Filing # 158739300 E-Filed 10/06/2022 04:31:50 PM

IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT

IN AND FOR HILLSBOROUGH COUNTY, FLORIDA
CRIMINAL JUSTICE DIVISION

STATE OF FLORIDA Case No. 17CF017252

v.

HOWELL DONALDSON Division: 3

DEFENDANT’S MOTION TO RE-CONSOLIDATE OFFENSES

COMES NOW the Defendant, HOWELL DONALDSON, by and through the

undersigned attorneys, pursuant to Fla.R.Crim.P. 3.151(a), and moves for Consolidation of the

four offenses charged in the Indictment filed against him and for a single trial thereon, and as

grounds for this Motion states:

1. Fla.R.Crim.P. 3.151 (a) Consolidation of Related Offenses provides that for

purposes of these rules, 2 or more offenses are related offenses if they are triable in the same

court and are based on the same act or transaction or on 2 or more connected acts or transactions.

2. Fla.R.Crim.P. 3.152 (a) (1) Severance of Offenses provides that in case 2 or

more offenses are improperly charged in a single indictment or information, the defendant shall

have a right to a severance of the charges on timely motion. (2)(A) provides that the court

nevertheless shall grant a severance of charges on motion of the state or of a defendant before

trial on a showing that the severance is appropriate to promote a fair determination of the

defendant’s guilt or innocence of each offense. Since severance is a right enjoyed by the

Defendant, this right can also be waived by the Defendant if severance is no longer going to

promote a fair determination of the Defendant’s guilt or innocence as to each offense. See

Shutte v. Thompson, 82 U.S. 151, 159 (1873) (“A party may waive any provision, either of a

contract or of a statute, intended for his benefit.”); United States v. Mezzanatto, 513 U.S. 196,

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 201 (1995), (The United States Supreme Court recognized that a criminal defendant could waive

beneficial provisions of federal statutes, procedural and evidentiary rules, and even fundamental

constitutional protections.)

3. The state charged Howell Donaldson with four counts of First-Degree Murder in a

single Indictment. On June 1, 2020, Mr. Donaldson moved to sever the four offenses in order to

obtain a fair jury determination of his guilt or innocence as to each offense. The state opposed

the defense’s motion for severance arguing that these offenses constituted a “crime spree”, the

offenses were linked in a significant way and by a meaningful relationship, and that these

offenses were inextricably intertwined. This Court entered orders (1) severing the four counts

and (2) prohibiting the state from introducing “similar fact” evidence of the three additional

homicides at each of the four trials. The state filed a Petition for Writ of Certiorari in the

Second District Court of Appeal, in which the state complained that “the order materially harms

the state by forcing it to try four different murder trials without each jury panel knowing about

the other three connected murders that occurred.” (State’s Petition for Writ of Certiorari pg. 4,

11,46). In addition to arguing that the crimes were sufficiently similar as to be admissible under

a “modus operandi” Williams Rule theory, the state also argued the “ballistics evidence clearly

linking Donaldson to the murders” as a basis for admissibility of all four homicides at each of the

four trials. (State’s Petition for Writ of Certiorari pg. 21, 2).

4. The Second District Court of Appeal disagreed with the state’s contention that the

four homicides were cross-admissible as “similar fact” evidence or on a “modus operandi”

theory. State v. Donaldson, 336 So.3d 825, 828-829 (Fla. 2nd DCA 2022). It was the state’s

alternative theory that the ballistics evidence established that Donaldson’s firearm was used in

each of the four murders which persuaded the Second District Court of Appeal that the crimes

were sufficiently linked as to make them cross-admissible. Id. at 829-830. On that basis only,

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 the state’s Petition for Certiorari was granted.

5. As recognized in State v. Conde, 743 So.2d 78 (Fla. 3rd DCA 1999), the Florida

Supreme Court’s decision in Crossley v. State, 596 So.2d 447, 449-450 (Fla. 1992), is the

“seminal case” on the subject of joinder and consolidation. The Supreme Court stated: “The

justifications for the consolidation of charges are convenience and the preservation of the court’s

valuable resources. However, practicality and efficiency cannot outweigh the Defendant’s right

to a fair trial.” Citing to State v. Vasquez, 419 So.2d 1088 (Fla. 1982). In Vasquez, the Florida

Supreme Court also observed that “the objective of fairly determining a defendant’s innocence or

guilt should have priority over other relevant considerations such as expense, efficiency, and

convenience.” Id. at 1091. See also Garcia v. State, 568 So.3d 896, 898 (Fla. 1990) (The

“primary purpose” of requiring separate trials on unconnected charges is to protect against “a

mutual contamination of each distinct charge.”)

