Opinion
No. 1D18-4509
03-12-2020
Pablo Jermaris JOHNSON, Appellant, v. STATE of Florida, Appellee.
Andy Thomas, Public Defender, and M.J. Lord, Assistant Public Defender, Tallahassee, for Appellant. Ashley Moody, Attorney General, and Amanda D. Stokes, Assistant Attorney General, Tallahassee, for Appellee.
Andy Thomas, Public Defender, and M.J. Lord, Assistant Public Defender, Tallahassee, for Appellant.
Ashley Moody, Attorney General, and Amanda D. Stokes, Assistant Attorney General, Tallahassee, for Appellee.
B.L. Thomas, J.
Appellant challenges the trial court's rulings on his motion in limine, motion for judgment of acquittal, jury instructions, and the State's remarks during closing arguments. We affirm.
Facts
Appellant was charged with one count of first-degree murder and one count of possession of a firearm by a felon. In a pretrial hearing, the defense objected to several of the State's exhibits. Defense counsel argued that the exhibits showing the path of the bullets through a neighboring apartment were irrelevant and prejudicial. The judge overruled the objections.
At trial the medical examiner testified that although she was unable to say exactly how long the victim was deceased, 5:30 a.m. was consistent with the possible time of death. The examiner described several bullet wounds to the victim's body, including the jugular, left bicep, right hand and right forearm, as well as lacerations and abrasions to the victim's legs. The victim also suffered fractured ribs as well as lacerations of the jugular vein and the upper and lower lobes of the left lung.
The cause of death was multiple gunshot wounds and excessive blood loss. The examiner was unable to testify as to the specific position the victim was in when she was shot. She testified that the gun was not pressed up to the victim and that it was probably a "distant wound." She further testified that there were wounds with a "downward" pathway. She was unable to determine whether the victim was shot while in a defensive position.
Two of Appellant's neighbors testified they heard noises between 5-5:30 a.m., which sounded like gunshots. The first witness testified that she heard what sounded like two taps on her window. After investigating the sound, she heard three gunshots. The second witness thought she heard a knock at her door, but when she went to check no one was there. After she returned to bed, she heard what she thought were three gunshots.
A clinical social worker testified that Appellant called her and said, "I really messed up and I think I am going to prison." He said he and his girlfriend had a big fight and she was not moving. Appellant said he wanted to turn himself in. The social worker called law enforcement.
Appellant's friend testified Appellant called him and sounded "like upset, you know what I'm saying? But he also sound like, you know, he's called me before when they had arguments, you know what I'm saying? It wasn't nothing special, nothing different."
The primary crime-scene investigator conducted a thorough analysis of Appellant's apartment. She collected fired cartridge casings, projectiles, fragments, and a nine-millimeter gun. She collected an aluminum can next to the bed. She also photographed blood stains in the bedroom, including a blood swipe on a pillow. She conducted a trajectory analysis and made a flight-path diagram showing that some of the bullets landed in a neighboring apartment. The defense renewed its motion in limine regarding the diagram, which was denied.
An officer performed an extraction on both the victim's and Appellant's cell phones. The officer retrieved outgoing text messages from the victim's phone after her estimated time of death. The text messages appeared to be from the victim to her mother about the victim going out of town for a couple days. The extraction from Appellant's phone showed numerous calls made on the day of the victim's death beginning at 5:28 a.m. None of the calls were to 911 or any law-enforcement agency.
The lead detective conducted a formal interview with Appellant which was played for the jury. Appellant stated that the victim came to his apartment because she was stressed and fighting with her family. She "flipped" and started taking it out on Appellant. Appellant asked her to leave when she started touching him. She hit him with something while he was in bed. Appellant told her to leave, again, and she grabbed the bag in which he kept his gun. He said, "It happened so fast. That's all I've got to say. It happened so fast."
The State rested its case. The defense moved for a judgment of acquittal as to the first-degree murder charge and the lesser included charge of second-degree murder. The motion was denied.
Appellant testified at trial that he and the victim were discussing taking a trip when he said something that upset the victim. She started "picking" at Appellant, so he told her to leave to avoid a fight. Contrary to the formal interview, Appellant testified that the victim left, he locked the door, and went to bed.
