the format of the testimony which , due to the setup of the audio

visual equipment, prevented Ms. Avsenew from seeing Avsenew while she testified and thus violated rule 3.190(i)(3) , which provides in relevant part: (3) If the deposition is taken on the application of the s tate, the defendant and the defendant ’ s attorney shall be given reasonable notice of the time and place set for the deposition. The officer having custody of the defendant shall be notified of the time and place and shall produce the defendant at the examination and keep the defendant in the presence of the witness during the examination

. (Emphasis added.) In light of the rule’s requirement that the defendant be in the witness’s “presence,” c ompliance with this rule requir es that the defendant and the testifying witness be able to see

e ach o ther during the examination . However, the record conclusively establishes that Ms. Avsenew was unable to see
Avsenew. At the beginning of the hearing during which Ms. Avsenew’s perpetuated testimony occurred, the trial court asked her: “ Can you- 10

- see us her e in the courtroom? ” Ms. Avsenew answered that she could see in the courtroom, but the trial court never confirmed that she could see Avsenew. Immediately before Ms. Avsenew’s testimony began, defense counsel objected that Ms. Avsenew was unable to see Avsenew: Defense Counsel:

. . . But I would renew the objection that while s he ’ s testifying, she ’ s looking at the podium and not at our client as if she were in the courtroom. And the right to confrontation of my client to the material witness is defi nitely limited very much so in the perpetuation. And I ’ d just like to renew the objections made previously. The Court: Anything new from The State?
Prosecutor: No, Your Honor. The Court: The Court maintains its prior rulings and the reasons stated on t he record for The Court allowing the perpetuation of the testimony in this case. And, Counsel, if yo u were listening, The Court ’ s first question was could she see us here in the courtroom, and if she could hear. So your client ’ s confrontation rights are p reserved. He ’ s here, she can see in the courtroom and he can certainly see her. And closed circuit television use has been sanctioned and said okay by the Supreme Court of this state, as well as the Supreme Court of the United States. So until I get a definitive ruling saying that what The Court is doing is totally unconstitutional, then the defendant ’ s 6th Amendment privilege rights are being preserved. Your objection is still overruled.

. . . Defense Counsel: Thank you, Judge. I don ’ t

—- 11

- The Court: The State may call its witness. Defense Counsel: Just for the record, I don ’ t think Ms. Avsenew is able to see

— The Court: You can ask her when you cross
- examine her. Let ’ s proceed. We ’ ve delayed these proceedings long enough, Mr. Ermine. You may proceed.
Prosecutor: Yes, Your Honor. The State will call Ms. Jeanne Avsenew. The Court: All right. My clerk is going to swear Ms. Avsenew in. Then, a t the beginning of cross

- examination, defense counsel asked
Ms. Avsenew whether she could see Avsenew, and she st ated that she could not : Defense C ounsel: Ms. Avsenew, you can see and hear me?
Ms. Avsenew: Yes , I can

. Defense C ounsel: Can you see your so n, Peter?
Ms. Avsenew: No. Defense C ounsel: Just me?
Ms. Avsenew: Just you. At trial, just before the video of Ms. Avsenew’s testimony was played for the jury, defense counsel objected again that
Ms. Avsenew was unable to see Avsenew during her testim ony. The- 12

- trial court overruled defense counsel’s objection, and the trial continued with the video of Ms. Avsenew ’s testimony being published to the jury

. However, proceeding with the testimony

— despite
Ms. Avsenew’s inability to see Avsenew

— violated rule 3.190(i)(3)

. The failure to ensure that Avsenew was kept in the presence of
Ms. Avsenew during her testimony (in this case, her “virtual” presence) constituted a clear violation of rule 3.190(i)(3). Thus, the testimony of Ms. Avsenew was no t properly admitted against Avsenew at trial. Importantly, we note that the error here appears to have stemmed from sheer indifference to Ms. Avsenew’s inability
to see Avsenew . The State has not argued that there is any important state interest, public policy, or necessity of the case that required the use of a deposition format in which the witness c o uld
not see the defendant . We need not and do not address whether such circumstances could permit a deviation from the strict requirements of the rule. Cf. Harrell v. State , 709 So. 2d 1364 (Fla. 1998).- 13