6. Based on the District Court of Appeal’s ruling allowing evidence that Mr.

Donaldson’s firearm was used in each of the four murders, making evidence of each murder

relevant to his identity to warrant admission under section 90.404(2), Mr. Donaldson is

requesting that the trial court re-consolidate the four counts of murder and have one trial in this

case. Now that the state is no longer required to prove Mr. Donaldson’s guilt or innocence in

four separate trials without each jury panel knowing about the other three connected murders, the

underlying reason for severance no longer exists. The purpose for requesting a severance in this

case was to promote a fair determination of guilt or innocence as to each charged offense by

protecting against mutual contamination of the jury’s consideration of each distinct charge. In

light of the Second District Court of Appeal’s ruling that the ballistics evidence that Mr.

Donaldson’s gun was used in each of the four murders sufficiently connected the offenses for

purposes of admissibility, then the logical conclusion is that the ballistics evidence also

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 sufficiently connects the four murders for purposes of re-consolidation.

7. The case of State v. Conde, 743 So.3d 78 (Fla. 3rd DCA 1999) is distinguishable

from our case and is therefore, not binding on this Court. (See Mazzara v. State, 51 So.2d 480,

484 (Fla. 1st DCA 2010)). In Conde, the defendant was accused of committing six murders by

strangulation. All six murders were similar in that they occurred during a four-month period,

approximately two to three weeks apart, each victim was a prostitute who worked within a

limited area, was killed by strangulation late at night and each had engaged in sexual relations

with the defendant. Id. at 80. Additionally, the murders were similar in that each body was

found within a small radius of the defendant’s home, each in the vicinity of the Tamiami Trail

area, each was re-dressed and face down in a posed position. Id. Evidence of fibers, tire, DNA

and semen were found on the bodies. The defendant moved to sever the counts and the State

conceded. Upon a ruling that the trial court would admit the State’s Williams rule evidence of

the first five murders into the trial of the sixth murder, the defendant moved to re-consolidate.

The State objected and the trial court granted the consolidation. The State filed a Writ of

Certiorari and the Third District Court of Appeal quashed the order consolidating the offenses

and ordered separate trials. Id.

However, Conde involved “similar fact” evidence or “modus operandi” evidence, while

in the instant case, the Second District Court of Appeal expressly rejected the state’s contention

that the crimes were uniquely similar so as to be admissible on that basis. Instead, the appellate

court determined that the “connection alone” established by the ballistics evidence that

Donaldson’s firearm was used in all four murders is all that is necessary to show relevance. See

State v. Donaldson, 336 So.3d at 830. Modus operandi evidence, as in Conde, allows the trier

of fact to infer from the similarities between the crimes that the same person committed both, or

all of the crimes. On the other hand, ballistics evidence establishing that the same gun was used

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 in multiple cases is not merely a “similarity”; it provides a connection between the offenses.

See Pomeranz v. State, 703 So.2d 465, 469-470 (Fla. 1997); State v. Hicks, 258 So.3d 1039,

1047 (La. App. 5th Cir. 2018).

8. As this trial court correctly stated in its order granting severance in the instant

case, Conde contained more similarities between the victims and offenses than do the separate

offenses in this case. (See trial court order pg. 7). Similar fact evidence under Williams relies on

the premise that the cases are so unique or similar, that the same person must have committed all

of the crimes. That is not the case here. As the Second District Court of Appeal stated in

Donaldson, “This is not a typical scenario involving modus operandi where the only evidence

that the defendant committed the charged crime is its similarity to another crime of which the

defendant has already been independently established as the perpetrator. In such a scenario,

the similarity of the established crime to the charged crime must indicate a manner or method of

commission peculiar enough to suggest they were probably not committed by different people.

