IN THE THIRTEENTH JUDICIAL CIRCUIT COURT FOR HILLSBOROUGH COUNTY, FLORIDA Criminal Justice and Trial Division STATE OF FLORIDA CASE NO: 17-CF-017252 v. HOWELL DONALDSON, DIVISION: TR-3 Defendant. ________________________/ ORDER ON THE NOTICE OF THE STATE’S INTENT TO INTRODUCE SIMILAR FACT EVIDENCE OF OTHER CRIMES, PURSUANT TO FLORIDA STATUTES, EVIDENCE CODE RULE 90.404(2) IN EACH SEPARATE TRIAL OF ALL COUNTS THIS MATTER is before the Court on the “Notice of the State’s Intent to Introduce Similar Fact Evidence of Other Crimes, Pursuant to Florida Statutes, Evidence Code Rule 90.404(2), in Each Separate Trial of All Counts,” filed on October 9, 2020; the “State’s Memorandum of Law in Support of the Admissibility of Similar Fact Evidence of Other Crimes (Williams Rule Evidence) and Factual Proffer of Such,” filed on November 13, 2020; and “Defendant’s Response to State’s Request to Admit Williams Rule Evidence,” filed on January 20, 2021. The Court held a hearing on the State’s notice on March 19, 2021. After reviewing the State’s notice and memorandum, Defendant’s response, the argument presented at the March 19, 2021, hearing, the court file, and the record, the Court finds as follows: Previously, the defense filed a motion to sever the four charged offenses in the instant case number. The Court orally granted Defendant’s request on October 7, 2020, and provided a written order on January 12, 2021, in which it found the instant case consisted of “similar but separate episodes that must be tried separately.” Following the Court’s oral ruling, the State filed the instant notice in which it seeks the admission of evidence of all four murders in the separate trials for each individual murder. The State provided a “factual proffer” of the similar fact evidence it contends Page 1 of 5 demonstrates a “unique pattern of criminal activity” that “establishes the relevancy of any and all of the four murders as it would pertain to any single one of the murders as to the issues of identity, preparation, plan, premeditation, absence of mistake or accident, motive, opportunity, and intent.” In response, Defendant moves the Court to deny the State’s request and contends “the offenses charged in the Indictment do not contain similarities [sufficient] to warrant” admission as Williams Rule evidence. The Court finds Section 90.404(2) provides that “evidence of other crimes, wrongs, or acts is admissible when relevant to prove a material fact in issue, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” § 90.404(2), Fla. Stat. (2017). However, such evidence is “inadmissible when the evidence is relevant solely to prove bad character or propensity.” Id. The test for the admissibility of such evidence is relevancy while the test for inadmissibility is a lack of relevancy. See Williams v. State, 110 So. 2d 654 (Fla. 1959). Based upon a review of the “factual proffer” provided by the State and the extensive argument detailing the alleged similarities between the four charged murders, the Court does not find the details surrounding the four murders to be sufficiently similar to warrant admission in each individual trial. “When the purported relevancy of [other] crimes is to identify the perpetrator of the crime being tried, [Florida courts] have required a close similarity of facts, a unique or ‘fingerprint’ type of information, for the evidence to be relevant.” State v. Savino, 567 So. 2d 892, 894 (Fla. 1990). “A mere general similarity will not render the similar facts legally relevant to show identity. There must be identifiable points of similarity which pervade the compared factual situations.” Drake v. State, 400 So. 2d 1217, 1219 (Fla. 1981). Further, the “similar facts … must have some special character or be so unusual as to point to the defendant.” Id. Page 2 of 5 Initially, the Court finds the fact that the victims were alone at the time of the murders, were unknown to Defendant and to each other, and that Defendant was able to elude capture does not constitute a “similarity” as defined by Williams Rule case law as there was no evidence presented to show the information is somehow being used to prove “proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident” with any specificity to Defendant’s case. The Court makes similar findings regarding the State’s reliance on the fact that the crimes were “committed under the cover of darkness,” while the victims were “unarmed and defenseless,” and while the victims “were on foot.” While the Court acknowledges these facts are accurate as to each of the victims, the Court does not find these “similarities” to differentiate the instant murders from practically any other homicide. The Court finds this to be especially true in light of the fact the State has elected to argue an “all or nothing” approach with regard to the instant notice by contending all four murders are equally similar to one another. While the State is welcome to take any position it pleases when requesting the admission of evidence, the Court finds, here, the significant dissimilarities among the deaths of the four victims precludes it from finding that the evidence of each murder is equally admissible in the three other respective trials. As the Court outlined in its January 12, 2021, order, while each murder was apparently committed with the same firearm, they were also committed at a different location, at a different time, on different days, and with a different number of shots being fired at different locations on each victim’s body. Based on these differences, the Court finds the State has failed to prove that the similarities that are present are relevant to prove “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Similar to the Court in Drake, the Court finds “[e]ven assuming some similarity, the similar facts offered would still fail the unusual branch of the test.” Drake, 400 So. 2d at 1219. Florida Page 3 of 5 courts have already determined that the tying of a victim’s hands behind their back and the strangling or asphyxiation of a victim are “not so unique or unusual as to point to the defendant because it occurs in many different cases involving criminal defendants in various situations.” Balzourt v. State, 75 So. 3d 830 (Fla. 2d DCA 2011). It goes without saying – unfortunately – that the use of a firearm is “not so unique or unusual” as to point to any one defendant.1 Therefore, the evidence is “irrelevant to prove identity.” Id. In making this determination, the Court recognizes the State’s repeated argument that “the standard for determining whether offenses are properly consolidated for trial is vastly different from the standard of when evidence of a second collateral crime may be introduced.” Roark v. State, 620 So. 2d 237 (Fla. 1st DCA 1993) (emphasis added). The Court notes that while the Roark court mentions this vastly different standard without citation to authority, the alleged differences in standards do not appear to have been further explained in any subsequent case law.2 Regardless, the Court finds the similarities highlighted by the State do not have “special character” or are “so unusual as to point to the defendant.” Drake, 400 So. 2d at 1219. Accordingly, the Court finds the State will not be permitted to admit the proposed Williams Rule evidence as it so requests. 1 In 2019, there were over 2,800 deaths in Florida alone due to the use of a firearm. See Centers for Disease Control and Prevention: Firearm Mortality by State, https://www.cdc.gov/nchs/pressroom/sosmap/firearm_mortality/firearm. htmgov/nchs/pressroom/sosmap/firearm_mortality/firearm.htm (last visited March 25, 2021). 2 The Court was only able to find two other cases that use the “vastly different” language as provided in Roark, but neither case explains the use or basis of this phrase. See Shermer v. State, 935 So. 2d 74 (Fla. 4th DCA 2006); see also Tatarini v. State, 84 So. 3d 1185 (Fla. 1st DCA 2012). Page 4 of 5 It is therefore ORDERED AND ADJUDGED that the “Notice of the State’s Intent to Introduce Similar Fact Evidence of Other Crimes, Pursuant to Florida Statutes, Evidence Code Rule 90.404(2), in Each Separate Trial of All Counts” has been ruled on in accordance with the order above. DONE AND ORDERED in Chambers in Hillsborough County, Florida, this25th _____ day of __________,March 2021. Electronically Conformed 3/25/2021 _______________________________________Samantha Ward SAMANTHA WARD, Circuit Judge Copies to: Dana Herce-Fulgueira, Assistant Public Defender Scott Harmon, Assistant State Attorney Page 5 of 5 .