### D ISTRICT 

### C OURT 

### O F 

### A PPEAL 

### O F 

### T HE 

### S TATE 

### O F 

### F LORIDA

F OURTH D ISTRICT

SAMUEL PREVAL
, Appellant,

v.

STATE OF FLORIDA
, Appellee

.

No. 4D 18

- 2475

[ June 24, 2020 ]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County ; Dennis D. Bailey , Judge; L.T. Case No. 16

- 3899CF10A

.

Carey Haughwout, Public Defender, and Timothy Wang, Assistant Public Defender, West Palm Beach, for appellant.

Ashley Moody, Attorney General, Tallahassee, and Georgina Jimenez

Orosa, Assistant Attorney General, West Palm Beach, for appellee.

M AY
, J.

The defendant appeals his conviction and sentence for attempted murder, conspiracy to commit murder, and two counts of tampering . He makes seven arguments:

(1) The trial court erred in failing to conduct a Faretta hearing.

(2) The State committed fundamental error when it presented multiple acts of tampering with the victim.

(3) The court erred in allowing the State to introduce a redacted letter written by the defen dant.

(4) The court erred in admitting collateral crime evidence of

the d efendant’s 2014 charge of solicitation to murder the

v ictim.

(5) The court erred in denying the d efendant’s motion for judgment of acquittal on count three’s charge of tampering2 with the v ictim’s grandmother.

(6) The court erred in overruling defense counsel’s improper

burden

- shifting objection to the State’s closing argument

and denying his motion for mistrial

.

(7) The court erred in deny ing the defendant’s request to play

his jail calls during his sentencing hearing

.

We find no merit in the issues raised and affirm.

The background of this case begins in 2010 when the defendant was charged with lewd battery and molestation of his forme r girlfriend’s minor daughter (“2010 case”). While the 2010 case was pending, the defendant

sent his then

- girlfriend t o convince the v ictim not to cooperate with the prosecution. She visited the victim ’s workplace to convince her to accept a paid, furnis hed apartment in exchange for not testifying against the

d efendant. The victim did not accept the offer.

The d efendant then allegedly attempted to solicit an undercover o fficer

to murder the v ictim to prevent her from testifying. T he S tate charged the

d efendant with solicitation to commit murder and tampering with a

witness in 2014.

While t he d efendant was incarcerated on the 2014 c ase, t he 2010 case

was consolidated with the 2014 case and set for trial

. The defendant’s same girlfriend again went to visit the v ictim t o convince her not to cooperate. This time, the d efendant’s other girlfriend accompanied her. 1 They accused the v ictim of adding false charges to the 2010 case and tried to convince her to drop the case alt ogether. The v ictim again declined.

The d efendant then enlisted the help of his prior jail mate to kidnap the

v ictim to prevent her from going to a deposition. Eventually, a decision

was made to kill the v ictim. The jail mate and the defendant’s two girlfriends worked together while the defendant directed them through coded messages in his jail phone calls.

In 2015, the jail mate shot the v ictim , who was injured, but survived. A week later, the v ictim’s grandmother received a FedEx letter from th e defendant addressed to the v ictim’s father, referenc ing the v ictim and her family. The letter stated the d efendant and his family were being targeted

1 The d efendant had two girlfriends at the same time.3 because he a greed to talk to federal authorities in a tax fraud prosecution. The letter urged the v ict im’s family to either convince the State to drop the

2014 c ase or not testify so the d efendant c ould bond out and prevent

further violence.

The d etective who investigated the 2014 charges reached out to the Miami Dade Police Department to inform them that he believed the

d efendant may be involved in the v ictim’s shooting. Following an investigation of the shooting and the letter, the State charged the

d efenda nt with attempted murder, conspiracy to commit murder

, and tampering with the v ictim and her grandmother (“2016 c ase ”).

Because an integral witness in the 2010 case was in federal custody, the parties were not prepared to go trial on th e 2010/2014 case s. Th e State wanted to proceed with the 2016 case. At a hearing on th e 2016 case, newly appointed defense counsel moved to withdraw due to the complexity of the cases and his current caseload. A discussion e nsued

among defense counsel, the defendant, and the trial court

.

Th e defendant suggested his new attorney go forward on the 2016 case

, and that h e could represent himself on the 2010 and 2014 cases . He

claimed two prior defense attorneys were unable to understand th os e

cases . He suggested that he was in a better position to handle them with the assistance of an attorney to sit second chair.

After some discussion, the trial court denied defense counsel’s motion to withdraw without prejudice and deni e d the d efendant’s request to represent himself. Months later, defense counsel again moved to withdraw

based on “irreconcilable differences.” The court granted the motion and appointed new counsel to represent the d efendant.

On appeal, the defendant f irst argues the trial court erred in not conducting a Faretta hearing on his request to represent himself . We disagree. The defendant requested to represent himself on the 2010/2014 case, not the present 2016 case

.

The defendant makes six other arguments. Three involve evidentiary rulings : (1) the admission of collateral bad acts evidence ; (2) the

admission of the redacted letter ; and (3) the exclusion of jail calls during his sentencing hearing. T he three remaining issues involve the trial co urt’s denial of a motion for judgment of acquittal, its decision to overrule a defense objection to the State’s closing argument an d consequent denial

of a motion for mistrial , and whether fundamental error occurred when

the State introduce d multiple incid ents of tampering spanning the period4 of time alleged in the information. We find no merit in any of these issues

either because there was no error ; or if error occurred , it was harmless.

State v. DiGuilio , 491 So. 2d 1129, 1135 (Fla. 1986). This includ es the issue addressed by the dissent.

We therefore affirm his conviction and sentence

.

Affirmed.

C ONNER

, J., concur s

. W ARNER
, J., dissents with an opinion.

W ARNER , J., dissenting with opinion

.

While the majority’s recitation of the facts presents a compelling case for tampering with the witness, I would reverse because I conclude that the redaction of the letter received by the grandmother changed the entire meaning of the letter and severely pr ejudiced the defendant’s case against tampering, which infect ed all of the charges. The State sought, and the trial court redacted, portions of the letter in which the defendant alleged that he and his family were being targeted by other people with whom the

defendant was involved in fraud crimes. The defendant was working with

f ederal authorities against these other individuals. In the letter h e asked that the victim drop the charges against him so that he could get out on bond and protect his family an d the victim, who was also being targeted
as a way to get at the defendant . Several of the redacted statements specifically informed the victim’s family that the attacks against her were

not related to the 20 10 case. In other words, the letter, when read in full context, does not threaten the victim or her family. When taken out of context, the letter appears to be a clear threat

.

Based upon the rule of completeness, s ection 90.108 , Florida Statutes (2018) , I would reverse. In Metz v. State

, 59 So. 3d 1225, 1226

- 27 (Fla. 4th DCA 2011)

, we held that :

[a] defendant’s exculpatory out

- of

- court statement is

admissible into evidence when a state witness has testified to incriminating statements contemporaneously made by the

defendant and “ the jury should hear the remaining portions at the same time so as to avoid the potential for creating misleading impressions by taking statements out of context.”

( quoting Mason v. State , 719 So. 2d 304, 305 (Fla. 4th DCA 1998) ). Here, the remaining portions of the let ter tended to exculpate the defendant from5 any suggestion that the letter constituted a threat and amounted to tampering. The redaction of the letter should not have been allowed in this

case.

Because of this error, I would reverse as to all charges, as I cannot

conclude that the S tate has shown beyond a reasonable doubt that the redacted letter did not taint the other tampering charges and even the attempted murder and conspiracy charges.

* * *

Not final until disposition of timely filed motion for rehearing.