COLLIER COUNTY — The defense attorney for convicted Swamp Buggy racer Amy Chesser filed a motion Monday seeking a new trial, contending the judge prevented the jury from hearing testimony from two witnesses who could have supported her claim of self-defense.
The motion for a new trial argues that Collier Circuit Judge Elizabeth Krier barred defense attorney Donald Day from introducing testimony by Brian Langford and Daniel Lavite, the ex-husband and ex-boyfriend of Eliza Masco of Naples, whom Chesser was convicted of beating. That testimony, the motion says, would have shown jurors that Masco had made similar threats, that Lavite feared her, and that Chesser knew Masco was violent.
“The exclusion of these evidentiary matters prohibited the defendant from a full and fair cross-examination and deprived the defendant of a fair trial,” says the motion, which contends the only witness to Masco’s beating was Masco, who had urged Langford, a defense witness, to alter his testimony.
“The law is clear regarding the state’s ability to cross-examine the accused,” the motion says, citing six appellate cases. “There is no logical distinction that a victim in a criminal case is in some kind of different situation regarding credibility. The credibility of any witness, in particular an alleged victim, should always be at issue. There is no ‘good’ reason an alleged victim should ever be attempting to have a witness in a criminal case alter their testimony.”
The motion asks Krier to set aside the conviction and order a new trial.
Chesser, 26, has been in the county jail since May 20, when jurors acquitted her of aggravated battery and convicted her of a lesser-and-included offense, felony battery. Chesser testified Masco threatened her and defended herself on Aug. 15, 2007, when they fought outside Masco’s gated community, Key Royal Villas in North Naples.
Masco suffered a fractured right eye socket, a broken nose, a concussion, a detached retina, broken teeth, cuts, bruises and neurological damage. The 39-year-old mother testified she’s had several operations and hasn’t been able to work as a cosmetologist.
Testimony showed that Masco’s then-boyfriend, Robert “Robbie” Daffin Jr., had challenged Langford, who was dating Chesser, to a fight that night and the women went along. Both men suffered black eyes, but declined to press charges.
Assistant State Attorney Mara Marzano, who prosecuted the case with Assistant State Attorney Deb Cunningham, declined comment because she hadn’t seen the motion. However, she said the issues had been brought up at trial and the judge ruled on them.
Chesser faces up to five years in a state prison on the third-degree felony, but has no prior criminal record and that term isn’t likely. Her sentence depends on the number of points Circuit Judge Elizabeth Krier allots to the seriousness of Masco’s lasting injuries. Chesser could face anywhere from probation to 3 years in prison. Sentencing is set for June 22.
The motion says the judge barred Day from introducing evidence that Masco texted Langford more than 100 times in the month before he was to testify in Chesser’s defense.
Masco texted Langford, now 36, the night before trial about her conversations with the prosecutor, according to the motion, which contends the texts and messages were attempts to get Langford to alter his testimony to be “more favorable” to Masco. The motion says the prosecutor objected to jurors hearing that testimony, which the judge then excluded because Day “could not prove the witness actually changed his testimony.”
Day’s motion includes Lavite’s April 5, 2005, application for a restraining order against Masco, then named Eliza Langford. In it, Lavite said she called his cellphone numerous times, “but the last three times she called she said that she was going to get me.”
“She stated that I didn’t know who I was (expletive) with and that I’d better watch my back ... and that she was going to ruin my life,” he wrote, adding that he’d called police. “I am parking my car away from work and away from my apartment because I’m afraid of her trying to find me,” he wrote. “I’m looking over my shoulder whenever I’m out and when I get home, I look through my apartment to make sure no one is waiting for me.”
Court records show Lavite was granted a temporary restraining order the next day, but a judge dismissed it eight days later. Lavite could not be reached for comment.
The motion argues that those threats are similar to the ones Chesser testified Masco made against her. Chesser had testified: “(Masco) threatened that she was going to get me, that she was going to kick my (expletive).”
Chesser testified that before she could get out of her truck, Masco charged at her, so she shoved her away and Masco may have hit her head on her truck as she fell; Masco had testified it was Chesser who charged at her, knocked her to the ground and pummeled her face.
Citing Florida’s evidence rules, argued that when the character or a character trait is an essential element of a charge, claim or defense, jurors should be allowed to hear proof of specific conduct. The motion says Chesser knew Masco was aggressive.
“In particular, she was aware of a prior incident with a boyfriend where (Masco) made threats and told him things on the phone that were consistent with the types of threats made to (Chesser),” the motion says. “The allegations from the prior incident were that Ms. Masco repeatedly called her boyfriend, saying she was going to get him.”
If Chesser were allowed to testify about her knowledge of Masco’s past threats, Day argued, it would have shown jurors she had a “reasonable apprehension.” The motion says that evidence was relevant and would have supported Chesser’s self-defense claim.
Day argued that by allowing jurors to hear testimony that Masco tried to get Langford to alter his testimony, it would have enabled him to try to impeach Masco’s testimony.
“Many other courts, including the Florida Supreme Court, have held that a criminal defendant’s attempts to have a witness alter their testimony, even attempts through third parties, is admissible,” the motion says, citing six appellate rulings.