Appellant testified that he was awakened by something hitting him in the head. The room was dark so Appellant could not see very well, but he saw someone standing at the end of his bed. He said it all happened so fast, so he did not consider who the attacker was. The person had the bag containing his gun, so Appellant rushed to grab the gun and broke his finger when he hit it. Appellant and the person were fighting over the gun when it went off. At that moment, Appellant thought he was fighting for his life. Eventually Appellant got the gun and he let off shots. He did not know how many shots he let off or who he was shooting. He realized it was the victim when she came to him and said, "Pablo, I love you, Pablo Johnson, I love you." Appellant then dropped the gun, fell to the ground, and held the victim.
Appellant testified that he did not call 911 because he knew the victim was already dead, and he was scared. After sitting in his apartment for a long time, Appellant called his counselor. Appellant testified that he texted the victim's mother because he did not want her to show up at the scene and see her daughter.
The defense rested and renewed the motion for judgment of acquittal due to a lack of evidence of premeditation and a depraved mind. The trial court again denied the motion.
During the charge conference, defense counsel objected to the reading of the initial-aggressor jury instruction. The trial court overruled the objection. Defense counsel also sought a special jury instruction on the justifiable use of deadly force in second-degree murder and manslaughter. The trial court denied defense counsel's request, finding that the special instruction would be confusing to the jury.
During the State's closing arguments defense counsel made numerous objections including improper argument, facts not in evidence, incorrect statement of law, improper denigration of the defense, and appeal to sympathy. The trial court overruled most of the objections.
The jury found Appellant guilty of the lesser-included offense of second-degree murder. Appellant entered a plea to possession of a firearm by a felon. He was sentenced to life in prison for second-degree murder with a concurrent sentence of fifteen years for felony possession of a firearm.
Analysis
Appellant first argues that the trial court erred in denying his motion in limine to exclude photographs and diagrams of the bullet flight path into a neighboring apartment. The trial court's ruling on the admissibility of evidence will not be reversed absent an abuse of discretion, but that discretion is limited by statute and case law. McCray v. State , 919 So. 2d 647, 649 (Fla. 1st DCA 2006).
"Relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence." § 90.403, Fla. Stat. (2018). Photographic evidence is admissible if it is relevant to any issue required to be proven in a case. Bauldree v. State , 284 So. 2d 196, 197 (Fla. 1973). Pictures must not be "so inflammatory as to create an undue prejudice in the minds of the jury and detract them from a fair and unimpassioned consideration of the evidence." Leach v. State , 132 So. 2d 329, 332 (Fla. 1961).
The State used the photographs and diagrams to show the trajectory of the bullets and support its argument that Appellant's actions were premeditated, and he was not acting in self-defense. The photographs and diagrams were not inflammatory and did not contain anything that would detract the jury from a fair consideration of the evidence. See Leach , 132 So. 2d at 332. Thus, the photographs and diagrams of the bullet trajectories were relevant.
Appellant next argues that the trial court erred in denying his motion for judgment of acquittal of second-degree murder because there was no evidence Appellant exhibited ill will, spite, hatred, or evil intent. A ruling on a motion for judgment of acquittal is reviewed de novo. Dunn v. State , 206 So. 3d 802, 804 (Fla. 1st DCA 2016). "There is sufficient evidence to sustain a conviction if, after viewing the evidence in the light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt." Johnston v. State , 863 So. 2d 271, 283 (Fla. 2003).
Pursuant to section 782.04(2), Florida Statutes, second-degree murder is the "unlawful killing of a human being, when perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premediated design to effect the death of any particular individual." Although not required by statute, case law and the relevant jury instruction have defined an act as "imminently dangerous" and evincing a "depraved mind," if it is an act that: "(1) a person of ordinary judgment would know is reasonably certain to kill or do serious bodily injury to another; and (2) is done from ill will, hatred, spite or evil intent; and (3) is of such a nature that the act itself indicates an indifference to human life." Thompson v. State , 257 So. 3d 573, 579 (Fla. 1st DCA 2018) (quoting Wiley v. State , 60 So. 3d 588, 591 (Fla. 4th DCA 2011) ). An impulsive overreaction to an attack is insufficient to support a second-degree murder conviction. Thompson , 257 So. 3d at 579.
