Filing # 118534825 E-Filed 12/21/2020 11:33:22 AM IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT OF FLORIDA DENISE WILLIAMS, Appellant, v. Case No. 1D19-0498 STATE OF FLORIDA, Appellee. STATE’S MOTION FOR REHEARING AND REHEARING EN BANC Following this Court’s November 25, 2020 opinion in this case, pursuant to Florida Rules of Appellate Procedure 9.330 and 9.331(d), the Appellee, the State of Florida, moves the panel to rehear this case, or alternatively, for this Court to rehear this case en banc for three reasons. First, this Court reversed on a legal theory not argued by Appellant, which did not allow the State, or even Appellant, to make an argument regarding this issue. RECEIVED, 12/21/2020 11:34:28 AM, Clerk, First District Court of Appeal Second, this Court departed from over sixty years of Florida precedent when it interpreted an unambiguous statute in a manner that modifies its express terms. In so doing, this Court encroached upon the legislature’s power to define crimes by reviving common law requirements that the statute abandoned. Furthermore, this case is of exceptional importance because it is inconsistent with other cases where this Court has applied the principal statute, thereby creating confusion among the trial attorneys and judges who must apply the principal statute. Moreover, this decision affects all cases in which one or more of the participants play “minor” roles, participate only in the planning of the crime, or were not present during the commission of the crime. Third, this Court overlooked evidence that supported a conviction for murder as a principal and, inappropriately, reweighed the evidence. Factual Background A jury found Appellant guilty of first-degree murder and conspiracy to commit first-degree murder, both in connection with the December 2000 death of her husband, Mike Williams. (R. 1046).1 The thrust of the allegations was that Appellant and Brian Winchester engaged in an extramarital affair and plotted to murder Mike so that they could finally be together and collect the money from his life insurance policies. (TT. 43-48). Winchester confessed to murdering Mike and implicated Appellant as a co-conspirator to the murder. Viewed in the light most favorable to the State, the evidence at trial showed that in October 1997, Appellant and Winchester began an extramarital affair. (T. 1 The jury also found Appellant guilty of being an accessory after the fact, but the trial court vacated that charge before sentencing because it was legally incompatible with the charge of being a principal to the murder. 2 202). The more Appellant and Winchester spent time together, the more they wanted to be together. (TT. 211-12). However, Appellant refused to get a divorce. (TT. 212, 214). Over the course of the year to a year and a half prior to the murder, Appellant and Winchester conspired to murder Mike and discussed alternative methods of committing the murder. During those discussions, Appellant “squashed plans that she thought were too risky.” Williams v. State, No. 1D19-498, 2020 WL 6936066, at *8 (Fla. 1st DCA November 25, 2020). Eventually, Appellant and Winchester decided that Winchester would murder Mike during a hunting trip and stage it to look like a drowning accident. (T. 214). The night before the murder was planned, Appellant got “cold feet” and cancelled the trip (T. 219). However, during subsequent conversations the following week, Winchester told Appellant that he did not want to move forward with the murder if Appellant was not in agreement, and Appellant reaffirmed her agreement. (T. 220). Unlike the previous week, where Appellant cancelled the hunting trip, on December 16, 2000, Mike went on the hunting trip with Winchester without objection from Appellant despite having plans for a romantic getaway to celebrate his wedding anniversary with Appellant. (TT. 224-25). After Winchester and Mike arrived at Lake Seminole, Winchester pushed Mike into the water and shot him in the head with a gun . (TT. 227-28). More than a decade after the murder and during 3 a recorded phone call, Winchester’s former wife, Kathy Thomas, twice accused Appellant of being involved in the planning of Mike’s murder. In both instances, Appellant failed to deny her involvement. (TT. 573, 580-81). Appellant appealed her conspiracy and murder convictions to this Court. In its November 25, 2020 opinion, the Court affirmed on all issues raised except for the sufficiency of the evidence to support the conviction for first-degree murder. This Court examined the terms used to describe principal liability under section 777.011, Florida Statutes, and looked to the common law to determine their meaning. Williams, 2020 WL 6936066 at *4-8. According to the Court’s interpretation