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Denise Williams Ruling
Denise Williams Ruling
STATE OF FLORIDA
_____________________________
No. 1D19-498
_____________________________
DENISE WILLIAMS,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
_____________________________
PER CURIAM.
I. Facts
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hunting on that day. But the night before the trip, Mike called
Brian to tell him that Denise would not let him go. Soon after,
Brian talked to Denise, and she explained that she had gotten cold
feet at the last minute. Brian recalled:
Brian and Denise met several times over the next week to discuss
what to do next. Brian testified that “it was decided again that,
yes, this is what were [sic] gonna do.”
The next week, Brian told Mike that he had a secret hunting
spot and that Mike would need to bring his waders. They met at a
parking lot and drove separate cars to Lake Seminole. Normally,
Brian and Mike would have talked on the phone during the drive
over to the lake. But Brian told Mike that his cell phone battery
was dead. Brian was concerned that if Mike called, the police later
would be able figure out from cell phone data that Brian had been
with Mike that morning.
3
loaded Mike’s body into his truck, drove home, returned to bed
with his wife to establish an alibi, and later drove to a secluded
area near his home to bury Mike’s body. Brian testified that he did
all of this on his own. Denise was not there for any of it, and she
was not on the phone with Brian while he murdered Mike or
disposed of the body. Brian later would join the search party trying
to locate Mike.
While the search for Mike continued, and nineteen days after
Mike’s disappearance, Denise filed claims for the life insurance
money. In June 2001, she petitioned for Mike’s death certificate,
which she obtained in July 2001.
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became mad and left. After that visit, Denise did not allow Cheryl
to see her granddaughter again.
Brian separated from his wife almost a year after the murder,
and they divorced in 2003. Two years later, Brian and Denise
married. They were together for seven years before they separated.
Denise filed for divorce in 2015.
5
II. Analysis
Denise argues that the trial court should have granted her
motions for judgment of acquittal on the murder and conspiracy
charges against her. For the reasons explained below, we agree
that the State failed to prove that Denise acted as a principal to
first-degree murder, and we reverse that conviction. But we hold
that the trial court properly denied the motion for judgment of
acquittal on the conspiracy charge.
6
which a statute was enacted because this may have an important
bearing on what its words were understood to mean at the time of
enactment”). Rather than simply “slicing” up the statute into
pieces and defining each word individually and abstractly, we
consider what ordinary people at the time of enactment would have
understood the terms and phrases in a statute to have been
referencing, in the particular context of the circumstances in which
those terms and phrases had been used. Id. at 1766–67 (collecting
linguistic scholarship on how the meaning of language derives
from the context in which a particular shared linguistic community
“uses words and phrases in context” (citation omitted)). Denise’s
reading of the statute, as it turns out, runs contrary to that original
meaning. Nonetheless, under the original meaning of the terms,
Denise is correct that the State did not present sufficient evidence
to support a conviction under the statute.
7
and another keeps watch or guard at some convenient distance.” 4
WILLIAM BLACKSTONE, COMMENTARIES *34 (hereinafter,
Blackstone, Commentaries); cf. Staten v. State, 519 So. 2d 622, 624
(Fla. 1988) (holding that driver who waited outside during fatal
robbery and then drove his cohorts away as planned was a
principal to the crimes). Still, if a person were not present, either
actually or constructively, then he would be an accessory, not a
principal. Cf. 4 Blackstone, Commentaries *36–37 (noting that
absence is necessary for someone to be an accessory, because
otherwise, presence would make the person a principal).
8
Blackstone, Commentaries *36–37 (explaining that a “procurer” of
a crime, who otherwise would be an accessory before the fact,
would become a principal if the person were “present” and,
ostensibly, abetting); cf. Abet, BLACK’S LAW DICTIONARY (6th ed.
1990) (“To encourage, incite, or set another on to commit a crime.”).
9
the accessory” is key to the accessory’s culpability as such). Terms
like “counsel,” “hire,” and “procure,” which Blackstone and ancient
cases routinely used together with terms like “command” and
“advise,” reflect this: An accessory before the fact would be the
instigator, the promotor, the goader, or the push behind the
crime—the one who set or keeps everything in motion.
10
Chapter 57-310, Laws of Florida, then, combined the two
degrees of principal and accessory before the fact into one principal
statute but carried forward the three distinct ways that one could
be culpable for the crime, as follows:
11
actions that could fall within the terms of the statute—including
abetting, counseling, hiring, and procuring—may be accomplished
through words alone. We again look to Garzon, where the supreme
court explained that “[i]f the law of principals applied, the jury
could in fact convict Garzon based on [the other perpetrator’s]
actions, provided Garzon had a conscious intent that the criminal
acts be done and that Garzon did or said something to aid or
encourage those acts.” 980 So. 2d at 1041 (emphasis supplied). This
court has also previously held that a principal conviction may rest
on “some act” or “some word which was intended to and which did
incite, cause, encourage, assist, or advise the other person or
persons to actually commit or attempt to commit the crime.”
Grandison v. State, 160 So. 3d 90, 93–94 (Fla. 1st DCA 2015)
(quoting Hall v. State, 100 So. 3d 288, 289 (Fla. 4th DCA 2012)).