Based on the evidence, a rational trier of fact could determine that Appellant did far more than impulsively overreact to an attack and his action evinced a "depraved mind regardless of human life." The medical examiner determined that the victim's wounds were "distant" and some of them created a "downward" pathway. Additionally, there were numerous serious wounds on the victim inflicted by a firearm and physical force. On the day of the incident, Appellant told multiple people that he had "messed up" and that he believed he had "hurt someone." Appellant also made multiple phone calls but never attempted to call for help, during which time the victim's loss of blood resulted in her death.
When the evidence is considered in the light most favorable to the State and all reasonable inferences drawn in favor of the verdict, a rational trier of fact could find the existence of the elements of second-degree murder beyond a reasonable doubt. See Johnston , 863 So. 2d at 283. Thus, there was sufficient evidence for the trial court to deny Appellant's motion for judgment of acquittal. Tibbs v. State , 397 So. 2d 1120, 1123 (Fla. 1981) ("legal sufficiency alone, as opposed to evidentiary weight, is the appropriate concern of an appellate tribunal.").
Appellant's third and fourth arguments involve the jury instructions given at trial. Appellant argues the trial court erred by failing to give his requested instruction for second-degree murder and manslaughter while giving the initial-aggressor jury instruction. The giving or withholding of a proposed jury instruction is reviewed for abuse of discretion. Carle v. State , 983 So. 2d 693, 695 (Fla. 1st DCA 2008).
"While a defendant is entitled to have the jury instructed on his theory of defense, the failure to give special jury instructions does not constitute error where the instructions given adequately address the applicable legal standards." Stephens v. State , 787 So. 2d 747, 755 (Fla. 2001). To be entitled to a special jury instruction, a defendant must prove: "(1) the special instruction was supported by the evidence; (2) the standard instruction did not adequately cover the theory of defense; and (3) the special instruction was a correct statement of the law and not misleading or confusing." Id. at 756.
The standard jury instruction for second-degree murder discusses heat of passion based on adequate provocation:
An issue in this case is whether (defendant) did not have a depraved mind without regard for human life because [he] acted in the heat of passion based on adequate provocation. In order to find that the defendant did not have a depraved mind without regard for human life because [he] acted in the heat of passion based on adequate provocation:
a. there must have been a sudden event that would have suspended the exercise of judgment in an ordinary reasonable person; and
b. a reasonable person would have lost normal self-control and would have been driven by a blind and unreasoning fury; and
c. there was not a reasonable amount of time for a reasonable person to cool off; and
d. a reasonable person would not have cooled off before committing the act that caused death; and
e. (defendant) was, in fact, so provoked and did not cool off before [he] committed the act that caused the death of (victim).
If you have a reasonable doubt about whether the defendant had a depraved mind without regard for human life because [he] acted in the heat of passion based on adequate provocation, you should not find [him] guilty of Second Degree Murder.
Fla. Std. Jury Inst. (Crim.) 7.4.
Although the heat-of-passion instruction does not precisely track the wording requested by Appellant, it adequately supports the defense's theory that Appellant impulsively overreacted to an attack, causing the victim's death. See Stephens , 787 So. 2d at 755.
Furthermore, Appellant's requested instruction would be confusing to the jury, especially in relation to the manslaughter instruction. See id. Unlike the second-degree murder instruction, the manslaughter instruction does not use the phrase "ill will, hatred, spite, or evil intent:"
To prove the crime of Manslaughter, the State must prove the following two elements beyond a reasonable doubt:
1. (Victim) is dead.
2. (Defendant) intentionally committed an act or acts that caused the death of (victim).
Every person has a duty to act reasonably toward others. If there is a violation of that duty, without any conscious intention to harm, that violation is negligence. The defendant cannot be guilty of Manslaughter by committing a merely negligent act or if the killing was either justifiable or excusable homicide, as I have previously instructed you.
In order to convict of Manslaughter by act, it is not necessary for the State to prove that the defendant had an intent to cause death, only an intent to commit an act that was not merely negligent, justified, or excusable and which caused death.
Fla. Std. Jury Inst. (Crim.) 7.7.