- Harmless Error Analysis However, o ur analysis does not end with our conclusion that the perpetuated testimony of Ms. Avsenew violated rule 3.190(i)(3)

. We now consider whether the fact that Avsenew was not kept in the presence of Ms. Avsenew during Ms. Avsenew’s testimony constituted harmless error. Under Florida law, to establish harmless error, the State has the burden of demonstrating that there was no “reasonable possibility that the error contributed to the conviction.” State v. DiGuilio , 491 So. 2d 1129, 1135 (Fla. 1986). The harmless error test “is not a suffic iency

- of

- the

- evidence, a correct result, a not clearly wrong, a substantial evidence, a more probable than not, a clear and convincing, or even an overwhelming evidence test” but the “focus is on the effect of the error on the trier

- of

- fact.” Id. at
1139

. We conclude that the error was not harmless

. Ms. Avsenew’s testimony was material to the State’s case against Avsenew

. From Ms. Avsenew’s testimony, the jury learned that Avsenew (1) visited her unexpectedly on December 25, 2010 ; (2) initially gave conf licting statements about how he came to possess the victims’ SUV and later admitted that it was stolen ;- 14

- ( 3 ) admitted to having a gun and getting rid of it ; ( 4 ) initially gave
one account about his basis for leaving South Florida but later told
h is mother that he had done something violent, something that was the worst thing he had ever done , and that he could not get out of if he was caught ; ( 5 ) engaged his mother in making phone calls to relatives looking for a place for Avsenew to stay ; ( 6 ) possessed camping equipment when he arrived in Polk County to visit
Ms. Avsenew , discussed plans to leave Polk County and go camping in the mountains, and made additional camping equipment purchases d uring his time in Polk County ; ( 7 ) became increasingly agitated after he started conducting internet searches on
Ms. Avsenew ’s computer ; ( 8 ) stated after he arrived at
Ms. Avsenew’s home that he had not slept in three days ; ( 9 ) displayed a bruise that he s aid that he got while fight ing with “some guy” ; and ( 10 ) commented that he got rid of the smell of bleach after taking a shower

. We cannot overstate t he harmful effect of this testimony having com e from not just anyone, but defendant Avsenew’s own mother. Indeed, the jury heard a recording of a phone call placed by Avsenew while he was in jail awaiting trial , wherein he- 15

- mentioned that the “lead witness against me is my mom.” Without question, t he impact of Ms. Avsenew’s incriminating testimony on the jury would have been even greater because she is Avsenew’s mother.
T he State cannot demonst rate that there is no reasonable possibility that the testimony of Ms. Avsenew

— a material State
witness

— contributed to the jury’s guilty verdict s . In other words , the State cannot demonstrate harmless error because there is a reasonable possibility that the ma terial testimony of Ms. Avsenew contributed to the jury’s guilty verdict s . As a result, the admission of Ms. Avsenew’s testimony against Avsenew was harmful error which requires reversal.
CONCLUSION This Court does not take lightly the impact of today’s decisio n . However , the introduction of Ms. Avsenew’s testimony constituted harmful error , and we are bound to rule in a manner that remedies such error

. Consequently , we reverse Avsenew’s convictions and
sentences , and we remand this case to the circuit court for a new trial.- 16

- It is so ordered. CANADY, C.J., and POLSTON, LABARGA, LAWSON, MUÑIZ, COURIEL, and GROSSHANS, JJ., concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED. An Appeal from the Circuit Court in and for Broward County, Ilona Maxine Holmes, Judge Case No. 062011CF005061A88810 Carol Stafford Haughwout , Public Defender , and Gary Lee Caldwell , Assistant Public Defender , Fifteenth Judicial Circuit , West Palm Beach , Florida, for Appellant Ashley Moody, Attorney General, Tallahassee, Florida , and Lisa

- Marie Lerner and Leslie T. Campbell , Assistant Attorney s General , W est Palm Beach , Florida, for Appellee