of the statute, a conviction under a principal theory requires the State to prove that a defendant was one of three things: (1) an accessory before the fact, as that term was understood at common law, (2) a principal in the second degree, as that term was understood at common law, or (3) a principal in the first degree, as that term was understood at common law. Id. at 6. Although this Court rejected Appellant’s contention that section 777.011 requires a physical act, this Court reversed Appellant’s murder conviction because it concluded that nothing Appellant said or did satisfied the requirements of accessory before the fact or principal in the second degree at common law. Id. at 7- 8. Also inconsistently, this Court recognized the principal statute did not require Appellant’s presence, but then concluded that reversal was required because none of 4 the evidence showed that Appellant assisted Winchester in the commission of the murder “in real time.” Id. at 7. MOTION FOR REHEARING A. This Court Reversed Based on a Legal Theory Not Advanced By Appellant and Revived Common Law Requirements the Legislature Abandoned. Rehearing is appropriate because this Court reversed Appellant’s conviction for first-degree murder based on a legal theory she did not advance during briefing. Appellant raised three arguments during briefing: (1) to be a principal to a crime, one must commit a physical act, (2) that nothing Appellant said qualified as a “verbal act,” and (3) that she did not intend to participate in the murder. (IB. 14-26). The Court rejected the physical act argument and the intent argument in its discussion of the conviction for conspiracy to commit murder but did not address the “verbal act” argument. At no time, either before the trial court or before this Court, did Appellant ever argue that the statute was ambiguous and/or that that the terms in section 777.011 should be given their common law meaning. Appellant never argued that the State had to produce evidence that her words or conduct made her a common law accessory before the fact or principal in the first or second degree. In fact, this Court appears to recognize that Appellant did not argue that courts should turn to the common law requirements when reading the statute, as this Court stated, 5 “[Appellant’s] reading of the statute, as it turns out, runs contrary to that original meaning. Nonetheless, under the original meaning of the terms, [Appellant] is correct that the State did not present sufficient evidence to support a conviction under the statute.” Williams, 2020 WL 6936066 at *4. The issue this Court reversed on was not preserved because it was never raised either to the trial court or to this Court. Appellant’s arguments had nothing to do with the common law. If an argument for judgment of acquittal is not preserved, then an Appellate court may not reverse unless the evidence failed to show that a crime was committed at all. F.B. v. State, 852 So. 2d 226, 230 (Fla. 2003) (“The second exception to the requirement that claims of insufficiency of the evidence must be preserved occurs where the evidence is insufficient to show that a crime was committed at all.”) Because the State clearly proved a crime was committed, this Court should not have reversed on unpreserved grounds which had not been argued. Rosier v. State, 276 So. 3d 403, 406 (Fla. 1st DCA 2019) (en banc) (“An appellate court is ‘not at liberty to address issues that were not raised by the parties’ …. Nor may an appellate court ‘depart from its dispassionate role and become an advocate by second guessing counsel and advancing for him theories and defenses which counsel either intentionally or unintentionally has chosen not to mention.’”) (citations omitted). In addition to not being raised by Appellant, it was inappropriate to turn to the 6 common law because the common law is not in force in areas where the Legislature has enacted a statute. § 775.01, Fla. Stat. (2005). Section 777.011 is the statute that defines what it means to be a “principal” to a crime. Because there is a statute, this Court erred when it turned to the common law. The text of section 777.011 supports the State’s position, as does related case law. The plain language of the statute provides: Whoever commits any criminal offense against the state, whether felony or misdemeanor, or aids, abets, counsels, hires, or otherwise procures such offense to be committed, is a principal in the first degree and may be charged, convicted, and punished as such, whether he or she is or is not actually or constructively present at the commission of such offense. That text does not say that conduct “aids” or “abets” a criminal offense only if such conduct takes place at the same time as the offense.