Adding Appellant's requested instruction would be misleading and confusing to the jury, because an "impulsive overreaction" is not a defense to manslaughter. Perez v. State , 187 So. 3d 1279, 1280 (Fla. 1st DCA 2016) (defendant argued on appeal that shooting victim was "only an impulsive reaction... making manslaughter the highest suitable conviction" not second-degree murder); Sandhaus v. State , 200 So. 3d 112, 115 (Fla. 5th DCA 2016) (act of impulsively reacting to assault of Appellant's brother could not support second-degree murder verdict but did support manslaughter conviction). The trial court did not abuse its discretion in failing to give Appellant's requested jury instruction.
The trial court also did not abuse its discretion in giving the initial-aggressor instruction. "An initial aggressor instruction is proper when there is evidence in the record that the defendant may have initially provoked the use of force against himself." Thompson v. State , 257 So. 3d 573, 581 (Fla. 1st DCA 2018) (holding initial-aggressor instruction was proper where there were two altercations and the victim started the first one, but the defendant started the second one which led to the victim's death).
Appellant consistently admitted that he and the victim had an argument prior to the incident. Appellant told the detective that the argument occurred because the victim was upset about her family. Appellant also told both his social worker and his friend that he and the victim had gotten into a fight. During his testimony, Appellant stated that he said something that "struck a nerve" with the victim and made her upset. Based on this evidence, the jury could determine that Appellant's actions led to the altercation that caused the victim's death.
Additionally, a rational jury could also find Appellant became the initial aggressor during the altercation. See Thompson , 257 So. 3d at 581. Both of Appellant's neighbors heard loud noises, a short delay, and then what they thought were gunshots. Appellant could have become the initial aggressor during that delay. Furthermore, the gun shot trajectory and the victim's injuries support the theory that Appellant was the initial aggressor. Whether Appellant was the initial aggressor was a determination properly left to the jury.
Finally, Appellant argues that the State's remarks during its closing argument deprived Appellant of due process and a fair trial. A trial court's ruling on comments made within closing arguments will not be overturned absent an abuse of discretion. Hooper v. State , 476 So. 2d 1253, 1257 (Fla. 1985). To preserve an improper comment claim for appellate review, counsel must contemporaneously object to the improper comment. Merck v. State , 975 So. 2d 1054, 1061 (Fla. 2007). Unobjected-to comments are only grounds for reversal when they rise to the level of fundamental error. Id. Appellate courts consider "the cumulative effect of objected-to and unobjected-to comments when reviewing whether a defendant received a fair trial" Id. ; Johnson v. State , 177 So. 3d 1005, 1008 (Fla. 1st DCA 2015). Appellant argues the State committed a variety of errors during its closing argument.
Misstatements or Confusing Statements of Law
First, Appellant contends that the State misstated or made confusing statements of the law. See Evans v. State , 177 So. 3d 1219, 1235 (Fla. 2015) ("It is error for a prosecutor to misstate the law during closing arguments.") (receded from on other grounds). Appellant argues the State erred in its statement of the law regarding excusable homicide, reasonable inferences, the burden of proof for self-defense, and the reasonable-person standard.
When talking about heat of passion, the State said, "if you think there is a heat of passion, you can find it's not first-degree murder, but you can then get to second-degree murder and find it's a second-degree murder but the heat of passion in that instance didn't forgive it." The State did not instruct the jury that the heat-of-passion aspect of excusable homicide does not apply to second-degree murder, but only that the jury could so find. Additionally, the trial court instructed the jury on the heat-of-passion defense when it went over the second-degree murder instruction, supporting the conclusion that the State's statement was harmless even if it was in error. See Almeida v. State , 748 So. 2d 922, 927 (Fla. 1999).
Appellant also argues that the State incorrectly informed the jury that it had to accept the State's reasonable inferences. The State informed the jury that it had to "draw reasonable inferences from the evidence to get a common sense, logical conclusion about what happened." The State made it clear that the jury had to draw reasonable inferences from the evidence, so the State did not misstate the law. Lewis v. State , 754 So. 2d 897, 902 (Fla. 1st DCA 2000) (holding it is the jury's prerogative to decide between conflicting facts, to draw inferences from the facts, and to reach factual conclusions).
