(As originally published with bells and whistles, Thu, May 19th 2022, 5:00 AM EDT)
WEST PALM BEACH, Fla. (CBS12) — Five important rulings are expected more than a decade after a man was shot to death during a drug sale in West Palm Beach.
The suspect has yet to go to trial and his lawyer has a list of requests for the judge, including letting his client cover facial tattoos.
West Palm Beach police said someone called about hearing gunshots and seeing a man “in a pickup truck who appeared to have been shot. A second victim was also reportedly shot,” according to the arrest report.
That happened late on Tuesday, Jan. 3, 2012.
Officers found the pickup with Jake Duchene dead in the driver’s seat. “A second victim, Zachary Wolfe, sustained a gunshot wound to his right thigh when the suspect shot into the vehicle Duchene was driving. Four 9 mm casings were recovered at the scene.”
The arrest report said earlier that day, “Jake Duchene had coordinated via cellphone to sell a quarter pound of marijuana. Duchene agreed to bring the marijuana to the buyer and called Zachary Wolfe to accompany him. Duchene and Wolfe drove to the area of Windsor Avenue and 39th Street in the city of West Palm Beach. When they arrived, they met a [man] who walked around the vehicle to the front driver’s window and met with Duchene. The suspect took a ‘sample’ of the marijuana and walked to nearby residence.”
Then, “The suspect returned with another [man] and both men walked to the front driver’s door of the truck towards Duchene. After a period of silence, [the men] brandished black firearms and began yelling at both Duchene and Wolfe. Wolfe stated the [men] began yelling give me everything, give me the dope. Wolfe handed the bag of marijuana to one of the suspects, who then walked around the front of the vehicle to Wolfe in the front passenger seat. The suspect opened the front passenger door and Duchene began to start the vehicle. Wolfe heard several gunshots and the suspects fled on foot.”
Two days later, Wolfe picked a picture of Anthony Jamal Williams, now 27, out of a lineup and told investigators he looked like a younger version of the second man dressed in all black.
Years later, on April 27, 2020, a cooperating witness confirmed details “regarding the drug deal, robbery, and murder of Jake Duchene. [That witness] confirmed that on Tuesday, January 3rd, 2012, Anthony Williams set up a drug deal over the phone to purchase a quarter pound of marijuana. A plan was established to rob the seller (Duchene) of his marijuana. Duchene was provided with directions over the phone and guided to the area of 39th Street and Windsor Avenue in the city of West Palm Beach. Once Duchene arrived in the area, he parked his truck along the curb. After initial contact was made, Anthony Williams met with Duchene and they talked through the driver’s side window while Duchene was seated in the truck. During the conversation, Duchene started his truck and [the witness] heard several gunshots. Anthony Williams fled on foot after the shooting. [The witness] positively identified Anthony Williams as the person who fatally shot Duchene and also shot Wolfe. [The witness] told investigators that Williams was in possession of a 9mm semi-automatic pistol.”
Based on that, Anthony Jamal Williams was charged with first-degree murder with a firearm, attempted first-degree murder with a firearm, and robbery with a firearm.
But Williams has had at least one run-in with the law since the shooting, a decade ago. His lawyer is asking the judge, in a document called a Motion in Limine, to decide that five pieces of testimony and evidence should not be allowed during the trial.
1. The defense doesn’t want any testimony or evidence of indirect third-party threats made to a prisoner, referred to throughout the document as “Mr. Theophile.”
That Mr. Theophile is actually Tyrie Theophile, who was indicted in the killing just a few weeks after it happened, as opposed to Williams, who wasn’t charged for eight years.
According to Williams’ lawyer, “The defense anticipates Mr. Theophile will testify that he is afraid of Mr. Williams based on an incident that occurred while he was incarcerated in the Jackson Correctional Institution.” That’s northwest of Tallahassee on the Alabama border.
“Mr. Theophile would testify sometime between 2016 and 2017 another inmate approached him. This unnamed inmate stated he was Anthony Williams’ friend and threatened to stab Mr. Theophile… Mr. Theophile for the presumes Mr. Williams initiated this threat because another inmate told him that Mr. Williams was calling multiple prison facilities to learn of Mr. Theophile’s whereabouts.”
The lawyer bases this request on statutes relating to introducing “evidence of another crime,” and case law that in the context of third-party threats, “The state must prove the threats are ‘attributable to or authorized by the defendant.’”
He also wrote, “Admitting third-party threats ‘creates a risk that a defendant will be convicted based on his apparent bad character instead of evidence concerning the offense with which he was charged.’”
Plus, “The defense does not believe the State can establish clear and convincing evidence that Mr. Williams incited or authorized the threat made by an unknown third party. The third party’s claim that Mr. Williams sent him is insufficient and based on inadmissible hearsay.”
2. The defense doesn’t want text messages or phone communications made by Mr. Theophile to Mr. Duchene.
The defense said, “The communications made by Mr. Theophile constitute admissible hearsay and should be excluded under [the law]. Moreover, the texts and phone calls do not fall under the co-conspirator exception [in the law] because a conspiracy did not exist at the time of communications… If the court determines that a conspiracy existed, and the defendant participated, the State must also establish, ‘that these statements be made during and in furtherance of a conspiracy, and (2) that independent evidence established the conspiracy before the statements are allowed.’”
More specifically, “Mr. Theophile’s prior testimony indicates that no conspiracy to commit a robbery or subsequent murder ever existed. According to Mr. Theophile, he was only communicating with Mr. Duchene on behalf of Mr. Williams to help arrange a consensual drug sale. No discussion, express or implied, occurred between Mr. Theophile and Mr. Williams that a robbery would occur until after all electronic communications had ceased.”