The fatal shootings of which Donaldson is accused occurred in somewhat close temporal and

geographic proximity to one another, and the victims all seemed similarly random insofar as

there is no known affiliation with the accused. But these pedestrian similarities are a round peg

ill-suited to the square hold of the modus operandi test, which requires unusually similar

characteristics that pervade the compared factual situations and have some special character

that indicates the same individual carried out the crimes. Here, while the State did advance a

modus operandi theory, it also advanced an alternative theory that did not rely on establishment

of a modus operandi and, as such, did not require the similarity showing necessary for a modus

operandi theory. The theory is that evidence points to Donaldson as the perpetrator-not

because he committed each homicide in similar fashion-but because they were all committed

with his firearm…Here, as in the Third District’s Williams case, the fact that the same gun was

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 used in each of the homicides makes the evidence relevant to establish Donaldson’s identity as

the perpetrator of the crimes.” See Donaldson at 829.

9. As the Second District Court of Appeal pointed out, the instant case is analogous to

Williams v. State, 992 So.2d 330, 333 (Fla. 3rd DCA 2008) in which the Third District

distinguished identity supported by a modus operandi theory and involved the exclusion of

evidence of two additional armed robberies which the defendant had committed. There, the trial

court erred when it applied the similarity requirement, reserved for determining the admissibility

of collateral crime evidence, where the State seeks to prove identity through modus operandi,

common plan, or scheme. The court held that the State was not seeking to prove identity by

modus operandi but instead sought to prove identity based on evidence that the same gun was

used in all three robberies. Id. “Because the gun used in all three robberies was shown to be

the same one, the only inquiry for the trial court to make was whether such evidence of collateral

crimes, which included both physical evidence and eyewitness testimony, was relevant to the

issue of the perpetrator’s identity—not whether the evidence revealed uniquely similar factual

situations.” Id. See also Fernandez v. State, 722 So.2d 879, 880 (Fla. 3rd DCA 1998)

(evidence of prior shooting was relevant to issues of identity and motive where same gun was

used in prior shooting and charged crime.); Parker v. State, 456 So.2d 436, 442 (Fla. 1984)

(finding no error in introduction of evidence of defendant’s admission to prior shooting as

admission was relevant to prove identification as perpetrator of charged crime where bullets

from both crimes were linked by ballistics evidence.); State v. Hicks, 258 So.3d 1039, 1047

(La.App. 5 Cir. 2018) (The counts were not mis-joined as the shootings were of the same or

similar character and the two incidents were linked in that the same 9-mm firearm was used at

both incidents.); People v. Read, 572 N.Y.S. 2d 259, 260 (N.Y. App. Div. 1991) (Finding no

error in refusing to sever counts because although no gun was recovered, the firearms examiner

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 testified that the same gun was used in both incidents, several witnesses testified that defendant

had been seen with a gun from which the bullet casings could have come, and the individuals

involved were members of the same drug ring.)

10. Re-consolidation in this case is warranted because severance no longer promotes

a fair determination of Mr. Donaldson’s guilt or innocence at to each charge. The state should

have no standing to argue to the contrary, since (1) the state chose to charge the four homicides

in a single indictment; (2) it vehemently opposed the motion for severance; (3) it asserted that the

ballistics evidence “clearly linked” Donaldson to the murders (State’s Petition for Certiorari pg.

21). If the ballistics evidence connects the four homicides sufficiently to make them cross-

admissible, then it also connects them sufficiently to permit consolidation.

11. Additionally, because the State is seeking the death penalty in this case, re-

consolidation is also necessary in light of the fact that the statutory aggravators, as well as all of

the mitigating evidence during the penalty phase of this trial would apply to all four of the

murders and the jury would be given specific instructions as to the death of each victim and an

opportunity to render four separate sentencing verdicts. See Rolling v. State, 695 So.2d 278,

296 (Fla. 1997).

WHEREFORE, the Defendant requests that Counts One, Two, Three and Four of the

Indictment be Re-Consolidated and a single trial be held in this case.

I HEREBY CERTIFY that a copy of the foregoing motion has been furnished to SCOTT

HARMON via e-mail to !mailprocessingstaff@SAO13th.com, Assistant State Attorney, Office of

the State Attorney of the Thirteenth Judicial Circuit, on this 6th day of October, 2022.

Respectfully submitted,
LAW OFFICE OF JULIANNE M. HOLT
PUBLIC DEFENDER

/s/ JULIANNE M. HOLT

Florida Bar # 0323195
7

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 holtj@pd.13.state.fl.us
Post Office Box 172910
Tampa, Florida 33672-0910
(813) 272-5980
(813) 388-4267 (fax)

Attorney for HOWELL DONALDSON

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