The State also did not misstate the law relating to the State's burden of proof as to self-defense. "If a defendant establishes a prima facie case of self-defense, the State must overcome the defense by rebuttal, or by inference in its case-in-chief." Andrews v. State , 577 So. 2d 650, 652 (Fla. 1st DCA 1991). When explaining the burden of proof for self-defense, the State told the jury, "We do not have to prove our case and in independently proving our case also prove that [Appellant] wasn't acting in self-defense." The State did not misstate the law because the State can overcome the burden of self-defense by inference in its case-in-chief. Id. Additionally, in a prior statement, the State informed the jury that it had the burden to prove Appellant wasn't acting in self-defense, rendering any error that may have occurred harmless. See Almeida , 748 So. 2d at 927.
Finally, Appellant argues the State committed fundamental error by improperly referencing the reasonable-person standard when discussing excusable homicide. The excusable-homicide instruction contains a section about heat of passion and makes numerous references to the "reasonable person." Fla. Std. Jury Inst. (Crim.) 7.2; see also Paz v. State , 777 So. 2d 983, 984 (Fla. 3d DCA 2000). In the challenged portion of the State's closing argument, the State referenced the "reasonable person" as it relates to heat of passion, which is part of the excusable-homicide instruction. Therefore, the State did not misstate the law and no error occurred.
Because defense counsel failed to contemporaneously object at the time the State made the comment, this argument is reviewed for fundamental error. Merck , 975 So. 2d at 1061.
Denigration of Defense
Appellant asserts that the State improperly made comments that denigrated defense counsel or Appellant. See Cardona v. State , 185 So. 3d 514, 523-25 (Fla. 2016). "While a prosecutor may ‘not ridicule or otherwise improperly attack the defense's theory of the case,’ a prosecutor is permitted to suggest to the jury that ‘based on the evidence of the case, they should question the plausibility of the defense's theory.’ " Davis v. State , 136 So. 3d 1169, 1203 (Fla. 2014) (quoting Valentine v. State , 98 So. 3d 44, 55-56 (Fla. 2012) ). Such argument is entirely proper in an adversarial proceeding.
Appellant argues the State's remark that one of Appellant's statements was "tone deaf" when there was a dead woman lying on his floor was improper. The State's comment, however, was a permissible expression of the inference that Appellant's statements were inconsistent with the other evidence and was not a derisive comment made merely to offend. See Davis , 136 So. 3d at 1204. Thus, the State did not commit error.
As part of his defense, Appellant argued he had to use self-defense because he believed someone had broken into his home, obtained the bag containing his gun, and intended to harm him. In its closing argument the State commented that in relation to Appellant's use of self-defense, the kind of burglary the victim would have committed was lesser than "the kind of burglary that is the law." Defense counsel objected and the trial court sustained the objection, stating that the law of self-defense does not make a distinction between the type or level of burglary. No curative instruction was given, which Appellant now claims was error. When a trial court sustains an objection, the defendant must request a curative instruction or a mistrial to preserve the issue for appeal. Wilson v. State , 436 So. 2d 908, 910 (Fla. 1983) ; Thomas v. State , 701 So. 2d 891, 892 (Fla. 1st DCA 1997). Here, Appellant failed to request a curative instruction or a mistrial, so this issue is reviewed for fundamental error. See Wilson v. State , 549 So. 2d 702, 703 (Fla. 1st DCA 1989).
The record does not indicate that the trial court's failure to give a curative instruction was fundamental error. The topic of burglary was discussed in relation to Appellant's use of self-defense. There was enough additional evidence presented that the jury could find Appellant did not act in self-defense without a curative instruction on burglary. Thus, the trial court's failure to give a curative instruction was not fundamental error.
Finally, Appellant claims the State denigrated his claim that he was wary of talking to the police because of an incident that occurred when his brother was shot and killed years earlier. When referring to the incident concerning Appellant's brother, the State was referencing Appellant's credibility. See Davis , 136 So. 3d at 1204. Thus, no error occurred.
Defense counsel did not object to this statement, so this argument is reviewed for fundamental error. Merck , 975 So. 2d at 1061.
Appeals to Sympathy and Justice for the Victim
Appellant argues that the State erred in appealing to the jury's sympathy and requesting justice for the victim. Watts v. State , 593 So. 2d 198, 203 (Fla. 1992).