For these reasons, we reject the argument that a defendant may
not be found guilty as a principal based solely on communications.
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second-degree murder and two counts of attempted second-degree
murder, even though she was not present during the commission
of the crimes, when she was the one that passed along the
instruction to kill the victim). While Brian characterized the
planning of the murder as “very mutual,” he also stated that he
“planned a lot of it” and that he “instigated a lot of it.” Brian never
testified about anything Denise did or said to incite or encourage
him to commit the murder. Brian’s testimony showed that Denise
mostly agreed with the idea of killing Mike. As will be discussed
further below, that evidence is relevant to the conspiracy charge.
It does not prove that Denise was the prime mover behind the
murder. Notably, Denise at one point was getting cold feet about
the idea, and Brian had to encourage her to be on board before he
would move forward.
The State contends for the first time on appeal that Denise’s
secretly paying the premium on Mike’s insurance policy was
enough to support the conviction. We reject that contention.
Denise’s act of maintaining Mike’s insurance policy did not entice
or encourage Brian to commit the crime—there was no promise to
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Brian that he would get the proceeds if he murdered Brian. Of
course, the insurance policy premiums could not have facilitated
the murder itself. It is true that under the principal statute, “[n]o
distinction is made between those who are the brains of the crime
and those who are the arms of the crime.” State v. Reid, 886 So. 2d
265, 266 (Fla. 5th DCA 2004). But the evidence presented by the
State shows that Brian was both. It was Brian who initiated the
plan to murder Mike, who did most of the planning, and who did
all of the work; and it was Brian who kept moving forward even as
Denise got “cold feet.”
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operation.” Moran, 278 So. 3d at 909 (quoting Cummings v. State,
514 So. 2d 406, 408 (Fla. 4th DCA 1987)).
15
This increased likelihood is precisely the public danger that
conspiracy statutes seek to mitigate. “[J]oint action is, generally,
more dangerous than individual action.” United States v. Mercer,
165 F.3d 1331, 1335 (11th Cir. 1999) (internal quotation and
citation omitted); see Callanan v. United States, 364 U.S. 587, 593–
94 (1961) (observing that “collective criminal agreement—
partnership in crime—presents a greater potential threat to the
public than individual delicts” and that “[c]oncerted action both
increases the likelihood that the criminal object will be
successfully attained and decreases the probability that the
individuals involved will depart from their path of criminality”).
Simply put, when it comes to crime, there is public danger in
numbers. The Third District observed as follows:
There also was evidence that Denise intended for the murder
actually to happen when she entered the agreement with Brian.
Brian testified that it was Denise’s job to make sure that Mike
went on the fateful hunting trip. Although that testimony was
insufficient evidence to show that Denise committed an act that
assisted Brian in “actually” murdering Mike at the time it
happened and support her conviction as a principal, it was
certainly enough to establish Denise’s intent to engage in
“concerted criminal activity” to support a conviction for conspiracy.
Her payment of the extra insurance premium to extend Mike’s life
insurance policy; her agreement to come up with an alibi; and her
preference for one plan over another all circumstantially showed
her intent to participate in a conspiracy and see that its objective
was accomplished.
16
Additionally, Denise’s actions after Mike’s murder provided
additional “accompanying” circumstances from which the jury
could infer her involvement in the conspiracy. She tried to use the
promise of visitation with her daughter as an incentive to stop
Cheryl’s campaign to reopen the criminal investigation into Mike’s
disappearance. And, after Brian’s arrest, Denise conveyed a
message to Brian’s father that she was “not talking.”
17
the $320 from the proceeds of the refrigerator); Tidwell v. State,
196 So. 837, 837 (Fla. 1940) (reaffirming that when defendants are
charged with two inconsistent and repugnant counts and cannot
be convicted under both, it is error to deny a timely motion to
require the State to elect between the two counts); Mayers v. State,
171 So. 824, 825 (Fla. 1936) (applying the rule to embezzlement of
stock and embezzlement of stock proceeds). But we have found no
cases applying this rule to cases involving murder and accessory
after the fact or, for that matter, to any non-theft-related crimes.
More importantly, all the cases granting a new trial after the
erroneous denial of a motion for election were decided before the
supreme court clarified that all errors, including constitutional
ones, were subject to the harmless error test in State v. DiGuilio,
491 So. 2d 1129, 1134 (Fla. 1986). Since DiGuilio, all types of error,
including the one alleged here, are now subject to a harmless error
analysis.
But that does not end our inquiry. That all types of error are
subject to harmless error analysis does not mean that per se
reversible error no longer exists. Per se reversible error is still
recognized in two situations: (1) when application of the harmless
error test will always lead to a finding that the error is harmful
and (2) when it is impossible to determine the effect of the error
without speculation. See Johnson v. State, 53 So. 3d 1003, 1007–
08 (Fla. 2010). Neither situation is present here.
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chosen to not go forward with the charge of accessory after the fact
because the evidence for both charges was nearly identical. Given
that the jury would have heard the same evidence, we conclude
that the trial court’s failure to grant Denise’s motion to compel
election was harmless beyond a reasonable doubt.
III. Conclusion
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