Third District Court of Appeal
State of Florida
Opinion filed October 14, 2026.
Not final until disposition of timely filed motion for rehearing.
No. 3D26-1779
Lower Tribunal No. F05-29563
Henry Bernard Marshall,
Petitioner,
vs.
State of Florida,
Respondent.
A Case of Original Jurisdiction – Habeas Corpus.
Henry Bernard Marshall, in proper person.
James Uthmeier, Attorney General, and Jason Michael Ross,
Assistant Attorney General, for respondent.
Before MILLER, GOODEN, and REBULL, JJ.
MILLER, J.
Petitioner, Henry Bernard Marshall, an incarcerated prisoner serving a
sentence for armed robbery, seeks a writ of habeas corpus. Distilled to its
essence, his claim rests on the assertion that the affirmance of his direct
appeal constitutes a manifest injustice. Marshall specifically contends that
this court violated his Sixth Amendment rights by placing its imprimatur on
the admission of a recording of the victim’s 911 call at trial because the
recording contained testimonial statements and the victim was not subject to
cross-examination.1
Marshall was tried before a jury and convicted of armed robbery. He
timely filed a direct appeal, challenging the propriety of the trial court’s order
admitting the recording. He contended the recording contained testimonial
statements and, because the victim was not subject to cross-examination,
its admission violated the Confrontation Clause.
This court affirmed. See Marshall v. State, 45 So. 3d 470 (Fla. 3d DCA
2010). The panel cited United States v. Proctor, 505 F.3d 366 (5th Cir.
2007), for the proposition that, in the face of an ongoing emergency, a 911
call is not testimonial and therefore does not implicate the Confrontation
Clause.
1
The pretrial transcripts reflect that the victim was murdered after his deposition but before trial. To prevent any potential for prejudice, the jury was informed only that he had passed away.
2
Proctor was decided in the aftermath of the Supreme Court’s landmark
Sixth Amendment decisions in Crawford v. Washington, 541 U.S. 36 (2004),
and Davis v. Washington, 547 U.S. 813 (2006), an era rife with struggle over
distinguishing testimonial from nontestimonial statements. Crawford held
that the Confrontation Clause prohibits the “admission of testimonial
statements of a witness who did not appear at trial unless he was unavailable
to testify, and the defendant had had a prior opportunity for cross
examination.” Id. 541 U.S. at 53–54. Davis held that “[s]tatements are
nontestimonial when made in the course of police interrogation under
circumstances objectively indicating that the primary purpose of the
interrogation is to enable police assistance to meet an ongoing emergency.”
547 U.S. at 822. In contrast, statements “are testimonial when the
circumstances objectively indicate that there is no such ongoing emergency,
and that the primary purpose of the interrogation is to establish or prove past
events potentially relevant to later criminal prosecution.” Id. at 822.
As the Supreme Court observed in Davis, a 911 recording “is ordinarily
not designed primarily to ‘establish or prove’ some past fact, but to describe
current circumstances requiring police assistance.” Id. at 827 (citation
modified). Even so, the conversation has the potential to “‘evolve into
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testimonial statements’ once that purpose has been achieved.” Id. at 828
(quoting Hammon v. State, 829 N.E.2d 444, 457 (Ind. 2005)).
In Marshall’s direct appeal, Judge Shepherd dissented from the
majority opinion. He reasoned that the 911 recording was testimonial
because any existing exigency had dissipated because the robbery was
complete. See Marshall, 45 So. 3d at 474–75 (Shepherd, J., dissenting). In
so doing, he analogized the facts to a similar case where the court concluded
a 911 call was testimonial because “there was no ongoing emergency at the
time [the officer] interviewed [the victim]. [The officer] was simply
interviewing the victim of a crime to ascertain the facts necessary to establish
criminal activity, assist in further investigation, and further a possible future
prosecution.” Id. (quoting Paraison v. State, 980 So. 2d 1134, 1136 (Fla. 3d
DCA 2008)).
