The admissibility of weapons not used in the crime charged.

• Author: Melear, Melynda
• Position: Florida

In many prosecutions in which weapons have been used to commit charged offenses, the State seeks to introduce into evidence weapons not actually used in the crime but purportedly related either to the charged crime or to the credibility of a witness. For years, courts have struggled with the issue of whether the State has established the relevancy of a weapon not used in the crime underlying the case at hand as well as whether the admission of a weapon under those circumstances would cause unfair prejudice to the defendant. Case law on the relevancy of weapon evidence presents a myriad of opinions with fine and detailed distinctions in reasoning and conclusions. Not too long ago, Florida's high court weighed in on the issue in a decision that set out the considerations that a trial court must make before admitting weapons not used in the charged crime. This article discusses that opinion and compares past and subsequent cases to its parameters.

In Agatheas v. State, (1) the Florida Supreme Court considered whether the admission of a gun recovered from a backpack in the defendant's possession five years after the charged murder had any connection to the crime. Citing to Jackson v. State, (2) the court stated that it had "previously held that in order for evidence of a firearm to be admissible ... [at] trial, 'the State must show a sufficient link between the [firearm] and charged crime.'" (3) The court stressed that before the trial court considers the prejudicial effect of weapon evidence under Florida Statutes section 90.403, (4) the trial court first must address whether the evidence is even relevant, to cither the crime or to a witness's credibility. (5) The court determined that the gun that was discovered five years after the crime, which had a different caliber than the bullet casings found at the scene, was in no way related to the murder, pointing in part to the "significant time difference." (6) The court also decided that it was not relevant to corroborate the testimony of the State's witness, the defendant's former girlfriend, who testified that the defendant told her that he had murdered the victim while the defendant and the witness were watching a news airing about the murder, and who testified that the backpack in which the defendant kept his gun was missing on the night of the murder. (7) The court emphasized that the gun did not relate to any matters on which the witness was impeached or to any issues raised on redirect. The court then stated that the simple fact that the witness was impeached by the defense did not open the door to evidence of the gun. (8)

The court in Agatheas declared that the district court of appeal had failed to conduct the balancing test under Florida Statutes section 90.403, to determine whether evidence should be excluded because "its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence." (9) It first stated that the only relevancy of the evidence in Agatheas was to demonstrate the defendant's bad character or propensity, and then it deemed the evidence confusing to the jury since the gun had no connection with the murder and was not introduced until a full day after the witness's testimony. (10) The court held that the admission of the gun into evidence, as well as the admission of photographs and testimony regarding the weapon was "unquestionably error." (11)

1. RELEVANCY--THE LINK BETWEEN THE WEAPON AND CHARGED CRIME

   1. SUFFICIENT LINK

      Prior to Agatheas, courts admitted evidence of weapons not shown to have been used in the charged crimes for no reason other than that they highlighted some aspect of the defendant's association with the victim or the charged offense. The State might have established a link to the crime by showing that the defendant had access to the weapons or had understanding of how they operate. Presumably, these cases withstand scrutiny under Agatheas in light of the Agatheas court's direction that admissibility is premised in part on the connection to the charged crime. (12)

      Notably, in Irizarry v. State, weapon evidence was admitted to show the defendant's penchant for a particular type of weapon. (13) In Irizarry, the defendant was charged with first-degree murder of his former wife and attempted first-degree murder of his former wife's lover, who awoke one night from a blow to his head. The victim testified that he saw someone leaving the bedroom carrying a machete, and then looked down to find his lover, who had sustained five slash wounds, lying unresponsive on the floor. (14) The defendant told the police when he was questioned as a possible suspect that he would have "cut off his head before he would cut off hers ... even though the police had only informed him of his former-wife's death and had not told him about how she died. (15) "The police never located the murder weapon, but they did obtain two machetes connected with the [defendant]...." (16) The defendant said he gave one of the machetes to his former-wife and he left the other machete at his stepdaughter's house after cutting the weeds. (17) The Court found no error in allowing the State to admit into evidence the two machetes, neither of which were shown to be the murder weapon, based on the testimony that the defendant "favored machetes as tools and weapons." (18)

      In a more recent case, Monestime v. State, (19) the defendant was charged with trafficking cocaine and money laundering. The detective testified he followed the defendant and watched him transfer a black bag and speaker box from his vehicle into a house. (20) He approached the defendant and noticed the zipper of the bag was open, revealing bundles of U.S currency. When the drug-sniffing police dog arrived at the scene, the dog alerted to a t-shirt wrapped around a baggie, which contained cocaine, and also alerted to a speaker box, which contained an AR-15 rifle. (21) The court determined that the trial court did not abuse its discretion in allowing a photograph of the AR-15 rifle into evidence. (22) It concluded the rifle "was inextricably intertwined with the crimes charged" because it provided a context out of which the crimes arose. (23)

      Of course, evidence of weapons other than those used in the commission of the crime may be admitted if it tends to prove the identity of the perpetrator. Under this basis for admission, the link to the crime is the tendency of the evidence to show that the defendant is more likely than not to be the perpetrator. In Harris v. State, (24) for example, the defendant and two other co-defendants were charged with first-degree murder after the victim was shot during a fight between the parties at a restaurant. Three .38-caliber pistol balls, removed from the victim by the medical examiner, were offered into evidence. (25) Shortly after the brawl and shooting, law enforcement found a .38-caliber pistol, still warm and appearing to have been recently fired, in the defendant's abandoned vehicle. At trial, the defendant objected to the admission of two other pistols, a .44-caliber, and a .45-caliber. (26) The court held that even though none of the guns were shown to be the one actually used in the crime, the fact that there was only one .38-caliber found amongst the three co-defendants, coupled with the testimony that the wounds could not have been made by a .44- or .45-caliber gun, rendered the other guns probative in establishing the guilt of the defendant. (27)

      Similarly, in Dowell v. State (28) a case involving the armed robbery and murder of a real estate agent in a house that she was showing, the...