The State argued on multiple occasions that the victim "was not here to tell us what happened." Defense counsel objected to the argument as an improper appeal to sympathy, but the State's comments were permissible because they were not used to inflame the minds and passions of the jurors. See Cardona , 185 So. 3d at 521-22. The jury was fully aware that the victim was dead and unable to speak at trial. Additionally, when read in context, the State reminded the jury to rely on the evidence presented during the State's case. Because the State was not attempting to inflame the minds and passions of the jurors, its statements were not an improper appeal to the jury's sympathy. See id.
Improper Burden Shifting
Appellant argues that the State improperly shifted the burden of proof to Appellant. A prosecutor may comment on the defendant's failure to produce evidence when the defendant assumes some of the burden of proof by asserting a defense such as self-defense. Jackson v. State , 575 So. 2d 181, 188 (Fla. 1991). The State said that "you haven't heard any evidence that [the victim] is somehow an angry drunk." Appellant argues this was improper burden shifting, but the State made this argument in reference to Appellant's claim of self-defense. Additionally, throughout the State's closing argument the State made it clear to the jury that it had to prove Appellant was guilty beyond a reasonable doubt. When the cumulative effect is considered, the State did not improperly shift the burden onto Appellant. Merck , 975 So. 2d at 1061.
Defense counsel did not object to the comment during trial, so this argument is reviewed for fundamental error. Merck , 975 So. 2d at 1061.
Facts Not in Evidence
Appellant's fifth argument is that the State argued facts not in evidence. It is improper for the State to comment on matters unsupported by the evidence produced at trial. Huff v. State , 437 So. 2d 1087, 1090 (Fla. 1983).
Defense counsel objected on numerous occasions that the State argued inferences and conclusions not in evidence. The trial court correctly overruled the objections. The State merely interpreted the evidence and drew conclusions from those interpretations. See McKenzie v. State , 830 So. 2d 234, 238 (Fla. 4th DCA 2002). These interpretations included the order in which the shots occurred, the victim moving away as she was shot, Appellant "terrorizing" the victim, and the victim's phone remaining at Appellant's house all night. The arguments made by the State were based on facts in evidence or fair inferences that could be made from those facts. As a result, the trial court did not abuse its discretion in overruling defense counsel's objections.
Appellant argues that the trial court erred when it failed to give a curative instruction to the State's comment, "I don't prosecute nor does my office prosecute with sexism." Appellant's objection was sustained, and he requested a curative instruction, so the issue was properly preserved for appeal. See Santos v. State , 254 So. 3d 437, 439 (Fla. 4th DCA 2018) ; Wilson v. State , 549 So. 2d 702, 703 (Fla. 1st DCA 1989).
The trial court has discretion in determining whether to give a curative instruction. See Salazar v. State , 991 So. 2d 364, 372 (Fla. 2008) ("[t]he trial court had the discretion not to give a curative instruction if it believed that doing so would draw further attention to the improper comment."). A curative instruction is used when it can cure potential prejudice. See Turner v. State , 51 So. 3d 542, 543 (Fla. 5th DCA 2010) ; Gonzalez v. State , 450 So. 2d 585, 586 (Fla. 3d DCA 1984). The State's comment had little relation to the jury's verdict and Appellant's case and did not prejudice Appellant. Because the State's comment did not prejudice Appellant, the trial court did not err in declining to give the curative instruction.
Cumulative Error
Finally, Appellant argues that if none of the State's comments were improper standing alone, their cumulative effect deprived Appellant of a fair trial. "[T]he reviewing court may find the cumulative effect of improper comments to be so prejudicial as to deprive the defendant of a fair trial, requiring reversal." Simmons v. State , 257 So. 3d 1121, 1129 (Fla. 1st DCA 2018). However, where all individual claims of prosecutorial misconduct are meritless, a cumulative error claim also fails. Id. The cumulative effect of any errors in the State's closing argument did not compromise the integrity of Appellant's trial. The State's comments did not go to the heart of the case and did not unduly pressure the jury. See Braddy v. State , 111 So. 3d 810, 843-44 (Fla. 2012) (holding that prosecutor's improper comments did not compromise the integrity of Braddy's trial because the comments did not go to the heart of the case). Thus, the State's comments did not deprive Appellant of a fair trial.
AFFIRMED .
Bilbrey and M.K. Thomas, JJ., concur.