Marshall moved for rehearing en banc. This court denied his motion,
but four judges dissented from the denial, questioning whether there was an
ongoing emergency during the 911 call. Judge Cope specially concurred,
noting that Marshall and his cohort “took the victim’s wallet, which had his
address, and his house and car keys” and therefore “there was an ongoing
risk that the perpetrators would go to the victim’s house and use the keys to
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gain entry, or return to hijack the car.” Id. at 476 (Cope, J., specially
concurring).
We are ordinarily bound by the law of the case to abide by our prior
decisions. That said, as Marshall correctly posits, this general rule is not
absolute. As the Second District Court of Appeal explained in Gorman v.
State,
“[T]he doctrine is not an absolute mandate, but rather a selfimposed restraint that courts abide by to promote finality and
efficiency in the judicial process and prevent relitigation of the
same issue in a case.” State v. Owen, 696 So. 2d 715, 720 (Fla.
1997). We have “the power to reconsider and correct erroneous
rulings in exceptional circumstances and where reliance on the
previous decision would result in manifest injustice.” Id.; see also
Strazzulla v. Hendrick, 177 So. 2d 1, 5 (Fla. 1965) (explaining
that an appellate court has the power to reconsider and correct
an erroneous ruling that has become law of the case).
Id. 253 So. 3d 740, 742 (Fla. 2d DCA 2018). The Florida Supreme Court
similarly stated in Strazzulla,
We think it should be made clear, however, that an appellate
court should reconsider a point of law previously decided on a
former appeal only as a matter of grace, and not as a matter of
right; and that an exception to the general rule binding the parties
to “the law of the case” at the retrial and at all subsequent
proceedings should not be made except in unusual
circumstances and for the most cogent reasons—and always, of
course, only where “manifest injustice” will result from a strict and
rigid adherence to the rule. Beverly Beach Properties v. Nelson,
[68 So. 2d 604, 608 (Fla. 1953)].
5
177 So. 2d at 4. The court clarified that “the exception to the rule should
never be allowed when it would amount to nothing more than a second
appeal on a question determined on the first appeal.” Id.
Here, Marshall contends, consistent with prior collateral attacks on his
conviction and sentence,2 that the victim admitted in his deposition to
recovering his house and car keys right after the robbery, thereby dispelling
any ongoing emergency. This allegation falls short of establishing manifest
injustice on this record.
A careful review of the petition and historical filings reveals that the
keys were only retrieved after they were discarded by the perpetrators during
fresh pursuit. The victim had not yet recovered his keys when he spoke with
the 911 operator. And as Judge Cope cogently explained in his special
concurrence, the victim’s wallet, which contained identification reflecting his
home address, was also seized during the robbery. Marshall, 45 So. 3d at
476. These facts are sufficient to dispel the contention that there was no
ongoing emergency.
2
Marshall v. Fla., 563 U.S. 1035 (2011); Marshall v. State, 81 So. 3d 415 (Fla. 2012); Marshall v. State, 108 So. 3d 1102 (Fla. 3d DCA 2013); Marshall v. Fla. Dept. of Corr., No. 1:13-cv-21709-JAL, Dkt. No. 11 (S.D. Fla. Nov. 5, 2013); Marshall v. State, 139 So. 3d 311 (Fla. 3d DCA 2014); Marshall v. State, 156 So. 3d 1099 (Fla. 3d DCA 2015); Marshall v. State, 429 So. 3d 1012 (Fla. 3d DCA 2016); Marshall v. State, 299 So. 3d 1050 (Fla. 3d DCA 2020).
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Though sagacious minds may differ, and did indeed differ, as to the
correct application of the law to the facts in the direct appeal, Marshall has
failed to demonstrate that the panel’s affirmance of his conviction was
infected by the type of egregious error that rises to the level of manifest
injustice. Accordingly, we deny the petition.
Petition denied.
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