Further, “Mr. Theophile claims Mr. Williams told him ‘they funna get bucked,’ colloquial for they’re going to get robbed, only after Mr. Wolfe and Mr. Duchene were already present on scene. This occurred after Mr. Theophile first met Mr. Wolfe and Mr. Duchene, left the truck, and was returning to the truck with Mr. Williams.
“Consequently, the co-conspirator exception to hearsay is inapplicable to the text messages and phone conversations between Mr. Theophile and Mr. Duchene. The Court must find substantial evidence that a conspiracy existed, before admitting the Co-Conspirator’s statements. It is undisputed that a conspiracy did not exist at the time the statements were made, and therefore should be excluded by this Honorable Court.”
3. The defense wants a pretrial ruling on the parameters of cross-examination since Mr. Theophile’s confession was originally suppressed due to an involuntary waiver of his Miranda rights.
This request says, “On October 28, 2013, the Honorable Judge Miller entered an order granting Tyrie Theophile’s Motion to Suppress Statements. The court ruled, the way the police obtained a statement from Mr. Theophile ‘did not comport with a knowing, voluntary, and intelligent waiver of constitutional right’ against self-incrimination. This was based on the fact was that law enforcement did not allow Mr. Theophile to speak with his mother, despite attempts by both parties.
“The defense anticipates that the state will seek to introduce portion of Mr. Theophile’s interrogation as an effort to rehabilitate any cross-examination or argument that insinuates Mr. Theophile’s identification of Mr. Williams is a recent fabrication. In turn, the veracity of Mr. Theophile’s original statement identifying Mr. Williams may be a centerpiece of this trial.
“The defense is requesting permission in advance to cross-examine Mr. Theophile about the fact that he, by and through counsel, moved to preclude the jury in his own trial from hearing the original confession. These Defense seeks to inquire about Mr. Theophile’s thoughts and motivations behind this course of action, his assertion that the facts contained in the confession should now be accepted by the jury, and the trustworthiness of the original statement based on Judge Miller’s original ruling.”
4. The defense doesn’t want any testimony or evidence that Mr. Williams was periodically incarcerated from July 12 to May 30, 2020, on unrelated matters.
Here, the lawyer claims, “Testimony about Mr. Williams’ incarceration due uncharged crimes should be excluded based on [the law]. The Defense does not plan to present an alibi defense that Mr. Williams was incarcerated on the date of the incident, therefore the dates of incarceration unrelated to this matter have no probative value. Additionally, Mr. Theophile has had no communication or interactions with Mr. Williams while either party was in custody. This evidence is highly prejudicial and would insinuate that Mr. Williams has committed collateral crimes.
“The Defense has listed two witnesses that have only interacted with Mr. Williams while the parties were in custody at the Palm Beach County Detention Center. The interactions took place prior to the arrest and incarceration for the instant offense. If testimony about the witness’ relationship with Mr. Williams while in custody is elicited, the Defense concedes it could open the door to the specifics of the parties contact with Mr. Williams. If the Defense intends to elicit information about this subject, it will seek additional clarification from the Court when the issue is ripe.”
5. The Defense is requesting permission to apply makeup on Mr. Williams’ facial tattoos.
In this last request, they claim the judge “should permit the Defense to apply makeup to cover Mr. Williams facial tattoos. Mr. Williams has several tattoos on his face that may be perceived as gang tattoos. The tattoos include various symbols, the words outlaw, and a tattoo that resembles a firearm.”
It admits, “Generally, the State of Florida can compel the Defendant to openly display their tattoos to the jury. However, to do so, there must be a foundation laid before a demonstration of a tattoo can be admitted before the jury.” It quotes the decision in another case, “It is incumbent upon the [proponent of the evidence] to make a showing, through appropriate witnesses, that the tattoos were present at the time of the crime.”
The defense insists, “The existence of Mr. Williams’ tattoos is not relevant to any fact at issue, including identity. At the time of the offense, there is no evidence that Mr. Williams had the tattoos at issue. The eyewitness in this matter, Mr. Wolfe, did not identify defendant based on any tattoos. Moreover, Mr. Theophile’s identification of Mr. Williams is not based on his tattoos. The Defense certainly will not make any arguments or assertions that Mr. Wolfe’s identifications flawed based on the existence of Mr. Williams’ tattoos. Therefore, the jury observing the tattoos are irrelevant and should be excluded.”
The defense added, “Any probative value that may exist is substantially outweighed by the danger of unfair prejudice. This includes but is that limited to inferences from the tattoos that Mr. Williams may be in a gang, has previously been in prison, that he has previously used firearms, or that he has a propensity for violence. It is natural that the jury will infer and speculate about the significance of the tattoos. The only purpose of requiring the Defendant to display his tattoos, which did not exist on the date of the crime, would be to present a negative connotation that defendant is a criminal. Prohibiting the Defense from concealing the Defendant’s tattoos would ultimately subject the jury to a display of impermissible character evidence.”
They want to be allowed “to conceal Mr. Williams’ tattoos and exclude either party from referencing the existence of the tattoos. Such evidence is irrelevant to the charges, any remote or minimal probative value is substantially outweighed by unfair prejudice against the defendant, and the evidence is improper character evidence.”
The Motion in Limine was filed last Wednesday, May 11.
The hearing on the five requests is scheduled to take place Friday afternoon, May 20.